1727447 (Refugee)

1727447 (Refugee) [2022] AATA 4393 (2 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1727447
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:David McCulloch
DATE:2 September 2022
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 02 September 2022 at 10:33am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – race – Tamil – political opinion – former resident in an LTTE controlled area – transporting LTTE members during the period of the conflict – involvement with Tamil political advocacy groups in Australia – wish to engage in separatist activism on return to Sri Lanka – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 9 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 11 May 2016. The delegate refused to grant the visa.
The applicant first appeared before the Tribunal on 28 April 2022 at 9.30am to give evidence and present arguments. The hearing was not completed and adjourned to another date. The resumed hearing was held on 11 August 2022 at 9.30am.
The Tribunal hearings was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The applicant was represented by a registered migration agent who attended both hearings.
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 5K-5LA, 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. The Tribunal has before it the DFAT Country Information Report – Sri Lanka, 23 December 2021, a copy of which was provided to the applicant in advance of the hearing.
CONSIDERATION OF Claims and evidence
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant’s migration history is extracted from the delegate’s decision record. The applicant departed Sri Lanka lawfully to [Country 1] and [Country 2]. He departed [Country 2] by boat to travel to Australia illegally. He arrived in Australia as an unauthorised maritime arrival (UMA) [in] December 2011. The applicant attended an entry interview on 4 January 2012. The applicant lodged an application for a Protection Obligations Evaluation (POE) on 28 February 2012. The outcome of the POE was recorded on 23 April 2012 as negative. On 22 May 2012, the applicant was granted a Humanitarian Stay (Temporary) (Class UJ) Subclass 499 visa and a Bridging visa (Class WE) Subclass 050. On that day, he was released from immigration detention. On 23 October 2012, the applicant was given a positive outcome on his Independent Protection Assessment (IPA). The applicant lodged a Safe Haven Enterprise Visa (SHEV) on 13 May 2016.
The applicant went to [Country 3] from 1998 to July 2000, [Country 4] from August 2010 to September 2010, [Country 1] in March 2011 and [Country 2] from March 2011 to November 2011. The reason for his travels was to flee from persecution.
The following information is apparent from the application for SHEV forms. The applicant was born on [date] in [City 1], Northern Province, Sri Lanka. The applicant is a Hindu of Tamil ethnicity who speaks Tamil, English (poor) and Sinhala (poor). He reads and writes Tamil. The applicant was married [in] February 2006 in Sri Lanka. The applicant’s parents are deceased. The applicant has [number] brothers who reside in Sri Lanka and [number] sisters who reside in [Country 5]. The applicant is in contact with his family weekly with the application ‘Viber’. The applicant lived at five addresses in Sri Lanka from birth until 1998. He stayed at [an] Army Camp in [City 2] from March 1996 until September 1996. The applicant lived in [Country 3] from 1998 to July 2000. The applicant returned to Sri Lanka and lived at nine addresses from July 2000 until August 2010. The applicant lived in [Country 4] from August 2010 until September 2010. The applicant returned to Sri Lanka and lived at three addresses from September 2010 until March 2011. He spent time in [Country 1] and at sea in March 2011. He lived in [Country 2] from March 2011 until November 2011.
The applicant attended [School 1] from 1980 until 1983, [School 2] from 1983 until 1985 and [School 3]. The applicant helped at his family farm from 1987 until 1995. The applicant worked various jobs including self employment in Sri Lanka from 1991 until March 2011. He worked during his stay in [Country 3] at a sheep farm. He was unemployed while in [Country 1] and [Country 2]. He worked for two employers in Australia from 2012 until December 2013. At the time of application, the applicant was unemployed.
The applicant provided a statutory declaration, declared on 11 May 2016, setting out his claims for protection as follows (headings and footings omitted, emphasis removed, not corrected for spelling or grammar):
1.     I, [the applicant] of [Address 1] in the State of Sydney, Unemployed, make the following declaration under the Statutory Declarations Act 1959 (Cth):
COUNTRY TO WHICH I CANNOT RETURN
2.     I am a [age] year old male citizen of Sri Lanka born in [City 1], Northern Province.
3.     I am afraid to return to Sri Lanka.
4.     Annexed hereto and marked:
a.     A is a certified copy of my Sri Lankan birth certificate and corresponding translation;
b.     B is a certified copy of my Sri Lankan driver's licence; and
c.     C a copy of my National ID Card and corresponding translation.
WHY I LEFT THAT COUNTRY, HARM EXPERIENCED AND WHO CAUSED IT
1997: I was continuously harassed by the Sri Lankan Army (“Army”)
5.     Sometime in about 1997, I would be regularly slopped by the Army and asked to show my National ID card.
6.     On one occasion, I was taken to the local Police station and detained overnight. Whist I was, I was questioned about where I was residing and where I was travelling to.
1998 – Jul-2000: I relocated to [Country 3]
7.     Sometime in about 1998, unable to bear the constant harassment by the Army I relocated to [Country 3] on a working visa
8.     However, sometime in about July 2010, [sic], I returned back to Sri Lanka as my two year working visa had expired.
2003: My brother and I ran [a] business
9.     Sometime in about 2003 until my brother [Brother A] sold the [vehicle] in 2009, he and I ran a side [business] using a [vehicle].
May 2006: Unidentified men came to my home demanding money
10. In or around May 2006, at approximately 11pm, two men came upstairs to my house and demanded money from me. I also saw two other men downstairs at the entrance. They threatened to kill me and my family if I did not give them all I had. These men did not say who they were, or where they came from. They were in plain clothes and had guns on them. I was recently married, had some cash in the house that needed to be deposited for his business. I instead gave it all to them, as I feared for my life and my family. I recall it was around 300,000 Rupees.
2008: My brother and I were being suspected of assisting the Liberation Tigers of Tamil Eelam (“LTTE”)
11. Early 2008, the Sri Lankan Army suspected that [Brother A] and I were assisting the LTTE through our [business]. They often accused us of helping the LTTE by transporting people around and often confiscated our [vehicle] for their own use.
Jun-2008: Sri Lankan Police and Criminal Investigation Division ("CID") inspect my shop
12. In or around June 2008, three Sri Lankan Police and two CID officers came to my shop and said they wanted to inspect my shop. The policemen were in uniform and CID came with their ID, which they showed me. After looking around the shop for a little hit, they said that they needed to conduct further inquiries and took me to the police station in [Suburb 1] in the police jeep.
13. I was kept in the police station overnight. The CID and Sri Lankan Police asked me details about where I had lived, when I had moved and took my fingerprints. The next day, the police said they will be sending me to the fourth floor of CID building in [Suburb 2] for further investigation.
14. When I arrived in this CID building, the officer started to slap me, beat me and hit me continuously with a wooden baton. He kept asking if I had given money to the LTTE and what my involvement with the LTTE was. They accused me of being a supporter to the LTTE. I said I have no connection with the LTTE. The only thing I could think of that would lead them to think they would suspect me was the incident two years ago where I handed money to people who came to my house. I told the officer about the incident two years ago but also said I did not know who they were.
15. Regardless, he continued to beat me and did not believe me. I was told they will need to investigate me further. I was arbitrarily detained for 6 month. Around every two weeks, I would be called into their investigation room where they would question me about my LTTE involvement. The officers kept saying "when are you going to tell us the truth” and would constantly beat me.
Dec-2008: I was released from the fourth floor CID building
16. In or around December 2008, I was eventually released. The CID took me to [Suburb 1] police station, where I was told to sign their register and then released. The CID and Sri Lankan Police both told me that whenever I am called by them, that I would need to go there and sign in their register.
Dec-2008: I relocated to [City 1]
17. I then went to [City 1] for two months to recover from injuries of assault.
Jul-2009: Unidentified men visited my home, demanding money
18. In or around July 2009, again my house was visited by about three men in plain clothes, who demanded money. I tried to argue with them as I did not know who they were. They pointed their gun to my forehead and they hit my father in law. I said that I did not have any money and eventually they left, warning us that they will be watching us.
Jan-2010: My father-in-law is shot and killed
19. In January 2010, both my step daughter and son felt ill. My wife and I had to take them to a hospital in Colombo. Whilst we were in Colombo for my children's treatment, I received a call from a regular customer at our shop, telling me that my father in law had been shot inside the shop. My father in law was running the shop together with me in [Town 1]. Both my wife and I were so shocked and we immediately made plans to travel back to [Town 1]. We hired a van back to [Town 1].
20. When we arrived in [Town 1] the same afternoon, my father in laws body was still inside the shop. There were police in the premises trying to process the incident. We were not told who had done this to my father in law. I could not think why anyone would want to kill my father-in-law.
May 2010: My family and I relocated to [City 1]
21. After this, we felt it was unsafe to stay in [Town 1] and decided to go back to [City 1]. In or around May 2010, we closed the shop and moved to [City 1].
2010: I receive a call from an identified Sinhalese man
22. About two weeks later, I received a call on my mobile from a man who spoke Sinhalese to me. He said that I needed to talk to him. He called me by my name. I asked him who he was and to identify himself but he refused to do so. He demanded I go to a particular place to see him to talk but I said that without knowing who he is I won't go and hung up on him. After this incident, I changed my phone number because I was scared.
2010: May family and I hear knocks on our house doors
23. Around 2 weeks later at around 1 1pm or midnight, we heard knocks on our house doors, it seemed that there were several people outside our house. We have three doors in the house and it was being knocked around the same time. We shouted “thief” and put lights on in the hope that it would raise attention of our neighbours. Shortly after, the knocking stopped and it seemed that the perpetrators had run away.
24. Shortly afterwards, we came out to investigate. It was quiet outside and we saw the neighbours coming towards us to see what had happened.
25. The next day we made a complaint about the incident to the Sri Lanka Army. I also told our uncle (mother's side) who lived three houses away about what happened and that I would call him if the same thing happened. I asked him to come and help if I called him.
26. About one month later, we again heard knocking on our door. I called my uncle, turned the lights on and yelled out "thief". Luckily the knocking stopped. About half an hour later we went outside to investigate who had caused the knocking.
27. My uncle told me that when he received the call from me, him and his children went outside to see what was happening but were stopped by army personnel who told them to go back inside the house and that there was no problem. My uncle said he saw a van take off from outside my house.
Jul-2010: I relocated to Colombo
28. In or around July 2010, I felt that it was not safe for me to stay here and moved to Colombo.
Aug-2010 – Sep-2010: I relocated to [City 3], [Country 4]
29. In or around August 2010, fearing that it was not safe for me to remain in Sri Lanka, I relocated to [City 3], [Country 4].
30. In or around September 2010, unable to obtain a work permit, I had no choice but to return to Sri Lanka.
[March] 2011: I was taken, beaten and tortured by three men purporting to me from the CID
31. On or around [March] 2011 around 7pm, I was taken by three men for what they said was an "enquiry". They came to my house, presented themselves as ClD officers and flashed their ID to me. They asked me for my identification documents. I showed them my identification documents, which included my National ID card. They said I needed to bring these documents to their premises for investigation. They took me into a white van, which was waiting outside.
32. Inside the van, I saw that we were passing the police station and I asked why we were not going there. Due to my previous experience, I thought the enquiry would be with the police. When I asked these men, they blindfolded me, tied my mouth, hit me and secured my hands behind my back.
33. I was taken inside a facility. When I said I needed to go to the bathroom, they removed my blindfold and let me go to the toilet. I realised that we were inside some sort of a house.
34. Here, I was beaten and tortured. They also demanded me for money.
35. They mentioned that I had already refused to give them money in the past. I said I did not have any money and that my father-in-law had died. These men said that they knew my father-in-law had died. I then started to suspect that they were involved in the killing of my father-in-law.
36. I was detained in this house with barely any water or food. I was beaten severely and felt so helpless. They took all my identification documents I had with me.
2011: I escaped from the home
37. On the fourth night of being detained, I asked to go to the toilet. I then tried to escape through the toilet window. I ran out through this window and was just in my underwear. I tried to find my way around but did not know where to go or where to seek help. That night I slept in a canal that I saw nearby.
2011: I sought assistance from people in a nearby home
38. The next day I went to a nearby house and explained to them what happened. They let me inside and allowed me to call my wife at home. These people informed me that I was in [Town 2]. When I called home, I spoke to my wife who was so worried for me. She said both her and my mother have been looking for me and seeking help from others to find out what had happened to me. She also told me that my mother had passed away as a result of stress of knowing I was taken. I was so deeply saddened.
39. My wife told me that it is not safe for my return. She said she will move back to [City 1] with our son as it is not safe in Colombo. Although I wanted to go back to attend to my mother's funeral, she said my life is in danger and that I should flee Sri Lanka.
40. The people in the house again helped me. I was able to call my wife's uncle, [Mr B] and ask for his help. He came to pick me up later. He took me to his home and I stayed in hiding in his house until I escaped the country.
41. Whilst I was in hiding, [Mr B] enlisted the help of an agent to assist me to flee Sri Lanka.
42. In or around March 2011, I fled to [Country 1] on a fraudulent passport. I remained in [Country 1] for approximately one week before traveling to [Country 2] on a boat. Whilst I was in [Country 2], I registered with the UNCHR. These things have all happened to be but I was not able to tell the whole story to UNHOR in [Country 2] when I was being registered. I did not trust the system in [Country 2]. I was scared that I told my whole story and was deported back to Sri Lanka, I will be even more in danger for the things I have said. Annexed hereto and marked D is a copy of my UNHCR certificate.
43. On or around November 2011, I travelled from [Country 2] to Australia on a boat.
HELP I SOUGHT
44. I have previously made a complaint to the Sri Lankan Army about knocking I heard at my home. However, this incident continued to occur. I was unable to seek any further assistance from the authorities, as they have previously harmed me.
ATTEMPTS TO PELOCATE
45. I have attempted to relocate within Sri Lanka, however my family and I continued to be targeted.
WHAT I FEAR WILL HAPPEN IF I RETURN TO THAT COUNTRY, HARM OR MISTREATMENT I FEAR
46. I fear that I will be detained, interrogated, abused, tortured and / or killed.
WHO WILL HARM I MISTREAT ME
47. I fear I will be harmed / mistreated by the by the Sri Lankan authorities, including the CID, pro-government groups and Police and unidentified men who have previously attended my home.
WHY I WILL BE HARMED I MISTREATED
48. I fear that I will be harmed / mistreated for reasons of my race: I am Tamil.
49. I fear that I will be harmed I mistreated for reasons of my imputed political opinion: I am perceived to be a member of, or associated with the LTTE. The authorities believe I have assisted the LTTE through my [business].
50. I fear that I will be harmed / mistreated for reasons of my membership to a particular social groups.
a.     failed Sri Lankan asylum seekers. I will be detained upon arrival, interrogated and subjected to significant harm. This is exacerbated by the fact that the Sri Lankan authorities believe I am associated with the LTTE.
b.     Wealthy Tamils: I have previously been visited by unidentified men demanding I provide them money. As I have previously complied with their request, I feel that if I return they will continue to harass me. This is very exacerbated by the fact that I have remained in Australia for a significant period of time.
51. I also fear the above harms will about to significant harm. In particular, I fear that I will be detained at the airport upon my arrival in Sri Lanka. I have a higher likelihood of being detained for a significant period of time on account of the above reasons. I fear that this will cause the Sri Lankan authorities to detain me for a greater than average period of time before they release me (if at all). I believe any contact with the Sri Lankan detention system will amount to significant harm.
WHY THE COUNTRY’S AUTHORITIES WILL NOT PROTECT ME
52. I fear the authorities – they will not protect me.
WHY I AM UNABLE TO RELOCATE
53. I am unable to relocate to another area as the Sri Lankan authorities have complete control of the country and I would be required to register with the Grama Sevaka of any area I relocate to. Accordingly, the Sri Lanka authorities will be able to find my whereabouts.
54. I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under s 11 of the Statutory Declarations Act 1959 (Cth), and I believe that the statements in this declaration are true in every particular.

The submission provided on behalf of the applicant to the Department dated 22 September 2017 clarifies that the applicant claims protection for the following reasons:
·his ethnicity, namely Tamil;
·as a Tamil business owner who is wealthy and perceived to be wealthy;
·as a former resident of an LTTE control area with imputed political opinion in support of the LTTE;
·his profile as a failed asylum seeker, imputed and actual political opinion and being in support of or connected to the LTTE;
·for having left Sri Lanka on an illegal passport and the penalties the applicant will face because of this and the fact that it will cause questioning by authorities which would result in his earlier adverse encounters with authorities becoming apparent.
The submission which was provided after the interview with the delegate responds to certain information put to the applicant in the interview and tentative adverse conclusions made by the delegate. It makes submissions on concerns put concerning the applicant’s passport. Submissions are made in relation to it being put to the applicant is no longer wealthy and does not fit into that particular social group. The submission indicates the applicant will re-establish himself as a businessman and will once again be targeted. Reference is made to systemic discrimination well after the end of the war. Independent information is referred to as to paramilitaries been responsible for harassment, extortion and abduction.
Submissions are made in relation to the applicant not continuing to be of adverse interest after he was released from prison after six months in 2008. It is noted that the applicant was required to regularly present himself to authorities.
Submissions are made in relation to the fact that the applicant was not a combatant and since the end of the conflict active combatants were arrested and put into rehabilitation camps and released and not persecuted. Independent information is referred to. Submissions are made in relation to the Sri Lankan government implementing workable programs to achieve as safety for the applicant on return. Reference again is made to independent information.
The applicant provided an additional statement to the Tribunal dated 20 April 2022 which read as follows (not corrected for spelling and grammar):
The applicant is born in [Village 1], [City 1], Northern Province of Sri-Lanka on [date]
The applicant’s father died of natural causes in 1987.
In 1995 the applicant’s family was displaced to [City 4] in the Vanni District due to conflict arising between the LTTE and paramilitary groups.
In 1996 the applicant, his mother and older sister planned to travel to Colombo, as a wedding alliance was fixed for his siter, and the groom was in [Country 6]. The applicant’s sister needed to be in Colombo to apply for passport and to lodge the required visa application. The applicant and his mother decided to accompany his sister and be with her until her departure to [Country 6]. However, because the applicant and his family were travelling out of an LTTE area they were detained on route to Colombo by the Sri-Lankan Army and detained at [a] Camp. The applicant and his family were then moved to [an] Army Camp in [City 2] for 6 months.
