1728120 (Refugee)

1728120 (Refugee) [2022] AATA 3781 (2 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Shamili Kugathas, Solicitor
CASE NUMBER:  1728120
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Paul Windsor
DATE:2 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 2 September 2022 at 9:34 am
CATCHWORDS
REFUGEE – Protection Visa – Sri Lanka – race – Tamil ethnicity – previous detention for suspected LTTE terrorist activity – actual and imputed pro-LTTE/anti-government political opinion – human rights activist – an ongoing critic of Sri Lankan government policies and actions in relation to Tamils – effective protection measures not available – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 36, 65, 438, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 31 October 2017 to refuse to grant the applicant a subclass 790 Safe Haven Enterprise (Class XE) visa (a form of 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 16 February 2016.
Departmental records indicate the applicant arrived at Christmas Island on [date] September 2011 as an Irregular Maritime Arrival on a [boat]. As an Offshore Entry Person (OEP), subsection 46A(1) of the Act prevented him from making a valid application for a protection visa.[1]
[1] See the Departmental file.
Following a positive Protection Obligations Evaluation assessment on 10 February 2012 the applicant subsequently was permitted to make a valid application for a Safe Haven Enterprise visa, which he did on 16 February 2016.[2]
[2] See the Departmental file.
In his Safe Haven Enterprise visa application, the applicant stated he was born on [date] in [Town 1] in the Jaffna district of Sri Lanka, is or Tamil ethnicity and the Hindu religion. He stated he has never married or been in a de facto relationship. The applicant indicated that he departed Sri Lanka legally on [date] July 2008, using a Sri Lankan passport issued in Colombo [in] 2007, and travelled to [Country 1]. He indicated he subsequently arrived in Australia in September 2011, aboard the [boat].
In a statutory declaration made on 15 February 2016 included with his Safe Haven Enterprise visa application, the applicant indicated he left Sri Lanka in July 2008 because he was in constant fear of being harmed by the Sri Lankan Army (SLA), the Eelam People’s Democratic Party (EPDP) and the Karuna Group because they all believed he was a member of the Liberation Tigers of Tamil Eelam (LTTE) and he was sure it was only a matter of time before he would be arrested and blamed for something he did not do. He indicated he feared he would be arrested, detained, beaten, tortured and/or killed.
The delegate refused to grant the visa finding the applicant was not of interest to the authorities or Tamil paramilitary groups when he left Sri Lanka, does not have real or perceived links to the LTTE, and given the improved situation in the north and east of the country.
The applicant sought review of this decision on 14 November 2017. He provided the Tribunal with a copy of the delegate’s decision record.
The applicant appeared before the Tribunal on 27 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review. The representative participated in the hearing.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The applicant’s claims from his statutory declaration of 15 February 2016 are summarised as follows:[3]
[3] See the Departmental file.
·He fled Sri Lanka because he had been beaten and detained by the SLA and the police and was frightened that soon he would be killed.
·In around May 2007, due to escalating violence from the civil war, he decided to relocate to his maternal brother’s home in [City 1].
·On or around [date] November 2007, the SLA conducted a round up in [City 1]. He was asked to go to the nearby local temple where SLA officers checked their National Identity cards. His ID card showed he was born in [Town 1], a predominantly Tamil area, which made them suspicious he was an LTTE member. They asked why he had left and come to [City 1].
·He told them he had come to study but was unable to produce study documents. He was accused of intending to plant a bomb at the upcoming Remembrance Day and immediately taken to the local police station by the SLA and [City 1] police.
·Late that evening he was interrogated by the SLA and police. He was beaten. They punched him three times, leaving him with a swollen jaw and a lot of pain the next day.
·On around [November] an order was made for his detention on the basis that there were reasons to suspect he was involved in the commission of offences by aiding and abetting LTTE terrorist activities in the [City 1] area.
·On around [date] November 2007, his aunty made a complaint about his arrest to the Human Rights Commission of Sri Lanka, but nothing happened.