Whilst at the Army camp a bribe was paid to the officers, and travel permits were issued to the applicant, his sister and his mother, so that they could travel to Colombo.
The applicant began residing with his family in Colombo in [Suburb 3], however struggled to find employment because of his Tamil Ethnicity. He would regularly be subjected to questioning by the Sri-Lankan Army and asked to produce his National ID Card. He was also subject to arbitrary detention by the local police and detained overnight. As a Tamil male he was constantly stopped and interrogated about his activities in his former place of residence.
Wanting a peaceful life, and wanting to secure employment, the applicant relocated to [Country 3] on a two year working visa where he worked for two years until approximately July 2001. His working visa was due to expire.
In October 2001, the applicant found employment as a salesperson for a [shop] called [Business 1].
In 2003, during the cease fire period, the applicant, and his brother, [Brother A] purchased a [vehicle] together and began operating a [business] together. They would be responsible for transporting people from Colombo to [City 1], and [City 1] to Colombo. This route used was via the [specified] highway, through the [specified] Checkpoint in [City 2], which was a checkpoint under the control of the Sri-Lankan Army. The Sri-Lankan Army would open this checkpoint in the morning and allow vehicles to pass. There would be a queue of vehicles lining up waiting for the Sri-Lankan Army to open up the checkpoint. This was the SLA’s last checkpoint, and beyond this was when the LTTE controlled area began. At the LTTE checkpoint, the applicant and all his passengers would need to embark from the [vehicle] and line up. There would be massive lines where individuals would wait for the LTTE to check the belongings of the passengers before allowing the passengers to reembark the [vehicle] and to continue their journey. On the applicant’s first trip to [City 1], the applicant was told at the LTTE checkpoint to go to the nearby LTTE office and obtain a travel permit to enter into LTTE controlled area. The applicant had to pay money to obtain this permit, and applicant was required to renew this permit depending on how long it was issued to the applicant.
The [business] eventually became a side business and in August 2004, the applicant operated a [shop] with his brother in Colombo.
During this time, an individual in civil uniform visited the applicant’s shop and showed him his LTTE ID and introduced himself to the applicant and said that the head of the political division in Vanni needed to speak with him. When the applicant was next travelling to [City 1] he stopped in Vanni to speak with the political division. The applicant was requested to assist the LTTE, by transporting its’ members to various locations on route between Colombo to [City 1]. The applicant was advised to keep this confidential, and he only confided in his brother. The applicant would receive a phone call informing him of who he had to pick up and where he needed to drop them off. The applicant continued to do this until the [specified] highway was closed towards the end of 2006.
The applicant’s role was to ensure that his vehicles were able to pass through checkpoints with LTTE members on board without any problems
The applicant’s [shop] was doing well and he was earning a substantive income per month. The shop was a large shop, and the applicant resided in a house on top of the shop. The applicant was perceived to be wealthy within the community.
The applicant’s brother married in 2005 and after this time, played a less active role in the [business] and in the shop. It was evident to the public that it was the applicant’s shop and [business] was under the control of the applicant.
In around May 2006, the applicant was threatened by men dressed in plain clothing, who had come to his house at night demanding money. They did not identify themselves, and they threatened to kill the applicant and his family. The applicant felt he had no choice but to oblige so he handed over 300,000 rupees. This money was meant to be deposited at the bank the next day.
The applicant reported this incident to the police, but the Police did not take his complaint seriously and did not identify those who were responsible.
As the ceasefire ended in the end of 2006 and the [specified] highway closed, the applicant’s [business] shifted towards transporting individuals in Colombo to the airport .
At the beginning of 2008, the Sri-Lankan Army approached the applicant and demanded the use of their [vehicles]. They did not pay for the use of the [vehicles] and sometimes took the [vehicle] for fifteen days at a time. They would accuse us of assisting the LTTE and transporting their personnel and essentially confiscated the applicant’s [vehicle] for their own use.
In June 2008, three uniformed Police officers and two CID officers came to the applicant’s shop. They looked around the shop and then said that they had to take the applicant for questioning. The applicant was taken to [Suburb 1] Police station in their jeep, where he was held overnight At the police station the applicant’s photo and fingerprints were taken. The applicant was then detained for 6 months at the 4th floor of the CID building in [Suburb 2].
The applicant was beaten and tortured at the CID building and the officers began accusing him of providing money to the LTTE. They also accused the applicant of supporting the LTTE. The applicant denied all involvement with the LTTE, but he was persistently beaten and asked to confess. During his detention the applicant was visited by the Red Cross, however the applicant did not reveal to them that he was being beaten and threatened.
During the investigation the applicant told the CID that he had provided unknown men with 300,000 rupees back in 2006. The CID continued to beat the applicant and demanded that he confess to assisting the LTTE.
The applicant was detained for 6 months, and every two weeks was subjected to interrogations where he was beaten and tortured.
The applicant’s wife hired a lawyer to request his release and filed a court application for his release.
In December 2008, the applicant was released on reporting conditions, after having to sign papers at [Suburb 1] Police Station. The applicant had to initially sign at the police station every day and then every Sunday for three months.
After a month after his release the applicant sold his businesses and travelled to [City 1]. Prior to leaving, he informed the police station that he is going to [City 1] to his native village. He was told that he needed to report to [specified] Police Station in [City 1] every Sunday. The police informed the applicant that he must respond immediately to any reporting requests to Colombo.
The applicant remained at home in [City 1], to recover from his injuries that he suffered from his detention.
Around two months later he moved to [Town 1], when his reporting conditions ceased as his father in law needed assistance at his shop. The applicant began assisting his father-in-law with his [business].
In July 2009, the applicant was again visited by men who demanded money. It was evident to the public eye that the applicant and his family were well off because of the size of the shop, nature of the business and their property. The claimant’s father in law said that they did not have money. The applicant again reported this incident to the police, however like before no action was taken.
In January 2010, the applicant’s father in law was shot at the shop.
Fearing for his safety, the applicant closed the shop and again moved back to [City 1] in May 2010.
Around two weeks after arriving in [City 1] the applicant received a call from an unknown Sinhalese person who requested they meet in [Town 1]. The applicant’s wife was very scared and they turned off his phone and changed sims. The applicant then began hearing knocking of their door at night time, and on one instance saw a van outside.
The applicant became increasingly concerned about his safety, and began making arrangements through his uncle to depart Sri-Lanka. His uncle advised that he come to Colombo whilst arrangements are being made, as he may have to suddenly just depart. The applicant travelled to Colombo in around July 2010. The applicant’s previous passport had since expired, so the applicant’s passport needed to be renewed. The applicant expressed that he was to scared to depart Sri-Lanka via the airport, but he was reassured, that an agent would make all the necessary arrangements for his departure. The applicant’s wife sent him documents that the agent requested including his NID Card.
The agent arranged for the renewal of his passport as well as arrangements for him to pass safely through the airport. Money was paid to facilitate these arrangements.
In around August 2010, the applicant departed Sri-Lanka.
The applicant was advised by the agent that, he would travel to [Country 4] and apply for a working visa, which will allow the agent time to make arrangements for him to depart to Europe. However, once the applicant arrived in [Country 4], the agent was unable to organise a working visa for the applicant, and he had no option but to return to Sri-Lanka. He was assured by the agent that he would not face any problems re-entering the country, as he will make arrangements at the airport for him to pass through unnoticed.
The applicant arrived back in Sri-Lanka in around September 2010. The agent arranged for another passport for the applicant under a different spelling so that arrangements can be made to depart Sri-Lanka again. The agent took the applicant’s passport, and it was mislocated. The agent advised the applicant that another passport should be obtained with a different spelling of his name. This passport was issued in November 2010.
In around March 2011, the applicant was taken by three men who identified themselves as the CID. The CID officers demanded that the applicant show him his NID Card. The applicant was then told he was needed for questioning and taken into a van. When the applicant asked where he was being taken, and why he was not taken to the police station, he was beaten, blindfolded and mouth was tied as well as his hands.
The applicant was taken inside a house. It was demanded that he give them money, and the applicant pleaded with them saying that he had no money. To the applicant’s surprise these men were aware that his father in law was dead, which made the applicant believe that they killed him. The applicant believed that he would also be killed as he had no money to give them. He decided that the only way was for him to escape.
To the applicant’s surprise the applicant’s blindfold and hand ties were removed when he was taken to the toilet. He was pushed into the toilet and the man would wait outside. The toilet had a window which allowed him to see outside. The window was too small for the applicant to escape through. The applicant decided that if he was given another opportunity where only one man took him to the toilet like the first time, he would make a run for it.
On the second night, the applicant asked to go to the toilet. Again the applicant was taken by one man and did not hear anyone else around. The applicant’s blindfold and hand ties were removed and he was pushed into the toilet. The applicant would knock to signal that he was ready to come out. As soon as he heard the man unlocking the door, he summoned all his energy and force and pushed the door. The mane fell and the applicant ran for his life over the nearing fence. The applicant continued to run until he was sure that he had got over and no one was behind him. The applicant eventually came across a house where he stopped and asked he can make a phone call. The applicant provided his wife with details of where he was and she arranged for an uncle to pick him up from [Town 2].
The uncle came and picked up the applicant and took him to [Suburb 4], where he resided for 12 days. The applicant’s uncle made arrangements for him to travel to [Country 1] through a different agent. Prior to his departure the applicant’s wife brough to him his passport .
During the applicant’s time in Australia he has engaged in, actively participated and helped organize many activities that are imputed with support for the LTTE. The applicant voluntarily attended these events as he himself is an LTTE sympathizer. The applicant has also attended various protests in Sydney, vocalising his opinion against the Sri-Lankan regime.
A further submission was provided to the Tribunal in relation to this application shortly in advance of the hearing dated 20 April 2022. The Tribunal notes the following of relevance from the submission.
The submission indicates that the grounds on which the applicant is claiming protection are:
·his prior detention at the CID fifth floor for six months in 2008;
·operation of the [specified] business where he assisted the LTTE and transported its cadres;
·allegations that he provided financial support to the LTTE;
·imputed political opinion as anti-government and pro-LTTE;
·as a person who is involved in political activities against the Sri Lankan regime during his time in Australia;
·as a failed asylum seeker returning to Sri Lanka from a Western country after leaving Sri Lanka illegally.
The submission details factual claims as to what the applicant claims occurred to him in Sri Lanka with additional information. The submission highlights a new claim made by the applicant that he had when operating his [business] knowingly transported LTTE members throughout the operation of his business. It is indicated that this information was not previously disclosed because the applicant was scared that he would be sent back to Sr Lanka if this was disclosed. The applicant now wants to provide an honest and accurate recollection of his circumstances.
In terms of the grounds for claiming protection, in addition to what has previously been claimed, it is submitted that the applicant faces harm as a result of his political activities against the Sri Lankan regime during his time in Australia.
Submissions are made in relation to the delegate’s decision dated 9 October 2017, particularly in the view by the delegate that the applicant embellished his account of being detained in the house where he managed to escape. Submissions are made in terms of adverse conclusions made by the delegate in terms of issues surrounding the passport that the applicant left Sri Lanka on in March 2011. It is submitted that inconsistencies with respect to the applicant’s passport have been caused by the applicant not understanding which passport he was being questioned about. Additionally, there has been confusion in terms of the applicant stating that his prior passport was lost after he came back from [Country 3], however this was not the case. The passport was lost after he returned from [Country 4]. Independent evidence is provided concerning passport fraud in Sri Lanka.
Submissions are made in relation to the applicant’s political involvement in Sri Lanka. The recent supporting statement provided to the Tribunal is referred to as establishing this. The applicant has been involved in Martyr’s Day celebrations connected to celebrating fallen LTTE members. Additionally, it is claimed that:
·the applicant is known as an active member of the Tamil Diaspora;
·he has helped in creating awareness of events, participated in protests and meetings in relation to the plight of LTTE members under the oppressive government;
·he has helped organise pro Tamil ideology events;
·he has demonstrated that he has positive sentiments towards the Tamil struggle for independence and two families were still protesting and fasting to locate their loved ones who were missing after the war.
Reference is made to the gazettal by Sri Lanka of the Tamil Coordinating Committee as a prescribed terrorist organisation. The applicant attended a protest on 20 March 2022 images of which have been shared extensively on social media and in the news. Protests include in relation to the ending of Temporary Protection Visas in Australia. The applicant’s participation at protests create an assumption that the applicant is against the Sri Lankan regime and current support for LTTE ideologies. Independent information including a United Kingdom guidance note is referred to as indicating risks in Sri Lanka for individuals who are known to engage in post conflict separatism. Extensive intelligence gathering capabilities are referred to of Sri Lankan authorities. This makes it plausible that authorities will identify the applicant in terms of his support for the LTTE and separatist sentiments.

Submissions are made in relation to the Rajapakse regime in Sri Lanka in terms limiting the abilities of Tamils and other minorities. Reference is made to fundamental human rights in Sri Lanka being in jeopardy under the new regime.
Submissions are made in relation to the extension of the Public Security Ordinance enhancing the power of the military. Reference is made to the use of the Prevention of Terrorism Act against the Tamil population. Particular risk factors in relation to the applicant are identified. Submissions are made with respect to the applicant being a threat to the unitary state of Sri Lanka. The fact that the applicant has previously been detained by authorities for six months, given his prolonged absence and his involvement with anti-Sri Lankan government propaganda in Australia, there is a real and not remote chance that the CID have placed the applicant on a list of persons to arrest, detain and interrogate over involvement with the LTTE and possession of anti-government ideologies.
Submissions are made in relation to the potential for the applicant to be charged on return to Sri Lanka for the offence of having left the country unlawfully.
It is submitted that there is a real chance that on return the applicant will be detained and interrogated at length, and based on available reports, it is highly probable he will be subject to torture.
Submissions are made at the applicant faces requisite harm throughout Sri Lanka. Submissions are made in relation to the applicant meeting complimentary protection criteria.
Also provided on 22 April 2022 were the following:
·Several photographs of what appear to be a protest. Some of the banners held by protesters read ‘UN / International Community – Protect the Tamils’, ‘#RELEASE ALL REFUGEES’.
·A letter from Tamil Coordination Committee (TCC) dated [in] April 2022 and signed by [Mr C] which states that the applicant is an active member of the Tamil Diaspora in Sydney. The applicant has helped with events, participated in protests and meetings ‘in relation to the plight of Eelam Tamils in Sri-Lanka under the oppressive Sri-Lankan government’. The letter stated that the applicant has demonstrated ‘positive sentiments towards the Tamil struggle for independence and to the families who are still protesting and fasting to locate their loved ones who are still missing after the war’. The letter also stated that upon their return to Sri Lanka, political advocates are captured and detained without any hearings for years or made disappeared. It stated that there have been 20,000 Tamils who have disappeared and more than 500 Tamils apprehended without cause.
·The Gazette of the Democratic Socialist Republic of Sri Lanka dated 25 February 2021. It published a list of ‘designated persons’ amending the list published in the Gazette Extraordinary No. 1992/25 of 9 November 2016. Highlighted is a reference to the designation of the World Tamil Coordinating Committee.
The applicant after the first hearing provided a further letter from the TCC in response to a request by the Tribunal. This letter again is from [Mr C] and dated [in] June 2022. The letter clarifies that although the TCC was only registered in 2020 its operations and activities organising pro Tamil events have occurred since 1999. It operated under the umbrella of the Tamil Civic Centre. Over the years the applicant has provided important contributions in organising and promoting pro-Tamil community activities and events. From discussions, the applicant has expressed positive sentiments towards the Tamil struggle for independence and he possesses a political opinion in support of a separate Tamil state. He is well known among the community for expressing sentiments in this regard.
Independent information
The 2021 DFAT report on Sri Lanka provides the following information (underlining added):
RECENT HISTORY
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2.2      A number of militant groups emerged to advance the cause of Tamil statehood. The most prominent of these, the Liberation Tigers of Tamil Eelam (LTTE, commonly known as the Tamil Tigers), formed in 1976 and launched an armed insurgency against the Sri Lankan state in 1983. Government forces re-took the north and east of the country from 2007-09, culminating in the military defeat of the LTTE in May 2009. The UN and human rights organisations documented serious violations in the final stages of the war when Mahinda Rajapaksa was President, during which up to 40,000 civilians may have been killed. In total, Sri Lanka’s 26-year civil war is estimated to have claimed 100,000 lives and displaced over 900,000 people. Civil society groups and NGOs have criticised the Rajapaksas for enabling and covering up alleged war crimes and atrocities against civilians.
2.3      In 2015, Maithripala Sirisena, who defected from the Mahinda Rajapaksa Government to a rival political grouping, was elected President. Sirisena promised a new era of “clean” government, free of corruption, and embarked upon a path of reconciliation with the Tamil minority that appeared to make some progress. His government faced a constitutional crisis when he briefly appointed Mahinda Rajapaksa as his Prime Minister in a move that was not approved by parliament.
2.4      On 21 April 2019, local Islamic extremist groups inspired by Daesh (also known as Islamic State), carried out coordinated terrorist attacks against Christian churches and hotels. The attacks, comprising suicide bombers, killed more than 250 people and injured another 490 — the deadliest bout of violence and the first known terrorist attacks in Sri Lanka since the end of the civil war in May 2009 (see 2019 Easter Sunday Terrorist Attacks).
2.5      In November 2019, Gotabaya Rajapaksa was sworn in as Sri Lanka’s President, choosing his elder brother Mahinda Rajapaksa, a former two-term President, as his Prime Minister. The UN Office of the High Commissioner for Human Rights (OHCHR), in its report of January 2021, said: ‘Sri Lanka seemed to be on a new path towards advancing reconciliation, accountability and human rights. The developments since November 2019, however, have reversed that direction and, instead, threaten a return to patterns of discrimination and widespread violations of human rights experienced in past decades’ (see Political System).[1]
[1] DFAT, Country Information Report – Sri Lanka, 23 December 2021, p. 8.
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POLITICAL SYSTEM
2.29    Sri Lanka is a democracy with a mixed parliamentary and presidential form of government. The president is directly elected for a five-year term (limited to two terms) and is the Head of State, Head of Government and Commander-in-Chief of the Armed Forces. President Rajapaksa is also the current Minister of Defence. International and domestic election observers deemed the last parliamentary election, held in 2020, to be mostly credible, although some incidents of voter intimidation were reported.
2.30    In August 2020, the Sri Lanka People's Freedom Alliance (SLPFA), a coalition under President Gotabaya Rajapaksa (which includes his own party, the Sri Lanka People's Front (SLPP)), won a two-thirds majority in the Sri Lankan Parliament led by Prime Minister Mahinda Rajapaksa.
2.31    On 20 October 2020, the Sri Lankan Parliament endorsed the 20th Amendment to the Sri Lankan Constitution. The amendment reversed some measures introduced by the previous government, largely dismantling pro-transparency and accountability reforms in the 19th Amendment, as well as enhanced executive control over the legislature and judiciary. In January 2021, the UN High Commissioner for Human Rights expressed her concern that ‘the amendment has fundamentally eroded the independence of key commissions and institutions, including the Human Rights Commission of Sri Lanka (HRCSL), the Election Commission, the National Police Commission and the judiciary in terms of procedure for the selection, appointment and dismissal of senior judges and other high-ranking officials.’ The amendment also allowed dual citizens to enter Parliament.
2.32    In July 2021, Basil Rajapaksa, a dual-Sri Lankan-US citizen, was sworn in as Sri Lanka’s Minister of Finance, becoming the fourth Rajapaksa brother and fifth member of the first family to enter the Cabinet. The move further consolidated the family’s control over the machinery of government. The family’s return to government has seen greater centralisation of power in the executive branch and the increased militarisation of civilian government (such as the filling of civilian positions with former military officers). Some observers have called these measures ‘democratic backsliding’; the weakening of institutions that provide democratic accountability (see Recent History).
2.33    Prime Minister Mahinda Rajapaksa’s earlier 10-year presidency (2005-2015) was also marked by allegations of democratic backsliding and accusations of corruption and human rights violations, including alleged war crimes against the Tamils, and harassment, arrest and disappearance of government critics. The current government of Gotabaya Rajapaksa has sought to retain popularity within the majority Sinhalese community by highlighting their role in the defeat of the LTTE and by promoting strong state security, particularly following the 2019 Easter Sunday terrorist attacks. Local sources, Tamil and non-Tamil, told DFAT that the human rights improvements achieved under the government of Maithripala Sirisena (2015-2019), including in relation to freedom of expression, are now being reversed. Such sources regard the increasing militarisation of the civilian government, the 20thAmendment’s centralisation of power in the hands of the executive, and the increasing use of the Prevention of Terrorism Act and other means to silence critics, as vindication of their fears. Presidential elections are next scheduled to be held in 2024. In July 2021, President Rajapaksa stated his intention to run for a second term in office.
Reconciliation
2.34    The report of the Office of the UN High Commissioner for Human Rights (OHCHR) Investigation on Sri Lanka (OISL), released in September 2015, found that government and LTTE forces likely committed grave violations, possibly amounting to war crimes and crimes against humanity, between 2002 and 2011. In response, the Sri Lankan Government of Maithripala Sirisena committed to implementing a range of truth, justice and reconciliation measures under a UN Human Rights Council (HRC) resolution (Resolution 30/1) adopted in October 2015. The then-Government of Sri Lanka co-sponsored these resolutions.
2.35    In 2015, the then- Government approved the formation of four transitional justice and reconciliation mechanisms, in line with Sri Lanka’s HRC commitments: (1) an Office on Missing Persons (OMP); (2) an Office for Reparations (OfR); (3) a Truth, Justice, Reconciliation and Non-Recurrence Commission; and (4) a Judicial Mechanism with a special counsel to investigate allegations of violations of human rights and international humanitarian law during the war.
2.36    In 2015, an Office for National Unity and Reconciliation (ONUR) was established and the Government appointed former President Chandrika Bandaranaike Kumaratunga as chair. She left the position in November 2019 and was not replaced. In-country sources do not regard ONUR as having fulfilled its mandate of promoting reconciliation in 2021.
2.37    The OMP was formally established in September 2017 with seven commissioners including two Tamils and one Muslim. The OMP was the first permanent and independent body to address the issue of missing persons in Sri Lanka. The OMP is tasked with determining the status of all missing persons in Sri Lanka and clarifying the circumstances under which they disappeared. Its mandate includes cases that occurred before, during and after the war, including periods of violent political disturbance in the 1970s and 1980s. While some optimism occasioned the OMP’s establishment and initial operations, local sources regarded it as compromised in 2021; the 20th Amendment permitted the Government to appoint commissioners implicated in historical abuses, such as former Inspector General of Police (IGP) Jayantha Wickramaratne. Ahimsa Wickrematunge, daughter of slain journalist Lasantha Wickrematunge said of Wickramaratne that, as IGP in 2009, Wickramaratne had ‘derailed’ investigations into her father’s murder. As at November 2019, the Government was paying Interim Relief (worth LKR6,000 per month) to 153 families of missing or disappeared persons up. Family members who possessed either a Certificate of Absence (CoA) or a Certificate of Death (CoD) which stated that the person has been missing or had been disappeared for over one year were entitled to this payment. However, in September 2021, sources advised that the payment of Interim Relief had ceased, along with the issuance of Certificates of Absence.
2.38    The lead investigator in a number of ‘emblematic cases’ involving high-profile disappearances and other serious human rights violations where some progress has been made, Inspector Nishantha Silva of the Police Criminal Investigation Department, fled Sri Lanka to Switzerland after the Presidential election in 2019, fearing reprisals. The Government has now issued two warrants for Silva’s arrest, including one for murder, and is reportedly seeking his extradition from Switzerland. Other former CID officers, such as former Director Shani Abeyesakara, have been targeted by the Government for their role in high-profile cases.
2.39    The OfR was established by legislation passed by parliament on 10 October 2018 with commissioners from a range of ethnic and professional backgrounds. The OfR has been given a mandate to provide reparations to persons affected by conflict, not only in the north and east, but also in the south, and in connection to the Marxist insurrections of the 1970s and 1980s. Local sources claimed in 2021 that the OfR’s work had come to ‘a standstill’. However, the Government of Sri Lanka stated in September 2021 that the Office continues to function, settling a total of around 5,000 claims (with more than 10,000 remaining) for a total of LKR323.6 million (AUD2.2 million). This amounts, as HRW notes, to approximately USD500 per missing person. In August 2021, Sri Lanka’s Cabinet approved the National Reparations Policies and Guidelines. The document, which is publicly available, was formulated within the legal framework set out by the Office of Reparations Act and covers both collective and individual reparations. However, at the time of publication, details on practical implementation of the policy were still evolving.
2.40    The Government withdrew its co-sponsorship of Resolution 30/1 in February 2020, announcing instead, a policy of pursuing reconciliation through domestic processes. In March 2021, the UN Human Rights Council, following a report by UN High Commissioner for Human Rights, Michelle Bachelet, adopted resolution 46/1, deciding ‘to strengthen the capacity of the Office of the High Commissioner to collect, consolidate, analyse and preserve information and evidence and to develop possible strategies for future accountability processes for gross violations of human rights or serious violations of international humanitarian law in Sri Lanka to advocate for victims and survivors, and to support relevant judicial and other proceedings, including in Member States, with competent jurisdiction.’ A statement delivered by the Foreign Minister (Peiris) during the Human Rights Council’s 48th Regular Session in September 2021 noted the Government’s rejection of the proposal for any external initiatives established by Resolution 46/1 while domestic processes were underway. Local and international sources suggest that the Sri Lankan Government is concerned about this OHCHR evidence gathering process, and are seeking to stifle and suppress critics with knowledge of historical abuses that would be of use to the OHCHR. Sources claim senior figures principally fear the exercise of universal jurisdiction by other states with regard to such abuses.
2.41    In her January 2021 report, Bachelet said: ‘Sri Lanka remains in a state of denial about the past, with truth-seeking efforts aborted and the highest State officials refusing to make any acknowledgement of past crimes’ (see also Media and Civil society organisations and government critics). In 2021, there has been little progress on so-called ‘emblematic cases’ of historical abuses related to the civil war. In one high-profile case, the recently retired Chief of the Defence Staff (head of the Sri Lankan military), Admiral Ravindra Wijegunaratne, was remanded in custody on 28 November 2018 for allegedly threatening a witness and attempting to remove the lead police investigator in a case involving the abduction and murder of 11 Tamil youths by Navy personnel in Colombo in 2008 and 2009. As of 2021, he is yet to face trial. The bodies of the 11 men, who came from wealthy families and were allegedly abducted for ransom, have never been found. The current Chief of the Defence Staff and Chief of Army, General Shavendra Silva, is banned from travelling to the United States due to accusations of civil war-era war crimes.
2.42    DFAT assesses that progress on accountability for war-era violations is unlikely in the near-term. DFAT further assesses that Sri Lankan journalists, investigators, activists and former police officers probing historical abuses face a high risk of official harassment and a moderate risk of violence.[2]
[2] DFAT, Country Information Report – Sri Lanka, 23 December 2021, pp. 12-15.
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SECURITY SITUATION
2.48    The security situation in Sri Lanka, particularly in the north and east, has improved significantly since the end of the civil war in May 2009. The Sri Lankan Government exercises effective control over the entire country, including Tamil-populated areas. Security was heightened across Sri Lanka following the 2019 Easter Sunday terrorist attacks (see also 2019 Easter Sunday Terrorist attacks and Aftermath of Anti-Muslim Violence).
2.49    The 2019 Easter Sunday suicide bombing terrorist attacks, carried out on 21 April 2019 by local Islamic extremists (National Thawheed Jammath (NTJ) and Jamaat-al Mullathu Ibrahim (JMI)) and inspired by Daesh (ISIL/Islamic State), targeted three luxury hotels in Colombo (Western Province) and three Christian churches in Colombo, Negombo (Western Province) and Batticaloa (Eastern Province). More than 250 people were killed in the bombings with another 490 injured. A Commission of Inquiry has investigated the bombings but, as at the time of publication, the Commission’s report had not been publicly released. The Catholic Church in Sri Lanka has repeatedly raised concerns about the ongoing lack of justice for victims and the Government’s handling of the investigations. The Commission’s work and broader efforts to seek accountability have become highly politicised, including due to allegations of links between intelligence personnel and the groups that carried out the attacks, and of negligence by high-ranking officials including former President Sirisena.
2.50    The Sri Lankan Government claims it has killed or apprehended all those directly involved in the 2019 Easter Sunday terrorist attacks. Nearly 2,300 individuals were arrested in connection with the attacks, up to 300 of whom reportedly remain in police custody at the time of publication. The Sri Lankan Government proscribed the NTJ, the JMI and a third local Islamic extremist group, Willaayath as Seylani (WAS), as terrorist entities. According to media reporting, in May 2021, the Sri Lankan Ministry of Defence said it had no information about any current terrorist threat in Sri Lanka. See also Muslims with regard to the treatment received by Muslims in Sri Lanka following the 2019 Easter Sunday terrorist attacks.
2.51    The incidence of homicide has fallen sharply in recent years and is now comparable with other South Asian countries. The United Nations Office on Drugs and Crime estimated a murder rate of 2,421 per 100,000 people in 2018, the last year for which data is available. A number of local sources told DFAT of substantial gang violence in Jaffna (Northern Province), including random sword attacks allegedly carried out by Jaffna-based motorcycle gang the Aava Gang. A number of chiefly Tamil sources have suggested the Aava gang was enabled by Sri Lankan military intelligence but DFAT cannot verify this.
2.52    Elections have historically been volatile periods in Sri Lanka; however, independent election monitors found no significant security problems with the running of the 2019 Presidential and 2020 parliamentary elections, even amid COVID-19 restrictions for the 2020 election.
2.53    States of Emergency have also been in place for much of Sri Lanka’s recent history, including throughout the war and for four months after the 2019 Easter Sunday terrorist attacks, and have been used as a tool to extend executive and military control. The most recent State of Emergency, declared on 30 August 2021 reportedly to control rapidly rising food prices, sparked concerns in some quarters. Media reports state that the recent declaration lapsed in early November 2021 with little fanfare.
Security situation in the north and east
2.54    The Government no longer restricts travel to the north and east. It removed security checkpoints on major roads in 2015, although some were re-established following the 2019 Easter Sunday terrorist attacks. DFAT understands some security checkpoints re-established in the north post 21 April 2019 have since been removed. Local sources report that roadblocks were significantly re-established in 2020-21, ostensibly to combat COVID-19 and drug trafficking. However, sources note these roadblocks are common in the north and east, and far less common around Colombo, which does not reflect relative COVID-19 risks in these locations.
2.55    The military maintains a significant presence in the north. Military involvement in civilian life has decreased overall since the end of the war, although military involvement in some civilian activities, particularly the economy, continues in the Northern Province (see Economic conditions in the north and east). The Sri Lankan military comprises approximately 350,000 active and reserve service members; 280,000 Army, 50,000 Navy and 30,000 Air Force. Approximately 160,000 – 200,000 joined between 2006 and 2009. Retirement is permissible after 22 years of service. Much of the work currently done by the military includes: construction of roads, hospitals and houses; the renovation of dams; hospitality (such as running resorts or other tourism activities); and growing food (dairy farming, rice and vegetable cultivation).[3]
[3] DFAT, Country Information Report – Sri Lanka, 23 December 2021, pp. 16-17.
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Tamils
3.4      According to the most recent census (2012), Tamils are the second largest ethnic group in Sri Lanka (15.3 per cent of the population). Tamil political parties are active, with the largest coalition of parties operating under the umbrella of the Tamil National Alliance (TNA). In the 2020 parliamentary elections, the TNA won 10 seats (of a total 225) during the landslide victory of President Rajapaksa’s Sri Lanka People's Freedom Alliance (SLPFA). There are two Tamil parties in the Government’s ruling SLPFA coalition: the Tamil Makkal Viduthalai Pulikal (TMVP) (formerly known as the Karuna group), and the Eelam People's Democratic Party (EPDP), which have a combined total of three seats in the Sri Lankan Parliament. There is one Tamil cabinet minister as of November 2021: Minister for Fisheries, Douglas Devananda of the EPDP. This represents a decline in political influence for Tamils from the previous Sirisena Government.
3.5      Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs, though other sources suggest this is because many Tamils speak neither Sinhala nor English. Even the Tamil-dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil-speaking police officers and military personnel in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities. In April 2021, Sri Lanka Police announced plans to recruit 2,000 Tamil speakers for the north and east, given that very few of the mostly Sinhalese officers (with around 700 police officers working in the Northern Province and 1,100 in the Eastern Province) speak fluent Tamil. All police basic training is reportedly conducted in Sinhala limiting accessibility to most Tamils.
3.6      DFAT assesses there is no official discrimination on the basis of ethnicity in public sector employment. Rather, Tamils’ under-representation is largely the result of language constraints and disrupted education because of the war.
3.7      DFAT is aware that some Sinhalese from the south have resettled in the north and east with government assistance in the post-war period. Local sources in the north expressed concern about the construction of Buddhist statues and temples in non-Buddhist populated areas. DFAT is unable to verify claims that Sinhalese settlers in the north and east have received preferential treatment to establish businesses.
Monitoring, harassment, arrest and detention
3.8      Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested or detained by security forces during the war. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner (see Liberation Tigers of Tamil Eelam).
3.9      Members of the Tamil community and NGOs report that authorities continue to monitor public gatherings and protests in the north and east, and practise targeted surveillance and questioning of individuals and groups. Security forces are most likely to monitor people associated with politically-sensitive issues, including those related to the war, such as missing persons, land release and memorialisation events (see Civil society organisations and government critics and Media).
3.10    Communities in the north and east report that monitoring is undertaken by military intelligence and the Police Criminal Investigation Department, though in many cases officers dress in plain clothes and do not identify themselves. According to local sources, those participating in public gatherings and protests are often photographed. In the east, local informants within the community (including neighbours and business owners) reportedly undertake monitoring on behalf of the authorities. Intelligence agencies also monitor links to foreign groups, including some in the Tamil diaspora (see Liberation Tigers of Tamil Eelam).
3.11    LTTE cemeteries in the north and east were destroyed by government forces during and after the war. Some have subsequently been restored. It is illegal to commemorate the birthday of LTTE leader Prabhakaran (26 November), or Maaveerar Naal (‘Great Heroes’ Day’ in Tamil, 27 November), although some Tamils are known to defy this ban. The public display of LTTE symbols, including the LTTE flag and images of Prabhakaran, is also banned.
3.12    Tamils have been arrested in 2021 under the Prevention of Terrorism Act (PTA) for commemoration of the war (see Prevention of Terrorism Act). In May 2021, on the eve of commemoration of the end of the civil war in Mullaithivu district, the location at which various estimates suggest up to 40,000 civilians died in the closing phase of the war, authorities placed the district under strict COVID-19 quarantine isolation. According to local sources, Tamils who tried to commemorate the day were harassed or arrested by police. For example, 10 Tamils including two women were detained from 19 May 2021 until at least late July for holding a socially-distanced candle-lit vigil on a beach in Batticaloa, Eastern Province. On 19 May 2021, the Government of Sri Lanka, including President Rajapkasa, celebrated the same occasion as War Heroes Day.
3.13    DFAT assesses that surveillance of Tamils in the north and east continues, with particular surveillance of those associated with politically-sensitive issues. DFAT also assesses that physical violence against those being monitored is not common, and that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment.[4]
[4] DFAT, Country Information Report – Sri Lanka, 23 December 2021, pp. 18-20.
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Liberation Tigers of Tamil Eelam (LTTE)
3.39    At its peak in 2004, the LTTE had an armed force of approximately 18,000 combatants. The LTTE was proscribed as a terrorist organisation by a number of countries, including Australia. It was supported by foreign funding, primarily from the Tamil diaspora, and both voluntary and forced recruitment of Tamils. Funding from the Tamil diaspora was sometimes attained through means of intimidation and coercion, including threats against local family members and kidnapping for ransom. Within Tamil Eelam, the LTTE imposed its authority in a brutal fashion, reportedly murdering Tamil rivals and critics.