·On around [date] December 2007 he appeared in court with 10 other detainees. He was released as they had information from his home in Jaffna district, but they were still suspicious of him and wanted him to advise them of his movements. He was warned that he would be detained if there was a bomb blast in the area.
·The following day he was visited separately by members of the EPDP and the Karuna Group who questioned him and warned him he had to inform them if he went anywhere.
·Around 2 February 2008, he was rounded up again by the SLA and police and held from morning until evening. He was released after his mother and uncle came and spoke with them. They indicated they were still monitoring him.
·The next day he was again visited, separately, by members of the EPDP and the Karuna group. One of the Karuna Group people told him his birthplace on his ID card will cause him problems in the future and he should leave Sri Lanka.
·From January until June 2008 he would ride his pushbike to work. The SLA would stop him at checkpoints. They said they knew he was LTTE and were watching him, and if there were any bomb blasts they would arrest him. They said things like this to him on about four occasions.
·Around [July] 2008 he decided to leave Sri Lanka owing to the constant fear of harm because the SLA, EPDP and Karuna Group all believed he was an LTTE member. He was sure it was only a matter of time before he would be arrested and blamed for something he did not do.
·He had obtained a passport in [2007] on the advice of his brother, who was working in [Country 2] and said he would let him know if there were any job opportunities there. He departed Sri Lanka for [Country 1].
·He registered with UNHCR in [Country 1] and was assessed to be a refugee but informed they would not be able to resettle him and eventually he would have to return to Sri Lanka.
·He contacted an agent and attempted to leave [Country 1] by boat but was detained by [Country 1] police and held in Deportation centres.
·On one occasion when he contacted his mother she told him his uncle had been arrested and interrogated [in] July 2010 and held overnight. She told him the SLA asked his uncle where he was and whether he was in Sri Lanka. After being beaten his uncle told them he had gone to [Country 1] in 2008. His uncle was told he must inform them when the applicant returns.
·He was released from the Deportation centre in in around February 2011. He called his uncle who told him not to return to Sri Lanka as the authorities were still looking for him and his uncle had only been released on condition that if he returned his uncle would report this to the authorities.
·He subsequently contacted another agent who told him if he got to [Country 3] the agent could get him to Australia. The next day he went to [Country 3] [with] the assistance of an agent. He registered with [UNHCR]. While there he met [a] man who told him of a boat going to Australia and he agreed to take this passage.
·He fears if he returns to Sri Lanka he will be arrested, detained, beaten, tortured and/or killed by the Sri Lankan authorities, particularly the SLA and the police, and by the EPDP, Karuna Group and other paramilitary organisations.
The delegate’s decision record indicates that the applicant expanded upon his claims at an interview with the delegate held on 20 September 2017. Relevant additional matters raised are summarised as follows: [4]
·He was injured in an explosion in 1995 when his village in Jaffna district was under the control of the LTTE. He still has shrapnel fragments in his body.
·The authorities last came to his house looking for him in 2014.
·He used to work for a theatre company which staged political dramas. It was funded by the Tamil Rehabilitation Organisation (TRO) and supported by the LTTE, which the SLA did not like.
·While none of his family members were involved with the LTTE, he was a supporter.
·He was released early from detention in 2007 so they could take revenge on him illegally.
·He continues to fear Tamil paramilitaries including the EPDP and the Karuna Group and will not return until there is a 100 per cent guarantee that he will not be harmed.
[4] See the Departmental file.
The then representative made a post-interview submission dated 26 September 2017. Inter-alia, it was asserted that the applicant’s siblings were able to freely exit and return to Sri Lanka without issue because they do not have the same the same profile and the applicant’s circumstances are different. His work in the [Organisation 1] gives him the profile of a human rights defender. Such people continue to be subjected to harassment by the Sri Lankan intelligence and security services despite the claims of progress and change. He has previously been detained and his scarring could be taken as a conflict related injury.
On 19 May 2022 the current representative provided pre-hearing submissions.[5] These included a ‘Consolidated statement of claims’ by the applicant; a copy of supporting documents provided previously with the Safe Haven Enterprise visa application; and legal submissions.