3.40    Towards the end of the war, in 2009, government security forces arrested and detained a large number of LTTE members. Most were sent to government-run rehabilitation centres. A smaller number were prosecuted through Sri Lanka’s court system. Security forces also questioned or monitored many civilians for possible LTTE activity, and for civil resistance or anti-government sentiment. Although not officially mandated, in many areas the military took a visible and active role in civilian life. The previous Sirisena Government publicly committed to reducing military involvement in civilian activities, but observers have expressed concern that this has reversed and the military’s role is growing again.
3.41    While the LTTE was comprehensively defeated, Sri Lankan authorities remain concerned over its potential re-emergence, and to separatist tendencies in general. Sources report that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members, supporters and other separatists, including ‘stop’ and ‘watch’ electronic databases. DFAT understands these databases remain active. ‘Stop’ lists include names of those individuals who have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals whom the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities.
3.42    Former LTTE members face no legal barriers to participating in public life, including politics. In the August 2015 parliamentary elections, the TNA did not allow ex-LTTE members to run on their ticket, but ex combatants established the Crusaders for Democracy party and ran for election. While the party did not win any seats, its participation demonstrated the relative openness of the electoral process. The party did not contest the 2020 parliamentary elections.
3.43    The LTTE has not carried out any attacks since 2009; however, individuals linked to the LTTE have been involved in what are alleged to be thwarted attacks. DFAT assesses that the LTTE no longer exists as an organised force inside Sri Lanka, and any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans. Local sources told DFAT that the Tamil community had abandoned militancy and was committed to addressing its grievances through political means.
3.44    The International Truth and Justice Project (ITJP), an NGO which documents torture and sexual violence by the security forces in Sri Lanka, claims that, while ex-LTTE cadres exist, they are no longer affiliated in any way with an extant LTTE, and are subject to harassment and discrimination by the Government. The Sri Lankan Government may not accept that the LTTE is finished, arresting several Tamils in 2021 under the Prevention of Terrorism Act (PTA) for alleged LTTE-supportive behaviour (see Prevention of Terrorism Act). In July 2021, a Tamil man was deported from Qatar to Sri Lanka at the request of Counter-Terrorism Investigation Department (CTID) for allegedly promoting the LTTE. In its May 2021 decision on the refugee status of Tamil activists in the UK, the UK Upper Tribunal found that the present Government of Sri Lanka was possessed of a ‘determination to prevent any form of resurgent separatism’.
Rehabilitation
3.45    Since the end of the war, successive Sri Lankan Governments have managed a large-scale ‘rehabilitation’ process for former LTTE members. The aim of the 24 rehabilitation centres was to process LTTE members who surrendered in the final stages of the war and to assist them to adjust to a life after war, with a focus on vocational training. According to Sri Lankan Government statistics from March 2019, 12,191 former LTTE members (including 2,265 women) had completed rehabilitation. Some centres previously used to rehabilitate former LTTE members have since been redeployed for the purposes of rehabilitating drug addicts and possibly Muslim detainees under the PTA (see Rehabilitation of non-LTTE members).
3.46    Local sources have previously estimated that between 4,000 and 6,000 former LTTE members are undisclosed and non-rehabilitated, the majority of whom may now be living overseas. Military sources have previously estimated the number of undisclosed and non-rehabilitated former LTTE numbers within Sri Lanka as being low, including approximately 280 individuals in Jaffna (Northern Province).
High-profile former LTTE members
3.47    ‘High-profile’ former LTTE members are individuals who held senior positions in the LTTE’s military wing and civilian administration. The LTTE’s former leadership face the highest risk of monitoring, arrest, detention or prosecution, regardless of whether they performed a combat or civilian role during the war. Although most of the LTTE’s leadership died during the war, a number surrendered or were captured and sent to rehabilitation centres or prosecuted/detained. Some former leaders may have left Sri Lanka before, during or after the war (see Former LTTE members living outside Sri Lanka). Others considered ‘high-profile’ include individuals suspected of terrorist or serious criminal offences during the war, or of providing weapons or explosives to the LTTE. Other former leaders, such as Karuna Amman (previously a leader of the TMVP, now a member of the Sri Lankan Freedom Party (SLFP), part of the President’s ruling coalition), defected and are allied with the Government.
3.48    DFAT assesses that the number of high-profile former LTTE members living in Sri Lanka is small and that the vast majority would already have come to the attention of the authorities. DFAT also assesses that any remaining high-profile former LTTE members who came to the attention of the authorities would likely be arrested, detained and prosecuted through Sri Lanka’s criminal courts and, once they had completed their prison sentences, be subjected to some form of rehabilitation. The average judicial process in Sri Lanka, including appeal, is protracted (see Judiciary). High-profile former LTTE members would likely continue to be monitored by the Sri Lankan authorities following their release from prison and completion of any rehabilitation process.
Low-profile former LTTE members
3.49    ‘Low-profile’ former LTTE members include former combatants, those employed in administrative or other roles, and those who may have provided a high level of non-military support to the LTTE during the war. DFAT assesses that, although the great majority of low-profile former LTTE members have been released following their rehabilitation, any low-profile former LTTE members who came to the attention of the Sri Lankan authorities now, particularly if suspected of having a combat function during the war, would likely be detained and may be sent for rehabilitation. Following their release from rehabilitation, a low-profile former LTTE member might be monitored but would generally not be prosecuted.
Monitoring of former LTTE members
3.50    Some Tamils with actual or imputed LTTE links (including those who fought for the LTTE or were part of its civilian administration) continue to report police monitoring and harassment. Multiple sources in the north told DFAT that former LTTE members, including those considered low-profile, are monitored to guard against the LTTE’s re-emergence. Testimonies provided to ITJP show that such harassment can include: frequent visits by police, visits to family members, threats and seizure of mobile devices.
3.51    Local sources also claimed the authorities – usually undercover police officers or intelligence agents – sometimes used more subtle methods, for example inviting individuals to tea in public places and asking questions about their activities. Such questioning did not involve violence. Telephone calls were also common. Some sources claimed questioning was sometimes indirect, and involved questioning the neighbours of suspected former LTTE members. Sources told DFAT that monitoring of former LTTE members was less extensive in the Eastern Province, insofar as many there had defected during the latter years of the war and aligned with the Government as part of the Karuna Group/TMVP (see Security situation in the north and east).
3.52    DFAT assesses that, while they may be monitored, Tamils with former links to the LTTE, and who are not politically active, are generally able to lead their lives without concern for their security as a result of their past association with the LTTE.
Former LTTE members living outside Sri Lanka
3.53    At least one million Sri Lankan Tamils live outside Sri Lanka, mostly in Canada, Europe (with large communities in the UK and France), Australia and India. Members of the Sri Lankan Tamil diaspora may be citizens or legal residents of those countries, or dual nationals. Some members of the Tamil diaspora return to Sri Lanka to visit family members, for holidays and for business. Remittances from the Tamil diaspora provide an important source of income for family and community members in Sri Lanka.
3.54    Some members of the Tamil diaspora played a central role during the war, as a source of funding, weapons and other material support for the LTTE, and as political advocates for an independent Tamil state. Some Tamil diaspora groups continue to hold public demonstrations in their countries of residence for an independent Tamil state. High-profile leaders of pro-LTTE diaspora groups, particularly diaspora groups banned under Sri Lankan law, may come to the attention of Sri Lankan authorities because of their participation in such demonstrations. The Sri Lankan Government continues to assess that elements of the Tamil diaspora remain committed to a separate Tamil state. The UK Upper Tribunal in its May 2021 ruling on Tamils engaged in activities in the UK found that a range of political activities such as ‘attending meetings and demonstrations, holding flags or banners displaying the LTTE emblem, attendance at commemorative events, meaningful fundraising, any presence on social media, signing petitions’ may be perceived by the Government of Sri Lanka as threatening and it may trigger official harassment upon return.
3.55    In March 2021, the Sri Lankan Government proscribed a number of Tamil diaspora groups including the Australian Tamil Congress and the Tamil Youth Organisation (Australia), as well as a number of individuals based in Australia, the UK, Germany, Italy, Malaysia and several other countries. The Australian Tamil Congress and the Tamil Youth Organisation are not proscribed in Australia, while the LTTE remains a proscribed organisation in Australia.
3.56    Approximately 95,000 Sri Lankan Tamils live as refugees in Tamil Nadu, India. (see Returnees from Tamil Nadu).
3.57    DFAT assesses Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their security risk profile. DFAT assesses that following Tamils would be of particular interest to the authorities: those who hold leadership positions in Tamil diaspora groups, particularly groups deemed by the Sri Lankan Government to hold radical views; those who were formerly part of the LTTE, particularly in – but not necessarily limited to – high-profile roles; those who are suspected of raising funds for the LTTE during the war; and those who actively advocate for Tamil statehood. Those Tamils living abroad with links to the LTTE are unlikely to return to Sri Lanka voluntarily.
Family members of LTTE
3.58    The Sri Lankan Government acknowledges that former LTTE members and their families may continue to face discrimination both within their communities and from government officials. DFAT cannot verify claims that people have been arrested and detained because of their family connections with former LTTE members, but understands that close relatives of high-profile former LTTE members who are wanted by Sri Lankan authorities may be subject to monitoring. The ITJP, based on interviews with Tamils who have fled the country and are resident overseas, states that family members of former or suspected former LTTE cadres have been subject to harassment and detention.
Societal discrimination
3.59    Most former LTTE members released from rehabilitation have been accepted back into their communities in the north and east, despite some suspicion that they may be pressured to act as informants for Sri Lankan authorities. There is an acknowledgement within the Tamil community that many people were forced to participate in LTTE activities against their will. DFAT assesses that low-profile former LTTE members face a low to moderate risk of societal discrimination. Societal discrimination against former LTTE members is also related to caste, as the majority of former LTTE members are lower caste. Former LTTE members can readily access government services.
3.60    Local sources in the north characterised former LTTE members as the most vulnerable and neglected segment of the Tamil population. Former LTTE members face ongoing challenges reintegrating fully into society. Sources told DFAT that unemployment among this cohort, particularly the women, is high. Many, even those who received vocational education as part of the post-war rehabilitation process, lack the skills to find and hold meaningful employment, and some have reportedly resorted to criminal activities. Reluctance by employers to hire known former LTTE members, for fear of inviting monitoring by the authorities, is also reported as a factor. In-country sources said that the lack of economic options experienced by former LTTE members meant that some had become paid informers for the authorities. Anecdotal evidence indicates that mental illness linked to the war is prevalent among former LTTE members. Those with disabilities sustained during the war receive minimal state support, if any at all.
3.61    Local sources report that female former LTTE members face additional hardships, including the risk of sexual harassment and difficulties finding marriage partners owing to their LTTE past. Women who were forcibly recruited by the LTTE are more likely to be accepted back into their communities than those who joined voluntarily.
3.62    DFAT assesses that members of the LTTE suspected of serious human rights violations against other Tamils face a moderate risk of societal discrimination. This includes those believed to be responsible for forced recruitment, particularly of children, or those suspected of torture or other mistreatment of Tamil civilians.[5]
[5] DFAT, Country Information Report – Sri Lanka, 23 December 2021, pp. 24-28.
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The Prevention of Terrorism Act (PTA)
4.20    The PTA was enacted as a temporary measure in 1979 to counter separatist insurgencies. It was made permanent in 1982 and remains legally in force. The PTA is not part of regular criminal law and contains special provisions on detention and the admissibility of confessions. The PTA allows arrests for unspecified ‘unlawful activities’, permits detention for up to 18 months without charge and provides that confessions are legally admissible. Prior to the 2019 Easter Sunday terrorist attacks, the PTA was used mainly to target those suspected of involvement with the LTTE. It was used only sporadically between 2016 and April 2019 following the then-government’s commitment to repeal and replace the PTA under HRC Resolution 30/1 (2015). During the civil war, authorities detained more Tamils under the PTA than any other ethnic group. The PTA has been used for many years to detain people in prolonged and often arbitrary detention. According to the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, in his 2017 report, 70 people had been in detention without trial for over five years and 12 had been in detention without trial for over 10 years. According to the HRCSL, as of 31 January 2018, about 15 per cent of PTA suspects had been in detention for 10 to 15 years, and about 41 per cent had been in detention for five to 10 years. As at 2021, many of these detainees are still being held.
4.21    DFAT is not able to verify the precise number of individuals currently held under the PTA. One local source estimated that 300 Muslims and 60 Tamils are being held under this legislation. A large number of Muslims were detained under the PTA following the 2019 Easter Sunday terrorist attacks. In 2021, the Sri Lankan police were still arresting Muslims in connection to the bombing. For example, in April 2021, opposition MP Rishad Bathiudeen and his brother Riyadh were arrested by CID for allegedly assisting the terrorists responsible for the 2019 Easter Sunday terrorist attacks. The brothers have claimed the arrest was political. The Government has not explained the nature of their alleged connection to the bombing. The brothers have since been released on strict conditions of bail.
4.22    The Government has used the PTA for purposes with arguably limited connection to terrorism. In May 2020, police arrested Ahnaf Jazeem, a 26-year-old teacher and Tamil poet, based on allegations that his poetry collection promoted ‘religious extremism’. In December 2021, Jazeem was charged under the PTA and released on bail. Human rights observers have reported other cases with respect to Muslims, including: Hejaaz Hizbullah, a Muslim human rights lawyer in custody since 14 April 2020 and eventually charged with an offence under the International Covenant on Civil and Political Rights (ICCPR) Act; and, Ramzy Razeek, a retired government official, detained in April 2020 for posting on Facebook about religious extremism.
4.23    The PTA has also recently been used against Tamils. Media reported a Tamil man was arrested by Eravur police in April 2021 for allegedly sharing a photo of LTTE leader Prabhakaran, while Jaffna Mayor, V. Mannivannan, was arrested by TID in April 2021 under accusations of attempting to resurrect the LTTE, allegedly because the choice of uniforms for a municipal environmental enforcement team resembled those of the LTTE. DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA.
4.24    In 2015, President Sirisena committed to repeal and replace the PTA with improved counter-terrorism legislation. This proposal, which was criticised by some human rights defenders as being as bad or even worse than the PTA, lapsed with that Government. In June 2021, the European Parliament adopted a resolution urging the EU Commission to consider temporary withdrawal of the Generalized System of Preferences preferential trade agreement from Sri Lanka, if it did not reform the PTA. In its response the Sri Lankan Ministry of Foreign Affairs rejected the claim that detention under the PTA had resulted in arbitrary detention but nevertheless promised to ‘revisit’ provisions of the Act to propose ‘necessary amendments’.
4.25    In March 2021, the Government added ‘de-radicalisation regulations’ to the PTA which allow for arbitrary administrative detention of individuals for up to two years without trial. The Government also proscribed 300 Tamil and Muslim groups and individuals allegedly ‘linked to terrorism.’ On 5 August 2021, the Supreme Court, in response to Fundamental Rights Petitions filed by several activists, issued an Interim Order suspending the operation of Prevention of Terrorism (De-radicalization from holding violent extremist religious ideology) Regulations No. 01 of 2021. These petitioners argued that individuals arrested under these new regulations could be subject to potentially indefinite detention under the guise of rehabilitation, without judicial review. A court hearing of the matter remains stalled at the time of publication.
4.26    In September 2021, during the UN Human Rights Council Session, the Sri Lankan Government announced a Cabinet sub-committee had been convened in June to ‘review’ the PTA within three months. Its report was not available at the time of publication, however, according to media reports, the committee presented its report to the President on 15 November 2021.[6]
[6] DFAT, Country Information Report – Sri Lanka, 23 December 2021, pp. 41-42.
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TREATMENT OF RETURNEES
Exit and Entry Procedures
5.17    Unsuccessful asylum seekers, both those subject to removal or departing voluntarily, are returned to Sri Lanka either using commercial or charter flights. In some cases, they may be accompanied by security escorts. On arrival in Colombo, returnees will be presented to Sri Lankan Immigration where they will be interviewed by the Chief Immigration Officer. Depending on the circumstances of their departure from Sri Lanka and their personal history, they may be interviewed by other agencies including CID, Sri Lankan State Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI). These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Those who have departed illegally will be referred to CID at the airport and charged accordingly. Once charged they are taken to the courts at Negombo where they are bailed and released.
5.18    DFAT is not aware of returnees in 2021 being detained for matters other than illegal departure (such as, for former membership of the LTTE). However, due to COVID-19, returnees have been returned to Sri Lanka in smaller numbers overall than in previous years. According to the IOM, in 2021 up to September, there had been 107 returnees, 19 of these from Australia. Local sources also report that Tamils overseas are much less likely to return voluntarily to Sri Lanka under the current Government.
5.19    The IOM meets Australian-assisted voluntary returnees (i.e. not deportees) after immigration clearance at the airport and provides some cash and onward transportation assistance, along with legal assistance provided by the Sri Lankan Legal Aid Commission for those charged with illegal departure. Prior to departure from Australia, Australian Border Force provides removed returnees with cash to assist their return.
5.20    For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.
Offences under the Immigrants and Emigrants Act
5.21    The Immigrants and Emigrants Act (1948) (the I&E Act) governs exit from and entry to Sri Lanka. Returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the I&E Act. Sections 34 and 35 (a) of the I&E Act make it an offence, respectively, to depart Sri Lanka other than via an approved port of departure, such as a seaport or airport, and/or without a valid passport. Returnees who departed Sri Lanka legally are not required to face a court, as no offence under the I&E Act applies. Sri Lanka has a mature people smuggling industry. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine, though DFAT is unaware of a prison sentence being given for illegal departure by itself. Facilitators or organisers of people smuggling ventures, including captains and their crew, are charged with more serious offences and typically refused bail.
5.22    Those charged are required to appear in court in the location where the matter was first heard, reportedly Negombo Courts, near the airport, which involves legal and transport costs. While the frequency of court appearances depends on the magistrate, DFAT understands that most individuals charged under the I&E Act appear in court every 3-6 months, regardless of their plea, for bail hearings. In addition to their own court hearings, those charged may be summonsed as witnesses in cases against the facilitators or organisers of people smuggling ventures. The cases of those charged with illegal departure may take years to resolve, requiring on-going court appearances (and illegal departees have no reasonable prospect of a defence). It is unclear to DFAT why such cases take so long. One source suggested that cases are taken forward in court only when all members of a people smuggling venture have been located; while another local source suggested it was simply due to the workings of the Sri Lankan justice system. For many returnees, this means they are subject to the slow processes of the Sri Lankan legal system; some returnees told DFAT that it was difficult and stressful having to return periodically to Colombo for a further hearing in a case where they were uncertain of the outcome.
5.23    While those convicted of the offence of illegal departure may theoretically face a custodial sentence, in practice, local sources suggest, a fine is always imposed and typically this fine is LKR 50,000 - 200,000 (AUD350-1400). Sources suggest those who are unable to pay the fine are permitted to pay in instalments but, if still unable, may be imprisoned for 14 days.
5.24    The severity of the fine for those charged under the I&E Act does not necessarily increase for those who have departed Sri Lanka illegally on more than one occasion. DFAT notes that, while the fines issued for passengers of people smuggling ventures are often low, the cumulative costs associated with regular court appearances over protracted lengths of time can be high. Anecdotal evidence suggests there is an acceptance within the Tamil community that illegal maritime ventures to Australia in search of asylum would be futile at this point in time.
5.25    The minimum age of criminal responsibility in Sri Lanka is 12 years. Under Sri Lankan law, anybody over the age of 12 at the time of their alleged offence is treated as an adult. Children over the age of 12 can therefore be charged with breaking the I&E Act, so long as they were 12 or older at the time of the alleged offence. No charges are imposed against children under 12 years of age or those persons who were younger than 12 at the time of the alleged offence.
5.26    DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure.
Conditions for Returnees
5.27    Between 2010-11 and 2018-19, 3,716 Sri Lankan nationals returned from the Australian community or were removed from Australian onshore immigration detention centres to their country of origin or a third country. Between 2002 and September 2021, the IOM has facilitated the return of 876 Sri Lankans from Australia. Many others returned from the US, Canada, the UK and other European countries. Most returnees are Tamil. Although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin and they have existing family links, or because of the relatively lower cost of living compared to the south.
5.28    Refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. Most returnees have incurred significant expenses or debt to undertake their outward journey. Some voluntary returnees receive reintegration assistance in the form of transport and livelihood support upon return to Sri Lanka from the Government, UN agencies and NGOs, but this requires a returnee to meet strict eligibility guidelines and is minimal. Failed asylum seekers receive limited reintegration assistance. Many returnees have difficulty finding suitable employment and reliable housing on return. Those who have skills that are in high demand in the labour market are best placed to find well-paid employment. The IOM provides eligible returnees with livelihood assistance and makes regular visits to monitor the welfare of returnees.
5.29    Multiple local sources said that some returnees, especially those in the north and east with suspected LTTE links, have been the subject of monitoring by the authorities, involving visits to returnees’ homes and telephone calls by the CID. DFAT understands that most returnees, including failed asylum seekers, are not actively monitored on an ongoing or long-term basis. DFAT is unable to verify whether monitoring, where it occurs, is specific to former LTTE cadres. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had no protection concerns and had not experienced harassment by the authorities, nor received monitoring visits, but DFAT cannot determine if this is the case for all such returnees.
5.30    Bureaucratic inefficiencies present a significant challenge to reintegration for returnees. Refugee returnees, particularly those who returned without UNHCR or IOM facilitation, can experience delays in obtaining necessary identification documents and proof of citizenship. Lack of documentation inhibits access to social welfare schemes and the ability to open bank accounts, find employment or enrol in educational institutions. Limited job availability in the north and east further contributes to difficulties in securing employment and housing. DFAT assesses that reintegration issues are not due to failure to obtain asylum, but rather due to the employment and accommodation difficulties returnees may face. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they were able to reintegrate into their communities and find employment. DFAT understands that returnees may face financial difficulties reintegrating into their communities, including due to sale of their belongings to fund irregular ventures overseas, but do not experience societal discrimination for seeking asylum elsewhere.
5.31    Some refugees and failed asylum seekers reported being pressured upon return to their communities, chiefly for being beneficiaries of financial reintegration assistance. Others experienced resentment upon return because they spent family funds on what proved to be a futile attempt at irregular migration. Overall, DFAT understands that societal discrimination is not a major concern for returnees, including failed asylum seekers. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had not experienced significant societal discrimination following their return.
5.32    DFAT assesses that returnees face a low risk of societal discrimination upon return to their communities. DFAT further assesses that, where it occurs, surveillance of returnees can contribute to a sense of mistrust of returnees within communities.[7]
[7] DFAT, Country Information Report – Sri Lanka, 23 December 2021, pp. 47-49.

Slightly more recent relevant information is contained in a report prepared by the Country of Origin Information Services Section of the Department of Home Affairs dated 10 March 2022 – Common Claims – Sri Lanka extracts of which follow (underlining added). A copy of this information was provided to the applicant in advance of the hearings.
Tamils
Mistreatment, monitoring and harassment of Tamils in the north and east has increased since the November 2019 presidential election. Reports of monitoring, surveillance, intimidation and harassment of Tamils in day-to-day life by security forces in the north and east of the country have increased since the election of Gotabaya Rajapaksa as president in November 2019,[8] and include a number of reported assaults and arrests and the alleged torture of Tamil civilians.[9] In at least one reported case in 2021, this has resulted in the death of a Tamil civilian in police custody.[10] In January 2022, a Tamil fisherman and activist who had campaigned against military encroachment in the north, was found dead; local politicians and community members in Jaffna alleged he was murdered by the Sri Lankan Navy and called for an inquiry.[11] Communities in both the north and east have reported that monitoring is undertaken by military intelligence and the police Criminal Investigation Department (CID), though in many cases officers dress in plain clothes and do not identify themselves.[12] In the east, community informants – including neighbours and business owners – also reportedly undertake monitoring on behalf of the authorities.[13] A January 2020 UK Home Office fact-finding mission found that while employment opportunities in the north of Sri Lanka and access to housing and land remain limited, opportunities had nevertheless increased prior to the onset of the COVID-19 pandemic.[14] In December 2021, DFAT assessed that ordinary Tamils living in the north and east are at low risk of official harassment and that physical violence against those being monitored is not common.[15]
Tamils with certain profiles – such as political activists and journalists – are more likely to attract the attention of authorities. Civil society groups report ongoing harassment and intimidation of family members of individuals who disappeared during the war.[16] Individuals and groups seeking to commemorate the end of the war and fallen LTTE combatants have experienced security forces surveillance, have been stopped from marking these occasions, and in some instances have been arrested – including under the Prevention of Terrorism Act (PTA)[17] – while authorities have proscribed hundreds of Tamil individuals and Tamil organisations, including several diaspora organisations.[18] Despite attention turning to rights violations against the Muslim community in the wake of the 2019 Easter Sunday bombings, a July 2021 report stated that the majority of reported violations continued to be against Tamil Sri Lankans.[19] Tamils maintain they suffer discrimination in areas such as access to university education, government employment, housing and health services;[20] however, a number of sources state that they are not targeted solely on account of their ethnicity.[21] In December 2021, DFAT assessed that while Tamils are under-represented in public sector employment, even in the north and east, this is largely due to language constraints and disrupted education as a result of the war, rather than official discrimination.[22]
A significant military presence remains in the north and east of the country. While security checkpoints on major roads in the north and east were removed in 2015,[23] some were re-established in the aftermath of the 2019 Easter Sunday bombings and continue to monitor and restrict population movements.[24] Some of this has been associated with the military-led response to the COVID-19 pandemic amid accusations that this has been more strictly policed in minority dominated areas.[25] Government figures show that, by October 2021, around 92 per cent of private land occupied by the military during or following the war had been returned to its owners[26] but displacement of Tamil civilians remains a concern.[27] Although most civilians displaced by the war have resettled, those still displaced mostly live in Jaffna, Kilinochchi, Mannar, and Batticaloa Districts in the north and east, and are unable to return home for reasons that include the presence of land mines and restrictions designating their homes as part of military high security zones.[28] There have also been longstanding reports of the destruction of property before it is handed back and the harassment of individuals who have protested against continuing military occupation.[29] Objections have also been raised that military involvement in sectors of Sri Lanka’s economy challenges the ability of civilians to make a living.[30]
Civil society groups are concerned that the government is seeking to suppress Tamil identity and culture, especially in the north and east. In February 2020 the Sri Lankan government broke with recent practice and stopped the singing of the national anthem in Tamil at Independence Day celebrations,[31] while the Rajapaksa government has permitted the construction of Buddhist shrines in the predominantly minority Northern and Eastern provinces.[32] In June 2020 a task force was appointed to ‘manage archaeological heritage’ in the Eastern Province whose make-up was entirely Sinhalese and included a number of serving and former military officers among its membership.[33] Minority communities fear that efforts to identify sites of Buddhist archaeological significance are part of a push to change the demographics of the region.[34] Land disputes between the government and minority communities are increasing; between January and November 2021, OHCHR recorded 45 reports of such disputes.[35] In September 2020, 358 acres of land claimed by Tamil farmers in Trincomalee District was taken over by the government after the area was identified as a Buddhist archaeological site.[36] In January 2021 the Mullivaikal Memorial at the University of Jaffna commemorating the deaths of Tamils who died in the closing stages of the war was destroyed, with Sri Lanka security forces preventing students from impeding the demolition.[37] The University later said the monument would be rebuilt.[38] In May 2021, a similar memorial plaque was vandalised in the northern Mullaitivu district, but the army denied involvement in the destruction.[39]
In March 2021, the United Nations Human Rights Council passed a resolution condemning Sri Lanka for its failure to provide justice and accountability to victims of crimes committed during, and in the aftermath, of Sri Lanka’s civil war. The resolution establishes an accountability process to collect, analyse, and preserve evidence of international crimes committed in Sri Lanka for use in future prosecutions.[40] It follows President Rajapaksa’s decision in 2019 to withdraw from commitments to promote reconciliation and accountability made to the United Nations by the previous Sirisena government.[41] These commitments included the establishment of four ‘transitional justice mechanisms’: an Office on Missing Persons, an Office for Reparations, a truth and reconciliation commission and a tribunal to investigate and try civil war era crimes.[42] While the Sirisena government made progress on the first two, President Rajapaksa has also been accused of undermining this; for instance, through the appointment of close allies to oversee each organisation.[43] The government’s commitment to a domestic mechanism for reconciliation and accountability has been questioned.[44] Moves to amend the constitution to devolve more power to the Tamil and Muslim dominated north and east have also been shelved.[45] President Rajapaksa has also followed through with an election commitment to protect from prosecution or release military officers accused of civil war era crimes – including, in March 2020, a soldier sentenced to death for the murder of eight Tamil civilians.[46] In August 2021 Sri Lanka’s Attorney General said he would not pursue charges against former Navy Commander Wasantha Karannagoda relating to his alleged involvement in the abduction and murder of 11 Tamil youths in 2008 and 2009.[47] [48]
…
Political opinion
Tamil political party supporters
[8] 'Jailing Activists and Pardoning Murderers: Monitoring Ten Issues of Concern in Sri Lanka in 2021', Sri Lanka Campaign for Peace and Justice, February 2022, p.19, 20220218122156; 'Report of a Home Office fact-finding mission to Sri Lanka', UK Home Office, 20 January 2020, pp.11,49, 20200123162928; 'Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka', OHCHR, 18 February 2020, p.7, 20200221140652
[9] 'Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights', United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, pp.7-8, 20220303152645; 'Sri Lanka: End the use of and repeal the draconian PTA', Amnesty International, 17 February 2022, p.5, 20220218110132; 'Sri Lanka military’s latest assault weapon: Barbed wire wrapped palm frond', Journalists for Democracy in Sri Lanka, 25 January 2022, 20220203171722; 'Sri Lanka: Torture and Sexual Violence by Security Forces 2020-2021', Yasmin Sooka and Frances Harrison, International Truth and Justice Project, September 2021, pp.24-27, 20210909092512; 'Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association', United Nations Human Rights Council, 05 May 2020, p.13, 20200622112923; 'Repression of Dissent in Sri Lanka: 1 st - 31st May 2020', INFORM Human Rights Documentation Centre, 29 June 2020, p.10, 20200702160949; 'Report of a Home Office fact-finding mission to Sri Lanka', UK Home Office, 20 January 2020, pp.11,49, 20200123162928; 'Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka', OHCHR, 18 February 2020, p.7, 20200221140652; ' 'Country Reports on Human Rights Practices for 2020 - Sri Lanka', US Department of State, 30 March 2021, p.22, 20210401122412; 'Tamil youth hospitalised following Sri Lankan army assault in Mannar', Tamil Guardian, 25 August 2020, 20200828165229; 'Sri Lankan police arrest ten Tamils in Jaffna', Tamil Guardian, 11 August 2020, 20200812105606; 'Falsely arrested and tortured disabled Tamil man submits complaint at Human Rights Commission', Tamil Guardian, 03 June 2020, 20200604080654
[10] 'Jailing Activists and Pardoning Murderers: Monitoring Ten Issues of Concern in Sri Lanka in 2021', Sri Lanka Campaign for Peace and Justice, February 2022, p.31, 20220218122156; 'Sri Lanka: Torture and Sexual Violence by Security Forces 2020-2021', Yasmin Sooka and Frances Harrison, International Truth and Justice Project, September 2021, p.33, 20210909092512; 'Tamil youth was 'tied to a tree' and attacked before being 'beaten to death'', Tamil Guardian, 05 June 2021, 20210607115206; 'Tamil youth beaten to death by Sri Lankan Intelligence officials', Tamil Guardian, 03 June 2021, 20210604102211
[11] 'Sri Lanka: Family seeks impartial investigation into killing of Tamil fisherman', Journalists for Democracy in Sri Lanka, 14 January 2022, 20220203172035; 'Anger in Jaffna after leading Tamil protestor killed by Sri Lankan navy', Tamil Guardian, 12 January 2022, 20220124113539
[12] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.19, 20211223094818
[13] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p. 19, 20211223094818
[14] 'Report of a Home Office fact-finding mission to Sri Lanka', UK Home Office, 20 January 2020, p.12, 20200123162928
[15] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p. 20, 20211223094818
[16] 'Human Rights in Sri Lanka in 2021', Sri Lanka Campaign for Peace and Justice, 21 December 2021, 20211222090819; 'Heeding Victims’ Voices: The Struggle of Tamil Families of the Disappeared in Sri Lanka', Dharsha Jegatheeswaran, Just Security, 03 March 2021, 20211126104053
[17] 'Jailing Activists and Pardoning Murderers: Monitoring Ten Issues of Concern in Sri Lanka in 2021', Sri Lanka Campaign for Peace and Justice, February 2022, p.27, 20220218122156; 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.39, 20211223094818; 'Sri Lanka: Torture and Sexual Violence by Security Forces 2020-2021', Yasmin Sooka and Frances Harrison, International Truth and Justice Project, September 2021, p.3223, 20210909092512; 'Sri Lanka army soldiers attack Tamil journalist covering commemoration for civil war dead', Committee to Protect Journalists (CPJ), New York, 02 December 2021, 20211203112236; 'Sri Lankan security forces block Sencholai massacre commemoration in Mullaitivu', Tamil Guardian, 14 August 2021, 20210817153024; 'Sri Lankan troops break up Tamil remembrance of civil war dead', Aljazeera, 29 November 2021, 20211130153802; 'Sri Lankan police threatens to quarantine Tamil families of the disappeared in Batticaloa', Tamil Guardian, 10 December 2020, 20201211100748; 'Jaffna Uni student arrested and further crackdown on Karthikai festival', Tamil Guardian, 29 November 2020, 20201130112301; 'Sri Lankan police interrogate Tamils over Maaveerar Naal press conference', Tamil Guardian, 06 December 2020, 20201208164636; Tamil; 'Abandoned Promises? Preserving Human Rights and Pursuing Accountability in Gota's Sri Lanka', Sri Lanka Campaign for Peace and Justice, February 2020, 20200330123213; 'Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association', United Nations Human Rights Council, 05 May 2020, p.13, 20200622112923; 'Repression of Dissent in Sri Lanka: 1 st - 31st May 2020', INFORM Human Rights Documentation Centre, 29 June 2020, pp.3, 13, 20200702160949; 'Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka', OHCHR, 18 February 2020, p.7, 20200221140652; 'Report of a Home Office fact-finding mission to Sri Lanka', UK Home Office, 20 January 2020, p.12, 20200123162928
[18] 'UN High Commissioner raises concerns of harassment of Tamils and Muslims in Sri Lanka', Tamil Guardian, 21 June 2021, 20210622103318; 'Tamil organisations speak out against Sri Lanka's ban', Tamil Guardian, 04 April 2021, 20210406172318; 'Human rights priority countries: ministerial statement for January to June 2021', United Kingdom Foreign, Commonwealth ＆ Development Office, 23 November 2021, 20211125085659
[19] ‘Repression of Dissent in Sri Lanka: 1st January – 31st March 2021’, INFORM Human Rights Documentation Centre, July 2021, p. 15, 20210826101133; Also see: 'Repression of Dissent in Sri Lanka: 1 st - 31st May 2020', INFORM Human Rights Documentation Centre, 29 June 2020, p.21, 20200702160949
[20] 'Country Reports on Human Rights Practices for 2020 - Sri Lanka', US Department of State, 30 March 2021, p.28, 20210401122412; 'Freedom in the World 2021 - Sri Lanka', Freedom House, 03 March 2021, 20210304102827
[21] E.g. 'Repression of Dissent in Sri Lanka: 1 st - 31st May 2020', INFORM Human Rights Documentation Centre, 29 June 2020, pp.3, 10, 22, 20200702160949; 'Report of a Home Office fact-finding mission to Sri Lanka', UK Home Office, 20 January 2020, p.12, 20200123162928; 'Country Policy and Information Note Sri Lanka: Tamil Separatism ', UK Home Office, May 2020, p.9, 20200527172009
[22] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p. 19, 20211223094818
[23] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.17, 20211223094818
[24] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.17, 20211223094818; 'Freedom in the World 2021 - Sri Lanka', Freedom House, 03 March 2021, 20210304102827; ‘Fear returns to Sri Lanka after bombings’, Human Rights Watch, 10 May 2019, 20190513142002; 'Sri Lankan military harass and block Tamil journalists travelling to Mullaitivu despite having permits', Tamil Guardian, 22 May 2021, 20210524151145; 'Army fires at tractor illegally transporting sand for failing to stop at checkpoint', Colombo Page, 22 April 2021, 20210423124946; 'Human rights priority countries: ministerial statement for January to June 2021', United Kingdom Foreign, Commonwealth ＆ Development Office, 23 November 2021, 20211125085659
[25] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.17, 20211223094818; 'Sri Lanka: Experts dismayed by regressive steps, call for renewed UN scrutiny and efforts to ensure accountability', OHCHR, 05 February 2021, 20210208205940; 'No more lockdowns, but checkpoints persist in Mullaitivu', Tamil Guardian, 17 November 2021, 20211119091121 ; 'Old Ghosts in New Garb: Sri Lanka's Return to Fear ', Amnesty International, 17 February 2021, e.g. p.52, 20210218125037
[26] 'Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights', United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.5, 20220303152645
[27] 'Promotion reconciliation, accountability and human rights in Sri Lanka: Report of the Office of the High Commissioner for Human Rights ', OHCHR, 27 January 2021, p.12, 20210203162131; 'Freedom in the World 2021 - Sri Lanka', Freedom House, 03 March 2021, 20210304102827; 'Country Reports on Human Rights Practices for 2020 - Sri Lanka', US Department of State, 30 March 2021, p.20, 20210401122412; 'Promoting reconciliation, accountability and human rights in Sri Lanka', United Nations Human Rights Council, 08 February 2019, p.8, 20190311120409
[28] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.46, 20211223094818; 'Country Reports on Human Rights Practices for 2020 - Sri Lanka', US Department of State, 30 March 2021, p.20, 20210401122412
[29] 'Promoting reconciliation, accountability and human rights in Sri Lanka', United Nations Human Rights Council, 08 February 2019, p.8, 20190311120409
[30] 'Sri Lanka’s militarisation continues with army involvement in milk production', Tamil Guardian, 13 December 2020, 20201215150506; DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.11, 20211223094818
[31] 'Sri Lanka scraps Tamil national anthem at Independence Day', Associated Press (AP), 04 February 2020, 20200205170238
[32] 'Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights', United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.5, 20220303152645;'Report of the Special Rapporteur on freedom of religion or belief A/HRC/40/58/Add.1', United Nations Human Rights Council, 28 February 2020, p.8, 20200306152353
[33] 'Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights', United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.5, 20220303152645; 'Sri Lanka’s slide into authoritarianism', Sri Lanka Campaign for Peace and Justice, 10 June 2020, 20200612151317; 'Sri Lankan Presidential Task Forces are “grounded in Sinhala-Buddhist nationalist ethos” and signal deepening militarisation – PEARL', Tamil Guardian, 4 June 2020, 20200605073146
[34] 'Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights', United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.5, 20220303152645
[35] 'Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights', United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.5, 20220303152645
[36] 'Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights', United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.5, 20220303152645
[37] 'Erasing Tamil Legacy in Sri Lanka', Jurist, 02 February 2021, 20210609140642; 'Sri Lanka erasing memories of massacres through monument demolition - C.V. Wigneswaran', Tamil Guardian, 09 January 2021, 20210111134912
[38] 'Sri Lanka: Tamil war monument to be rebuilt after hunger strike', British Broadcasting Corporation (BBC), 11 January 2021, 20210112115515
[39] 'Tamils’ war memorial in Sri Lanka’s Mullaitivu found vandalised', Hindu, The, 13 May 2021, 20210521122112
[40] 'Sri Lanka: Landmark UN Resolution Promotes Justice', Human Rights Watch (HRW), 25 March 2021, 20210329104943
[41] 'Freedom in the World 2021 - Sri Lanka', Freedom House, 03 March 2021, 20210304102827
[42] 'Sri Lanka: Resolution 30/1 Implementation Monitor Statistical and Analytical Review No. 4', Verite Research, 01 March 2019, 20190318141458
[43] 'New Appointments in Sri Lanka Torpedo what left of the Transitional Justice Mechanisms – Yasmin Sooka', Sri Lanka Brief, 01 June 2021, 20210602114655
[44] 'Human Rights and Democracy: 2020 Foreign, Commonwealth & Development Office report', United Kingdom Foreign, Commonwealth ＆ Development Office, 08 July 2021, 20210715104548; 'Sri Lanka faces renewed pressure over war crime accountability', Nikkei Asian Review, 10 February 2021, 20210211145015
[45] 'A Dangerous Sea Change in Sri Lanka', International Crisis Group (ICG), 29 January 2020, 20200615164541; 'Sri Lanka: Resolution 30/1 Implementation Monitor Statistical and Analytical Review No. 4', Verite Research, 01 March 2019, 20190318141458; 'Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka', OHCHR, 18 February 2020, 20200221140652
[46] 'Sri Lanka frees soldier who killed 8 Tamils', Hindu, The, 27 March 2020, 20200330121709
[47] 'Will not proceed with charges against Karannagoda, AG informs court', Colombo Page, 04 August 2021, 20210805114734; 'Sri Lanka: Authorities falter on accountability in ‘Navy 11’ case', Amnesty International, 04 August 2021, 20210805112632
[48] Country of Origin Information Services Section of the Department of Home Affairs dated 10 March 2022 – Common Claims – Sri Lanka, pp.1-5
Tamil parties are generally able to operate freely and contest elections, although there have been increasing reports of the monitoring and harassment of hard-line parties. August 2020 parliamentary elections saw a fragmenting of the Tamil vote, with an increase in votes for both government aligned parties[49] and a corresponding growth in support for hard-line Tamil parties seeking greater autonomy for the country’s north-east. [50] The Tamil National Alliance (TNA) remains the largest single Tamil party, but saw its share of seats drop from 16 in the last parliament to 10.[51] While widely considered to be a moderate party, in December 2020, Public Security Minister Sarath Weerasekara said that a failure to ban the TNA following the end of Sri Lanka’s civil war had been a mistake, and accused the party of encouraging the resurgence of the LTTE.[52] On 6 August 2020, Sri Lankan police broke up a gathering outside a Jaffna election office where TNA members were engaged in an internal party dispute over preferential votes.[53] However, in general there have been few reports of political violence against party members in recent years.[54] There is some limited freedom to express Tamil nationalist ideas;[55] however, more hard-line Tamil parties, including Tamil National People’s Front (TNPF) members involved in planned Remembrance Day and Martyrs Day activities in 2020, have reported recent harassment on the part of Sri Lankan authorities.[56] More generally, civil society organisations state that systemic discrimination negatively affects Tamils’ political participation.[57] [58]
[49] 'Sri Lanka’s 2020 Parliamentary Election Results – Analysis', Eurasia Review, 18 August 2020, 20200818104748; 'Rajapaksa Rule', Foreign Policy, 14 August 2020, 20200817165533; 'Incident report - bomb blast. (LTTE, EPDP, Devananda). Cable CL 38062.', CX11714; 'The Tamil Makkal Viduthalai Pulikal (TMVP) and Karuna factions; their relationship with each other; reports concerning their treatment of Sinhalese and Tamil citizens; whether they are still active as paramilitary groups', Canada: Immigration and Refugee Board of Canada (IRB), 17 February 2012, CX288326
[50] 'Sri Lanka’s 2020 Parliamentary Election Results – Analysis', Eurasia Review, 18 August 2020, 20200818104748
[51] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.18, 20211223094818; 'Non-career lawmakers secure political authority', Daily Mirror (Sri Lanka), 13 August 2020, 20200813135432
[52] 'Failure to proscribe TNA after the war was a mistake: Sarath Weerasekara', Daily Mirror (Sri Lanka), 04 December 2020, 20201204142424
[53] 'Freedom in the World 2021 - Sri Lanka', Freedom House, 03 March 2021, 20210304102827; 'Sri Lankan police attack Tamils in Jaffna as frustration mounts over recount', Tamil Guardian, 06 August 2020, 20200807130249; 'Internal strife within ITAK takes disturbing turn', Daily Mirror (Sri Lanka), 29 August 2020, 20200902130420
[54] 'Sri Lankan police attack Tamils in Jaffna as frustration mounts over recount', Tamil Guardian, 06 August 2020, 20200807130249; 'Internal strife within ITAK takes disturbing turn', Daily Mirror (Sri Lanka), 29 August 2020, 20200902130420
[55] 'KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT', Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, p.77, 20210601113225
[56] 'Tamil political party repeatedly harassed by Sri Lankan police', Tamil Guardian, 19 February 2020, 20200221135103; 'Sri Lanka cites COVID-19 to order TNPF leaders into isolation ahead of Mullivaikkal Remembrance Day', Tamil Guardian, 17 May 2020, 20200518074536; 'Sri Lankan police enter TNPF offices in Jaffna to stop Maaveerar Naal commemorations', Tamil Guardian, 27 November 2020, 20201130114324
[57] 'Freedom in the World 2021 - Sri Lanka', Freedom House, 03 March 2021, 20210304102827
[58] Country of Origin Information Services Section of the Department of Home Affairs dated 10 March 2022 – Common Claims – Sri Lanka, pp. 9-10
…
Former LTTE members
Those with indirect and past connections with the LTTE, unless at a very high level of the organisation or expressed in criminal acts or war crimes, are unlikely to be of significant interest to the Sri Lankan security forces. Authorities distinguish between so-called ‘low profile’ and ‘high profile’ former LTTE members when assessing their potential security risk.[59] ’Low-profile’ former LTTE members include former combatants, those employed in administrative or other roles, and those who may have provided a high level of non-military support to the LTTE during the war.[60] ‘High-profile’ former LTTE members include individuals who held senior positions in the LTTE’s military wing and civilian administration, and those suspected of terrorist or serious criminal offences during the war, or of providing weapons or explosives to the LTTE.[61] According to the Department of Foreign Affairs and Trade’s (DFAT) most recent country information report, low-profile LTTE members who come to the attention of the Sri Lankan authorities – particularly if they are suspected of having a combat role during the war – would likely be detained for questioning and may be sent for rehabilitation.[62] Following their release, a low-profile former LTTE member may be monitored but would not generally be prosecuted.[63] The number of high-profile former LTTE members living in Sri Lanka is assessed to be small and the majority have already come to the attention of authorities.[64] Any remaining high-profile former LTTE members who came to the attention of the authorities would likely be arrested, detained and prosecuted, and, once they had completed their sentences, would likely be subjected to some form of rehabilitation and continued monitoring.[65]
[59] 'DFAT Country Information Report Sri Lanka', Department of Foreign Affairs and Trade, 04 November 2019, p.35, 20191104135244
[60] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.26, 20211223094818
[61] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.25, 20211223094818
[62] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.26, 20211223094818
[63] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.26, 20211223094818
[64] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.25, 20211223094818
[65]'Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights', United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.7, 20220303152645; 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, pp.25-26, 20211223094818
Sri Lankan authorities may monitor returning former Liberation Tigers of Tamil Eelam (LTTE) members. The LTTE no longer exists as an organised force in Sri Lanka,[66] and only a few incidents involving former LTTE members have been recorded since the end of the war.[67] For example, in December 2020 a Tamil family, including a woman alleged to be a former LTTE cadre, was stopped while travelling from Kandy to Jaffna in possession of what police said was an explosive, while in July 2020 there was a failed attempt by a former LTTE cadre to carry out a suicide bombing.[68] Nevertheless, the government is sensitive to the potential re-emergence of the LTTE,[69] and former LTTE members may be monitored.[70] Northern Province sources allege that security services’ intimidation of ex-LTTE members has increased since President Rajapaksa’s Sri Lanka Podujana Peramuna (SLPP) swept local government elections in February 2018,[71] while there were reports following the 2019 Easter Sunday bombings that Sri Lankan security forces sought to co-opt ex-LTTE members as informants.[72] The extent of monitoring typically depends on an individual’s seniority within the LTTE; ongoing involvement with politically-sensitive issues, including protests relating to disappeared persons; and links to the Tamil diaspora, particularly elements considered radical by the government.[73] For example, in June 2020 a prominent Norway-based activist was reportedly detained at Colombo’s airport when seeking to leave Sri Lanka – he was released after questioning.[74] Defence Secretary Kamal Gunaratne claimed in August 2020 that remnants of the LTTE were attempting to recruit new supporters and vowed the government would not permit room for separatism.[75]
Individuals advocating more broadly for Tamil separatism may also attract the attention of Sri Lankan authorities. The majority of available sources indicate that those who hold a ‘significant role’ in Tamil separatist activities: e.g. through holding leadership positions in Tamil diaspora groups, particularly those deemed to hold radical views; those formerly part of the LTTE, particularly in high-profile roles; those suspected of raising funds for the LTTE during the war; and those who actively advocate for Tamil statehood would likely be of particular interest to the Sri Lankan authorities.[76] However, a May 2021 UK Upper Tribunal decision ruled that lower profile individuals active in the diaspora who express a belief in Tamil separatism may also attract attention,[77] and that Sri Lankan authorities draw no material distinction between violent separatism, as espoused by the LTTE, and non-violent advocacy for that end.[78] Individuals seeking to commemorate the end of the war and LTTE combatants killed during it have reported security forces surveillance, have been prevented from doing so, and in some cases have faced arrest – including under PTA.[79] For example, Martyrs Day commemorations (marked in honour of Tamil fighters killed during the war) were held in 2019, following the change of government, although there were incidents of harassment by local authorities, along with the arrest of some individuals involved in preparations.[80] However, commemorations were banned in 2020, with police citing a prohibition on gatherings due to COVID-19.[81] Some commemorations went ahead in spite of the ban, and there were a number of reports of these being disrupted or of those responsible being arrested under the PTA.[82] Authorities have arrested at least 70 people under the PTA for sharing commemorative social media posts containing LTTE images or Tamil nationalist iconography.[83]
In March 2021, the Rajapaksa government announced it would establish new rehabilitation centres to ‘de-radicalise’ individuals promoting extremist ideologies. The plan, part of regulations enacted under the PTA, reportedly gives the government the power to arrest and transfer people to a rehabilitation centre for up to two years.[84] An extraordinary gazette dated 12 March 2021 said that this will apply to individuals suspected of holding ‘radical’ or ‘extremist’ views or who cause or plan acts of violence or religious, racial, or communal disharmony.[85] Authorities will be able to choose rehabilitation in lieu of prosecution,[86] and in May 2021, a close Rajapaksa ally was appointed as ‘rehabilitation facilitator’ for the north and east.[87] A Supreme Court ruling in early August 2021 temporarily suspended the plan while it considers arguments against it.[88] Critics, including the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, have warned that the regulations may jeopardize the rights and liberties of persons who may be detained arbitrarily, especially religious and ethnic minorities, and may curtail political dissent with no effective due process guarantees.[89]
The Prevention of Terrorism Act (PTA) has been used to arrest hundreds of mostly Muslim Sri Lankans as part of investigations into the 2019 Easter Sunday bombings, although most have now been released. Prior to the Easter Sunday bombings, government statistics indicated that the majority of individuals held under the PTA were Tamils detained in many cases for years in connection with serious security offences.[90] Since the Easter Sunday bombings, hundreds of Muslims have been arrested under the PTA, some without evidence.[91] Government data indicate that, as of 2 December 2021, 333 people were detained under the PTA, of whom 16 were convicted, 11 were under appeal and the remaining were detained as suspects.[92] Eighty-one PTA detainees have been released since June 2021.[93] The Human Rights Commission of Sri Lanka recorded 109 arrests under the PTA in 2021.[94]
Torture and ill-treatment of detainees has been most closely associated with detention under the PTA but can also occur during general police investigations. The systemic use of torture by police is well-documented, and is particularly associated with those arrested and detained under the PTA.[95] Reports indicate that ill-treatment and torture by the police also occurs in non-PTA cases in order to extract confessions or elicit evidence against the accused, and has resulted in deaths.[96] While the risk of torture has decreased since the end of the war, DFAT assesses that it is still used, including as a routine tool of policing.[97] Multiple local sources have told DFAT that police routinely mistreat suspects during criminal investigations, including using torture to extract confessions.[98] DFAT states that torture, where it occurs, is not confined to a particular geographic region or ethnic group, but is a nationwide problem which affects all communities; however, it is more likely to affect poor and marginalised groups, such as members of criminal groups and LGBTI individuals.[99] DFAT assesses that, while Sri Lankans face a low risk of torture overall, those detained face a moderate risk of torture, particularly if they are poor, associated with criminal elements, or are perceived to challenge the government.[100] A number of human rights groups claim that Tamils have been disproportionately affected and police are generally not held accountable.[101] Tamil asylum seekers continue to make periodic claims of torture on account of their ethnicity and accusations of ties to the LTTE.[102] DFAT states that few reports of torture are investigated or verified within Sri Lanka, making it difficult to determine the exact prevalence of torture.[103] In recent years, the Human Rights Commission of Sri Lanka (HRCSL) has carried out routine visits to detention sites; however, in its December 2021 report, DFAT was not able to confirm if these visits continue.[104] Local sources have told DFAT that, since the passage of the 20^th Amendment to the Constitution, the HRCSL is no longer truly independent and much less effective in its anti-torture role.[105]
The government has introduced a bill to amend the PTA which critics say is ineffective and does not adequately address human rights concerns. In January 2022, the government gazetted a bill to amend the PTA.[106] The United Nations High Commissioner for Human Rights and civil society groups have criticised the bill, calling for the PTA to be repealed and a moratorium on its use in the interim.[107] They said the proposed amendments failed to address aspects of the PTA which have enabled human rights abuses and the targeting of minorities, critics and journalists.[108] These include: a vague, overly broad offence of terrorism; the admissibility of confessions despite evidence of torture of PTA detainees; a lack of due process safeguards at the time of arrest; the use of arbitrary arrest and prolonged detention, and a lack of judicial scrutiny.[109]
Fear of harm from paramilitary groups or gangs
Paramilitary groups have disbanded although some gang activity continues in the north. At the conclusion of the civil war, military intelligence and security personnel, sometimes allegedly working together with paramilitary groups, were responsible for the detention of civilians accused of having LTTE connections.[110] Although paramilitaries are no longer active, there are reports that former members of Tamil paramilitary groups are engaged in criminal activities.[111] Since mid-to-late 2017, there have been periodic reports of violent attacks in Jaffna and the Northern Province committed by members of the so-called ‘Aava’ (or ‘Ava’) gang,[112] while there have also been reports of substantial gang violence more broadly in the north.[113] Some Tamil sources say that the Aava gang is enabled by Sri Lanka military intelligence, but DFAT has not been able to verify this.[114] Several former paramilitary leaders are involved in mainstream politics. Following Gotabaya Rajapaksa’s election as president in November 2019, former paramilitary leader Douglas Devananda was appointed fisheries minister; another former paramilitary leader, Pillayan, was elected in August 2020 parliamentary elections despite being in remand custody over the killing of a political opponent, and charges against him were dropped in January 2021.[115] Karuna Amman, former leader of the paramilitary Karuna Group, and later the Tamil party Tamil Makkal Viduthalai Pulikal (TMVP), is now a member of the Sri Lanka Freedom Party (SLFP), part of the government’s ruling coalition.[116] Overall, incidents of extra-judicial killing, disappearances and abductions, including incidents of violence involving former LTTE members, have decreased considerably since the end of the civil war.[117] [118]
…
Complementary protection
[66] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.25, 20211223094818
[67] E.g. 'Ex-LTTE cadre, wife and sister arrested with firearms, explosives', Colombo Page, 13 October 2019, 20191014130858; 'An Accidental Bomb Blast Identified an Active LTTE Intelligent Agent', Asian Tribune, 07 July 2020, 20200709151217; 'Tamil family arrested by Sri Lankan police', Tamil Guardian, 08 December 2020, 20201209152104; 'Sri Lankan intelligence arrest two Tamils for allegedly manufacturing firearms', Tamil Guardian, 22 October 2020, 20201023103006
[68] 'Tamil family arrested by Sri Lankan police', Tamil Guardian, 08 December 2020, 20201209152104; 'KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT', Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, p.74, 20210601113225
[69] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.24, 20211223094818
[70] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, pp.19, 49, 20211223094818 ; 'Report of a Home Office fact-finding mission to Sri Lanka', UK Home Office, 20 January 2020, p.16, 20200123162928
[71] 'Report of a Home Office fact-finding mission to Sri Lanka', UK Home Office, 20 January 2020, p.15, 20200123162928
[72] ‘Sri Lankan military orders former LTTE cadres to become informants’, Tamil Guardian, 1 May 2019, 20190710121751;
[73] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, pp.25-27, 20211223094818 ; 'KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT', Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, p.119, 20210601113225
[74] 'Key LTTE activist in Norway - Nadaraja Sethuparan arrested at BIA', Asian Tribune, 23 June 2020, 20200624105850
[75] 'Sri Lankan Defence Secretary claims 'need to eliminate separatist ideology' in North-East and Tamil diaspora', Tamil Guardian, 17 August 2020, 20200818105547
[76] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, pp.25-27, 20211223094818; 'KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT', Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, pp.119-120, 20210601113225
[77] 'KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT', Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, e.g. pp.133-134, 142-143, 20210601113225
[78] 'KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT', Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, p.76, 20210601113225
[79] 'Sri Lanka maintains detention of Tamils commemorating Mullivaikkal', Tamil Guardian, 29 July 2021, 20210730104553; 'Arrests in Jaffna as Sri Lankan police block Thileepan commemorations', Tamil Guardian, 15 September 2020, 20200916075319; ‘Sri Lankan police crackdown on rememberance of Thileepan’, Tamil Guardian, 16 September 2020, 20200921124107;'Repression of Dissent in Sri Lanka: 1 st - 31st May 2020', INFORM Human Rights Documentation Centre, 29 June 2020, pp.3, 13, 20200702160949; 'Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka', OHCHR, 18 February 2020, p.7, 20200221140652; ‘Good Governance allows the Martyrs Day – ‘Maveerar Naal’ celebrations on the sly’, Asian Tribune, 26 November 2017, CXC90406618275; ‘Thousands attend Maaveerar Naal commemorations at destroyed Thuyilum Illam in Kilinochchi’, Tamil Guardian, 27 November 2017, CXC90406620312; ‘Martyrs Day’ events end in N-E’, Ceylon Today, 28 November 2017, CXC90406620309; ‘LTTE’s martyrs remembered at Valvettithurai’, Valvettithurai.org, 21 November 2017, CISEDB50AD7706; ‘Defying Confusing Magisterial Orders Prabhakaran’s Birthday Celebrated Widely’, Colombo Telegraph, 27 November 2018, CXBB8A1DA39486; ‘Mahaveer Naal celebrated without any major incidents in the North’, Asian Tribune, 28 November 2017, CXC9046618423; ‘Sri Lankan regime backing away from conflict resolution vows’, Asia Times, 5 December 2017, CXC90406618789
[80] 'Tamil nation commemorates Maaveerar Naal 2019', Tamil Guardian, 27 November 2019, 20191128160424; 'Trouble brews in post-election Sri Lanka', Aljazeera, 08 December 2019, 20191209095947
[81] 'Sri Lanka: 2020 Heroes’ day commemorations are banned in North and East', Sri Lanka Brief, 21 November 2020, 20201126120248
[82] 'Sri Lankan police enter TNPF offices in Jaffna to stop Maaveerar Naal commemorations', Tamil Guardian, 27 November 2020, 20201130114324; 'Priest arrested for organizing LTTE Heroes’ Day commemorations', Colombo Page, 28 November 2020, 20201130113318; 'Maaveerar Naal marked by Tamil politicians across the North-East', Tamil Guardian, 27 November 2020, 20201130113709
[83] 'Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights', United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.10, 20220303152645
[84] 'Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights', United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.10, 20220303152645; 'What is behind the anti-Muslim measures in Sri Lanka?', Aljazeera, 12 April 2021, 20210413125122
[85] 'Sri Lanka To Set Up Rehabilitation Centers For Extremists – Analysis', Eurasia Review, 15 March 2021, 20210316115940
[86] 'Sri Lanka To Set Up Rehabilitation Centers For Extremists – Analysis', Eurasia Review, 15 March 2021, 20210316115940
[87] 'Rajapaksa ally appointed as rehabilitation facilitator for North-East of Sri Lanka', Tamil Guardian, 05 May 2021, 20210506220746
[88] 'Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights', United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.10, 20220303152645; 'Supreme Court suspends presidential order for de-radicalization of extremists', Colombo Page, 05 August 2021, 20210806143527
[89] 'Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights', United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.10, 20220303152645
[90] 'Sri Lankan Minister claims all pending pre-2016 PTA cases ‘to be concluded in next three months'', Tamil Guardian, 15 August 2021, 20210819124012; Country Information Request CI181005093018339 – Current status of PTA in Sri Lanka’, Department of Foreign Affairs and Trade, 5 November 2018, CXBB8A1DA37923; ‘UN Special Rapporteur (Ben Emmerson) on human rights and terrorism in Sri Lanka’, Australian Department of Foreign Affairs and Trade, 14 August 2017, p.2, CISEDB50AD5239; ‘PTA suspended pending passage of new Counter Terrorism Law’, Island, The, 8 February 2017, CXC90406620371; ‘Human rights and counter terrorism: UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism concludes visit to Sri Lanka, Preliminary findings of the visit to Sri Lanka’, Office of the United Nations High Commissioner for Human Rights, 14 July 2017, CXC90406610453; ‘Locked up without evidence: Abuses under Sri Lanka’s Prevention of Terrorism Act’, Human Rights Watch, 29 January 2018, p.5, CIS7B83941158; ‘Report of the Working Group on Arbitrary Detention on its visit to Sri Lanka’, UN Human Rights Council, 23 July 2018, p.7, CIS7B839419490; ‘Police arrest 2289 over Easter Sunday terror attacks – Police Spokesman SP Ruwan Gunasekara’, The Sunday Reader, 3 June 2019, 20190711142139; ‘Over 2,280 suspected arrested since Easter Sunday terror attacks’, Daily News, 5 June 2019, 20190710120316; ‘Brother of Suicide Bomber Arrested’, Daily News, 10 May 2019, 20190510123043; ‘Govt urged to review ‘security reforms’ as 60 suspects taken in under PTA’ The Island, 25 April 2019, 20190508133730; 'Official list of detainees under PTA', Ceylon Today, 30 July 2017, CXC90406612037; 'Promotion reconciliation, accountability and human rights in Sri Lanka: Report of the Office of the High Commissioner for Human Rights ', OHCHR, 27 January 2021, p.13, 20210203162131
[91] '“In a Legal Black Hole”: Sri Lanka’s Failure to Reform the Prevention of Terrorism Act', Human Rights Watch (HRW), 07 February 2022, p.6, 20220209162013
[92] 'Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights', United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.10, 20220303152645
[93] 'Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights', United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.10, 20220303152645
[94] '“In a Legal Black Hole”: Sri Lanka’s Failure to Reform the Prevention of Terrorism Act', Human Rights Watch (HRW), 07 February 2022, p.8, 20220209162013
[95] 'BTI 2022 Country Report - Sri Lanka', Bertelsmann Stiftung, 23 February 2022, p.14, 20220224093201; 'Promotion reconciliation, accountability and human rights in Sri Lanka: Report of the Office of the High Commissioner for Human Rights ', OHCHR, 27 January 2021, p.10, 20210203162131; 'Country Reports on Human Rights Practices for 2020 - Sri Lanka', US Department of State, 30 March 2021, p.6, 20210401122412
[96] 'Country Reports on Human Rights Practices for 2020 - Sri Lanka', US Department of State, 30 March 2021, p.6, 20210401122412; 'Promotion reconciliation, accountability and human rights in Sri Lanka: Report of the Office of the High Commissioner for Human Rights ', OHCHR, 27 January 2021, p.10, 20210203162131'
[97] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.41, 20211223094818
[98] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.40, 20211223094818
[99] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.40, 20211223094818
[100] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.41, 20211223094818
[101] 'Freedom in the World 2021 - Sri Lanka', Freedom House, 03 March 2021, 20210304102827; ‘Human Rights Watch World Report 2018’, Human Rights Watch, 18 January 2018, p.507, NGED867A63
[102] 'Sri Lanka: Torture and Sexual Violence by Security Forces 2020-2021', Yasmin Sooka and Frances Harrison, International Truth and Justice Project, September 2021, pp.24-27, 20210909092512
[103] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.41, 20211223094818
[104] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.41, 20211223094818
[105] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.41, 20211223094818
[106] 'Constitutionality of PTA amendment bill challenged in SC', Daily Mirror (Sri Lanka), 14 February 2022, 20220218114502; '“In a Legal Black Hole”: Sri Lanka’s Failure to Reform the Prevention of Terrorism Act', Human Rights Watch (HRW), 07 February 2022, p.1, 20220209162013
[107] 'Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights', United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.9, 20220303152645; 'Sri Lanka: End the use of and repeal the draconian PTA', Amnesty International, 17 February 2022, p.3, 20220218110132; 'Civil Society statement on proposed amendments to Prevention of Terrorism Act', Daily FT, 08 February 2022, 20220216170455
[108] 'Civil Society statement on proposed amendments to Prevention of Terrorism Act', Daily FT, 08 February 2022, 20220216170455
[109] 'Sri Lanka: End the use of and repeal the draconian PTA', Amnesty International, 17 February 2022, p.3, 20220218110132; 'Civil Society statement on proposed amendments to Prevention of Terrorism Act', Daily FT, 08 February 2022, 20220216170455
[110] 'Written statement* submitted by ASSOCIATION CULTURELLE DES TAMOULS EN FRANCE, a non-governmental organization in special consultative status', Association Culturelle Des Tamouls En France, United Nations Human Rights Council, 25 February 2022, p.2, 20220303165142; ‘Country Reports on Human Rights Practices for 2015 – Sri Lanka’, US Department of State, 13 April 2015, p.7, OGD95BE926320
[111] 'Focus Sri Lanka', State Secretariat for Migration, Switzerland, 29 July 2021, p.8, 20220304153758
[112] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.17, 20211223094818; ‘We will not allow Aava group to raise its head: Law & Order Minister’, Lanka Business Online, 17 November 2017, CXC90406617954; ‘Sri Lanka police arrest six members, including leader of criminal Ava gang’, Colombo Page, 7 August 2017, CXC90406611722
[113] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.17, 20211223094818; 'North in the grip of armed gangs again', Sunday Times (Sri Lanka), 11 July 2021, 20220304162027
[114] 'Sri Lankan police arrest Tamil youth over alleged gang affiliation', Tamil Guardian, 12 October 2021, 20211013101949; 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.17, 20211223094818
[115] 'Jailing Activists and Pardoning Murderers: Monitoring Ten Issues of Concern in Sri Lanka in 2021', Sri Lanka Campaign for Peace and Justice, February 2022, p.13, 20220218122156; ‘Sri Lanka’s interim cabinet under new President sworn-in’, Colombo Page, 22 November 2019, 20191231122548; 'Four members of Rajapaksa family find place in Sri Lanka cabinet', Aljazeera, 12 August 2020, 20200813134733; 'Court allows remanded MP-elect Pillayan to attend sessions of new parliament', Colombo Page, 18 August 2020, 20200819210740
[116] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.25, 20211223094818
[117] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.17, 20211223094818
[118] Country of Origin Information Services Section of the Department of Home Affairs dated 10 March 2022 – Common Claims – Sri Lanka, pp 13-19
Failed asylum seekers who departed illegally
Failed asylum seekers who depart Sri Lanka irregularly by boat are generally considered to have committed an offence under the Immigrants and Emigrants Act. Under the Act, Sri Lankan citizens must only leave Sri Lanka from approved ports of departure using a valid Sri Lankan passport.[119] On arrival at the airport in Colombo, returnees are interviewed by Sri Lankan Immigration; depending on their circumstances of their departure and their history, other agencies such as the Criminal Investigations Department (CID), the Sri Lankan State Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI) may also conduct interviews.[120] Returnees who departed Sri Lanka illegally will be referred to the Criminal Investigations Department (CID) at the airport and charged accordingly.[121] Once charged, returnees are taken to Negombo Magistrate’s Court where they are typically bailed and released.[122] The cases of those charged with illegal departure may take years to resolve, requiring on-going court appearances.[123]
Returnees who illegally departed Sri Lanka are fined. Although it is theoretically possible for those convicted of illegal departure to face a custodial sentence, in practice, according to local sources, a fine is imposed, typically LKR 50,000 - 200,000 (AUD350-1400).[124] Those who are unable to pay the fine may pay in instalments, but if still unable, may be imprisoned for 14 days.[125] Fines may be issued to act as a deterrent towards joining boat ventures in the future.[126] Children over the age of 12 can be charged with breaking the Immigration and Emigrants Act, as long as they were 12 or over at the time of the offence.[127] DFAT is not aware of any returnees in 2021 being detained for matters other than illegal departure, although the number of returnees was reduced due to COVID-19.[128] DFAT is also not aware of any returnees being mistreated at the airport.[129]
Organisers and facilitators of people smuggling ventures face criminal prosecution. Persons who departed illegally are interviewed by authorities at the airport upon arrival in Sri Lanka; and that information can be used to identify captains or organisers of people smuggling ventures.[130] Facilitators and organisers of irregular migration from Sri Lanka, including captains and their crew, may be charged with an offence under section 45 C of the Immigrants and Emigrants Act.[131]They are typically refused bail.[132] Those found guilty normally receive prison sentences of between one and three years depending on the extent of their involvement, with sentences usually closer to three years.[133] Individuals prosecuted are typically limited to on-board crew, including those skippering and operating asylum-seeking vessels.[134] However, authorities have also prosecuted high level syndicate leaders linked to people smuggling ventures.[135]
Sri Lankan authorities collect and maintain intelligence on returnees, including through the use of ‘stop’ and ‘watch’ electronic databases accessible at Colombo airport. Different agencies, including the Department of Immigration and Emigration, the State Intelligence Service, the Criminal Investigation Department and sometimes the Terrorism Investigation Division process returnees upon arrival at Colombo airport.[136] Those with a former LTTE connection are likely to be questioned, although sources indicate this would depend on the case.[137] These agencies check travel documents and identity information against immigration and intelligence databases and records of outstanding criminal matters.[138] Credible sources state that, as part of this process, police will seek to confirm the identity of returnees travelling on temporary travel documents.[139] Where there are outstanding criminal warrants, criminal procedures will apply.[140] ‘Stop’ lists include names of those individuals that have an extant court order, arrest warrant or order to impound their Sri Lankan passport.[141] Those who appear on this list will reportedly be detained at the airport.[142] ‘Watch’ lists include names of those individuals that the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities.[143] A May 2021 UK Upper Tribunal decision found that additional questioning over and above the confirmation of identity for those travelling on a temporary travel document is only reasonably likely to occur where an individual’s name appears on one of these lists.[144] [145]
[119] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818; ‘Immigrants and Emigrants Act (Sri Lanka), No. 20 of 1948 (1 November 1949), CISBE8E6BE638
[120] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818
[121] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818
[122] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818
[123] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.48, 20211223094818
[124] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.48, 20211223094818
[125] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.48, 20211223094818
[126] 'DFAT Country Information Report Sri Lanka', Department of Foreign Affairs and Trade, 04 November 2019, p.68, 20191104135244
[127] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.48, 20211223094818
[128] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818
[129] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818
[130] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818; ‘Country Information Request No. LKA15302 and LKA15586: Treatment of suspected people smugglers’, Department of Foreign Affairs and Trade, 1 January 2014, CX317331
[131] 'DFAT Country Information Report Sri Lanka', Department of Foreign Affairs and Trade, 04 November 2019, p.68, 20191104135244
[132] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818
[133] 'DFAT Country Information Report Sri Lanka', Department of Foreign Affairs and Trade, 04 November 2019, p.68, 20191104135244
[134] ‘Asylum seekers transferred at sea by Australia to face court in Sri Lanka’, Guardian (Unlimited) (UK), 20 February 2015, CXBD6A0DE1686
[135] ‘The risky ride to nowhere’, Sunday Observer, 10 April 2016, CX6A26A6E4697
[136] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818; 'LKA200301.E Sri Lanka: Treatment by authorities of returnees to Sri Lanka, including failed refugee claimants and family members of persons who have left Sri Lanka and claimed refugee status (2017–August 2020)', Immigration and Refugee Board of Canada, 04 August 2020, 20201019173203
[137] 'Report of a Home Office fact-finding mission to Sri Lanka', UK Home Office, 20 January 2020, p.18, 20200123162928
[138] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818
[139] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818
[140] 'Country Policy and Information Note Sri Lanka: Tamil Separatism’ , UK Home Office, May 2020, p.73, 20200527172009
[141] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.24, 20211223094818
[142] 'KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT', Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, p.119, 20210601113225; 'Country Policy and Information Note. Sri Lanka - Tamil Separatism', Version 7.0, UK Home Office, 17 June 2021, p.8, 20210624114752
[143] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.24, 20211223094818
[144] 'KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT', Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, pp.118-119, 20210601113225; 'Country Policy and Information Note. Sri Lanka - Tamil Separatism', Version 7.0, UK Home Office, 17 June 2021, p.8, 20210624114752
[145] Country of Origin Information Services Section of the Department of Home Affairs dated 10 March 2022 – Common Claims – Sri Lanka, pp 22-24

The Tribunal notes that since this independent information was compiled there has been an economic crisis in Sri Lanka and a political upheaval. This was discussed in the second hearing, and the applicant’s representative indicated that the current President had made public statements indicating that protest would not be tolerated. Further details of this were provided after the hearing.
Hearing, credibility, findings, and assessment
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Sri Lanka and accordingly his claims will be assessed against Sri Lanka.
The applicant has provided oral evidence in the entry interview, and interview on 3 March 2012 leading to the negative Protection Obligations Evaluation of 23 April 2012, and interview leading to the positive Independent Protection Assessment of 23 October 2012 and the interview dated 13 September 2017 leading to the negative assessment of the delegate in relation to the SHEV application.
Based on those interviews, the applicant’s written claims and statutory declarations and the prior assessments as to whether protection and SHEV criteria are met the Tribunal is satisfied that a significant proportion of what the applicant claims happened to him in Sri Lanka is genuine.
The Tribunal accepts the following:
·In 1997 the applicant was regularly stopped by the army and asked to show his national ID card.
·On one occasion around this time the applicant was taken to the local police station and detained overnight and questioned about where he was residing and travelling to.
·The applicant relocated in 1998 to [Country 3] and returned to Sri Lanka in July 2000 as his working visa had expired.
·In May 2006 to men came to the applicant’s house demanding money which the applicant gave them.
·In 2008 when the applicant was running a [business] the army sometimes confiscated his [vehicle] as well as accusing the applicant of transporting members of the LTTE.
·In or around June 2008 the applicant was taken by the CID where he was detained, questioned and mistreated for a period of six months before being released.
·In or around July 2009 men came to the applicant’s home demanding money, threatening the applicant with a gun and hitting his father-in-law. The applicant had no money and thus none was provided – there was a warning that the applicant would be watched.
·In January 2010 the applicant’s father-in-law was killed in the shop which the applicant and the father-in-law had been running in [Town 1].
·Later in 2010 the applicant received a phone call from a man talking in Sinhalese indicating that the applicant had to meet him. The applicant did not do this.
·Around two weeks later and then a month after that there was loud knocking the door of the applicant’s home at night. The applicant scared the visitors away by shouting ‘thief’.
·In July 2010 the applicant relocated to Colombo.
·From August 2010 until September 2010 the applicant relocated to [Country 4].
The Tribunal explored with the applicant in the first hearing new claims that when operating the [business] he also in fact transported LTTE members. The Tribunal asked the applicant in the hearing to provide detail of this. The applicant was able to provide detail which caused the Tribunal to consider that the applicant was being truthful in these claims. The applicant indicated that LTTE members were transported between approximately 2003 and 2006. The applicant indicated that on various questioning by authorities it would be put to him that he was transporting LTTE members which he would deny. The applicant indicated that authorities never caught him transporting LTTE members.
In the hearing, the applicant indicated that when questioned by authorities he would also be asked if he had provided funds to the LTTE, which he would deny. The Tribunal asked the applicant if he did provide funds to the LTTE. In response, the applicant indicated that he provided a total of 10 Laks to the LTTE paid in two instalments in 2004.
The Tribunal explored with the applicant in the first Tribunal hearing his claims to have been detained by the CID in March 2011 and taken to a location from which he eventually escaped. The applicant indicates that he was taken to a room in a house where he was detained for approximately four days. On each day he would be questioned by different individuals. They would accuse the applicant of funding the LTTE and transporting members, which the applicant denied. The Tribunal asked the applicant if he was physically harmed during this detention. The applicant indicated that he would be beaten on the arm with a rod.
The Tribunal asked the applicant to describe his escape. The applicant indicated that he escaped when he was taken to the toilet. There was a window/opening which he escaped through. The applicant indicated that when he passed through the opening he was detected by individuals who chased him into the jungle. The applicant indicated that he managed to evade these individuals in the jungle and ran for two to three km before he entered a home in which the individual spoke Tamil and gave him sanctuary. The applicant indicated that he stayed there for a day before going to his uncle’s who made all of the arrangements to facilitate him a few days later to travelling to [Country 1].
In the first hearing, the Tribunal put to the applicant that in his entry interview shortly after he arrived in Australia he indicated that he escaped when he pushed a guy who came to him and jumped the fence. The Tribunal noted that in other written statements the applicant had indicated that he fled through a window. However, the Tribunal asked the applicant to explain the earlier inconsistent account of his escape. In response, the applicant indicated that he can only recall jumping out of the window and can’t recall pushing an individual.
The Tribunal in the second hearing put to the applicant that the most recent statement that had been provided which makes the most comprehensive factual claims as to what happened in Sri Lanka also provides an inconsistent account of his escape from that given in the first hearing. The submission details the applicant being taken to a toilet where there was a window that was too small for him to escape from. It indicates that the applicant decided that to seek to make an escape if he was taken to the toilet by only one person. The applicant indicates that he was subsequently taken to the toilet by one person who stood outside, with the applicant knocking when he was finished. The applicant summoned all his force and pushed the door causing the man to fall over with the applicant running for his life.
The Tribunal put to the applicant that this again was inconsistent with the account in the first hearing that he had fled out of a window, also being the account provided into written statements.
Tribunal asked the applicant again if he could explain this inconsistency. In response in the second hearing the applicant then changed his evidence from the first hearing and indicated that he in fact pushed the man who came to the door of the room that he was been held in. The applicant explained inconsistency by indicating that his mind was muddled.
In the first hearing the Tribunal explored with the applicant the obtaining of his passport to leave for [Country 1].
The Tribunal discussed with the applicant in the first hearing prior evidence in relation to the passport used to travel to [Country 1] in 2011. It was indicated that in the interview leading to the April 2012 Protection Obligation Evaluation the applicant indicated that after he was detained by the CID in March 2011 and escaped that his wife posted his passport to him and his uncle’s where he was in hiding. In the interview leading to the October 2012 Independent Protection Assessment it was indicated that the applicant’s own passport had been lost and that the uncle arranged a new passport which required higher level enquiries before being issued. His uncle organised everything. It was indicated by the applicant that his passport had been lost after returning from [Country 3] in 2000. In the interview with the delegate relating to the current application the applicant indicated that he had to leave on a fraudulent passport as he was unable to leave on his current passport. To that end he obtained a passport with a different [letter] of his surname. In the post interview written submission it was indicated that the applicant merely assumed the passport was fraudulent because it was obtained by an agent who were notorious for providing nongenuine passports. It was indicated that the applicant was unsure of how his uncle obtained the passport. It was further indicated that the applicant never said that his wife had posted him the passport. The Tribunal has checked the interview and it is clearly translated that the applicant said that his wife posted him the passport.
The recent statement to the Tribunal indicates that it was his wife who handed him the passport after his escape from the CID in March 2011. This passport was obtained after the applicant returned from [Country 4], not [Country 3] as has previously been indicated by the applicant.
The Tribunal noted to the applicant in the first hearing multiple inconsistencies in relation to the passport. In response, the applicant indicated that after he returned from [Country 3] his passport expired and the applicant’s agent obtained another passport which he used to travel to [Country 4] in 2010. In other evidence relating to the passport in the first hearing, the applicant indicated that the passport that he used to enter [Country 4] was given to his agent on return, and his agent arranged for a new passport. The agent had lost the original passport.
The applicant then shifted from earlier evidence to indicate that the passport that he used to travel to [Country 1] in 2011 had been issued with the assistance of the agent after his return from [Country 4] in 2010. It was noted to the applicant that this was inconsistent with the earlier indication in hearing that the passport was obtained after his escape from the CID in March 2011.
The applicant’s migration agent submitted that this was because the applicant, when the Tribunal was asking when the passport was obtained, considered that this meant when it was given to him, not when it was issued.
The Tribunal has checked the recording of the early part of the hearing and the applicant, on more than one occasion indicates that the passport was obtained by the agent after his escape from the CID in March 2011. Earlier evidence indicates that the passport was provided to the applicant by the agent in contrast to later evidence of the applicant that was handed to him by his wife.
The Tribunal put to the in the first hearing that the only difference in the passport used to travel to [Country 1] is a difference in the letter of the applicant’s surname. It is noted that all other details including the applicant’s identity number are the same. The Tribunal noted that this was more suggestive of a transliteration issue rather than the use of a fraudulent passport. The Tribunal would consider a fraudulent passport would contain a completely different identity.
In response, the applicant indicated that if money is given anything can happen. The agent can guide as to the appropriate counter at the airport and facilitate exit. This does not explain why a supposed fraudulent passport would contain the applicant’s true identity with only a difference of one letter of the surname.
Given that the passport that the applicant used to travel to [Country 1] on was issued in November 2010, the Tribunal considers that the truth of the situation is that the passport was obtained after the applicant returned from [Country 4], not after he escaped from the CID in March 2011.
However, at key points in the applicant’s various claims over time he has indicated that it was the detention and escape from the CID in 2011 that caused him to decide that he needed to flee the country thus causing him to obtain a fraudulent passport. Indeed, as indicated on multiple points in the first Tribunal hearing the applicant indicated that the passport was obtained by an agent after his escape from detention, contrary to later claims by the applicant that the passport was already in existence.
Even if the Tribunal were to accept that there was legitimate confusion on the applicant’s behalf in terms of questions that have been asked of him in relation to his passport, the Tribunal is not satisfied that the passport is fraudulent as a result of the transposition of one letter only at the beginning of the applicant’s surname.
The fact that the Tribunal finds that the passport was issued before the applicant was detained and escaped from the CID in March 2011 causes the Tribunal to find that the detention and escape was not the catalyst for the applicant deciding that he needed to leave Sri Lanka. The Tribunal considers that the applicant already had plans in this respect which is undermining that he fled the country in fear of his safety as a result of escaping from the CID.
The Tribunal is also not satisfied that the applicant has been truthful in the account of his detention and escape in March 2011. This is because of direct inconsistencies in evidence as to how the applicant escaped, that is either through a toilet window or by pushing a guard outside the toilet door. The Tribunal does not think there would be confusion as to the means of escape in this significant and impactful event.
This inconsistency leading to the lack of satisfaction of this claimed detention and escape reinforces conclusions that this was not the catalyst for the applicant deciding that he needed to leave Sri Lanka.
The Tribunal put to the applicant in the hearing its potential view that the passport was not fraudulent. It indicated that therefore the fact of the applicant being able to leave Sri Lanka without difficulty on a genuine passport was undermining that he was a person of adverse interest. In response, the applicant referred to what he had been told by the agent which counters when leaving through immigration implying that there was some sort of arrangement or bribe to facilitate embankment through.
The Tribunal does not accept this. The Tribunal considers that there is a degree of credibility concerns of the applicant in the claims as to his being detained 2011, the circumstances of the obtaining of his passport and the circumstances which allowed him to leave the country without difficulty.
The Tribunal put to the applicant in the second hearing that the weight of independent information extracted in this decision did not establish to the Tribunal’s satisfaction that individuals in Sri Lanka today face a real chance of serious or significant harm based on the following factors alone: being Tamil, being a former resident in an LTTE controlled area, the applicant transporting LTTE members during the period of the conflict. The independent evidence suggests that only very high level LTTE involvement during the period of the conflict would now be a reason for authorities to draw an adverse interest.
The Tribunal indicated to the applicant and the migration agent that if it was seriously being claimed that the applicant faces harm on any of these grounds alone that further submissions should be made to substantiate this. No submissions were forthcoming.
The Tribunal further explored with the applicant in the second hearing his involvement with Tamil political advocacy groups in Australia. The applicant repeated that he had been involved since 2012 and attended meetings and protests. He referred to attending annual celebrations of ‘martyr’s day’. When asked where public protests occurred, the applicant referred to one protest at the Sydney Town Hall. The applicant indicated that he supported the Tamil separatist cause.
The Tribunal noted the World Tamil Coordinating Committee which is a prescribed organisation in Sri Lanka is not the same as the Australian organisation with a slightly different name, the Tamil Coordination Committee. The applicant’s migration agent submitted that the body of the recent letter from the TCC does refer to the Tamil Coordinating Committee. However, the Tribunal notes that the letterhead and name of the organisation below the signature refer to the Tamil Coordination Committee. The migration agent submitted in any event, the aim of the organisation is in support of Tamil separatism and that this would be recognised by authorities in Sri Lanka including because of the logo on the letterhead.
The Tribunal asked the applicant in the second hearing how he would be involved politically in Sri Lanka. He indicated that he would be involved ‘unconsciously’. The Tribunal asked the applicant should he be involved, or otherwise, the would-be fear of harm from authorities. The applicant indicated that he did have a degree of fear from authorities but would still take steps to be involved in the Tamil cause.
The Tribunal asked the applicant in the hearing how authorities in Sri Lanka would know about the applicant’s involvement in Tamil advocacy groups in Australia. In response the applicant indicates that there are photographs of him waving the Tamil flag on the internet together with information promoting the separatist Tamil ideologies. The representative was to provide links to this information after the second hearing. These links were subsequently provided together with pictures claimed of the applicant protesting for pro-Tamil causes in Australia. The response on the applicant’s behalf after the second hearing also makes various submissions including indicating zero tolerance policy of the new Sri Lankan President, Ranil Wickremesinghe, for any form of protesting. Reference is also made to Sri Lankan authorities undertaking significant intelligence gathering which makes likely that the applicant’s pro-Tamil activities in Australia would be identified.
The Tribunal asked the applicant in the second hearing that if it is the case that he is such a strong supporter of the Tamil separatist cause why that he was not a direct combatant in the civil conflict. In response, the applicant indicated that he did other things to support the Tamil cause such as providing food. The Tribunal also notes evidence which the Tribunal has accepted of the applicant transporting LTTE in members in his van.

The applicant then indicated that he did in fact, when he was 15 or 16, seek to join the Tamils and stayed with them in a camp for one to two weeks, but they ultimately did not accept him. The applicant responded that he did not know when the Tribunal asked him on several occasions why he was rejected. The applicant later mentioned that he was sick and vomiting.
The Tribunal asked the applicant why in the significant volume of prior evidence no claim had previously been made of seeking to join the Tamil cause when he was a youth and staying with them in a camp for one to two weeks. The applicant indicated that he did not think it was important as he did not end up joining them.
The Tribunal has concerns as to the credibility of the applicant’s claims now to have sought to join as a combatant because when he was a youth and had been rejected particularly given this claim never having been made before.
However, having made a number of adverse findings in terms of specific elements of the applicant’s claims, the Tribunal is persuaded that the applicant has had over his lifetime during adolescence and adulthood a belief and commitment in the Tamil cause. The Tribunal accepts that the applicant has a belief and desire for a separate Tamil state in Sri Lanka. The Tribunal accepts that the applicant has belonged to organisations in Australia advocating for Tamil rights and to at least some degree, advocating for Tamil separatism or at least supporters of the groups would be imputed as having that belief.
The Tribunal accepts that there are pictures on the internet of the applicant advocating for Tamil interests in Australia which could be imputed by those viewing it that he supports Tamil separatism. However, the Tribunal has some plausibility concerns that limited photographs of the applicant on the internet would be viewed by authorities in Sri Lanka and then correlated as being the applicant when he is identified on return to Sri Lanka.
The Tribunal has significant doubts that simply being in Australia belonging to a pro-Tamil group would in itself lead to an identification of that fact in Sri Lanka, and, even if there was knowledge in Sri Lanka that that would lead to the imputation for that individual in Sri Lanka of Tamil separatist beliefs leading to a requisite risk of harm.
The independent information extracted in this decision makes clear to the Tribunal that authorities in Sri Lanka in Sri Lanka take an adverse you towards those expressing Tamil separatist sentiments. That is clearly the situation in relation to those holding leadership positions in Tamil diaspora groups. However, the information does also indicate that a UK refugee decision-making authority has the those with lower profiles but active in the diaspora in terms of separatism may also attract attention.
However, based on all the evidence including the hearings, the Tribunal is persuaded that the applicant has a genuine belief in the Tamil separatist cause which he would wish to advocate on return to Sri Lanka. The applicant was reasonably candid in the third hearing to the degree with which he would engage in positive advocacy in Sri Lanka. He indicated that full advocacy would be limited because of the fear that he holds from authorities but he would take small steps. The Tribunal accepts the genuineness of the applicant’s statements in this respect. Thus, the Tribunal is persuaded that the applicant would, but for his fear from authorities, wish to engage in separatist activism on return to Sri Lanka.
The Tribunal is satisfied that the applicant would engage in the political advocacy as he would wish, if it were not for the fear of harm that he would face a real chance of serious harm. The Tribunal considers that the serious harm would be physical harassment during the process of investigation and/or questioning of the applicant in relation to his political activities. The Tribunal considers that the independent evidence demonstrates that if there is a serious adverse view by police and/or security authorities towards an individual in Sri Lanka then there is a real chance of not insignificant physical harm being inflicted during the process of questioning.
The Tribunal considers that the serious harm that the applicant faces would be systemic and discriminatory and for the essential and significant reason of his political opinion. As the risk of harm is from instrumentalities of the State, the Tribunal is not satisfied that the applicant would obtain effective protection from authorities. The Tribunal considers that the risk to the applicant applies to all areas of Sri Lanka as the adverse attention of the state towards the applicant in relation to the political views that he would wish to express would occur wherever in Sri Lanka the applicant expressed those views.
The Tribunal is satisfied that the applicant does not have the right to enter and reside in any third country.
Given these findings, the Tribunal determines that the applicant faces a real chance of serious harm.
In summary, the applicant has a well-founded fear of persecution for reason set out in s.5J(1) of the Act.
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.
David McCulloch
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.
…

[2022] AATA 4393

2 September 2022

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