[5] See the Tribunal file.
Relevant additional matters raised in the consolidated statement of claims are summarised as follows:
·He still has visible scarring on his arm from being hit by shrapnel when his village, which was under LTTE control at the time, was hit by aerial bombing in 1995.
·On the advice of the LTTE, they vacated the village and went to the Vanni area. They returned to their home in 1996 when the SLA has taken over the Jaffna area. The SLA introduced a pass system to control who entered the area. The LTTE no longer had a presence in Jaffna.
·He became involved with [Organisation 1] in 2004 [in] Jaffna. During this time, a cease-fire had been called and there was no active combat. The LTTE re-entered Jaffna and they lived a peaceful life for two years. The LTTE and the SLA worked together to assist people affected by the (December 2004) tsunami. The LTTE was, however, secretly recruiting people and taking them to Vanni for training.
·[Organisation 1] presented dramas to raise awareness of issues such as sexual harassment, missing persons and missing fishermen. They worked on human rights issues such as sexual harassment by the SLA. They advocated against civilians having relations with SLA personnel due to the prevalence of HIV. The theatre received support from the LTTE and funding from the TRO.
·He was threatened by the SLA and told that his tongue would be cut-off if he continued to carry out such work. He was accused of creating antigovernment and pro-LTTE propaganda.
·Hostilities resumed in 2006. He did not feel safe travelling to and from work due to the increased hostilities. He resigned his job in around December 2006 and moved to [City 1] in around May 2007, to study a [course]. He stayed with his maternal uncle. His cousin, [name deleted], was a neighbour.
·Of those detained on around 24 November 2007, he only knew his cousin. He came to know one of the other people named on the list in the court document he provided to the Department, [name deleted], because he got to know him while they were in jail. While in jail he was brutally beaten and the traumatic memories of those days still haunt him.
·When he was last stopped at an SLA checkpoint (between January and July 2008), he was questioned about his drama work and warned about performing in dramas that were politically motivated and defaming of the SLA.
·When he departed Sri Lanka [in] July 2008 the arrangements were looked after by an agent who was paid a lot of money. He was told what counter to go to and told to place money in his passport both in Sri Lanka and in [Country 1]. At that time [Country 1] was returning a lot of Tamils to Sri Lanka.
·While he was in a deportation centre in [Country 1], Sri Lankan Embassy officials visited and tried to convince them to return, guaranteeing their safe return. They took note of those who did not want to return.
Evidence from the hearing
At the start of the hearing the Tribunal advised the applicant that there is a non-disclosure certificate under s 438(1)(b) of the Act on the Departmental file for his case, in relation to information held on the file that the Department believes was given to it in-confidence by a third party. The Tribunal advised that it is satisfied that the document in question was given to the Department in-confidence, noting that it is a document produced by the United Nations High Commissioner for Refugees (UNHCR) and indicates that the information in the document is confidential and privileged. The Tribunal indicated, however, that it was going to tell the applicant the gist of what is in the document, noting that he had contact with UNHCR both in [Country 1] and in [Country 3] when he was in those countries and was interviewed by UNHCR personnel. The Tribunal advised the applicant that the document in question is from an interview he had with UNHCR on 5 February 2009, which is when he was in [Country 1], and is a summary of claims drawn from what he indicated he was concerned about and why he left Sri Lanka. The Tribunal commented that what UNHCR put in the document is consistent with what he has told the Department and the Tribunal, so there is nothing in it that would cause the Tribunal to draw adverse conclusions about his credibility. The applicant indicated he did not have any questions or comments he wished to make about the certificate.
The applicant indicated that his parents and three siblings (two brothers and are sister) are living in Sri Lanka while two brothers are living [overseas]. He indicated his parents and three siblings who are in Sri Lanka are living [in] the Jaffna district. He indicated his parents are not working and have health issues. He indicated his older brother is working [while] his younger brother and his sister are not working and are at home. The applicant indicated his brother in [a country] returns to Sri Lanka to visit the family but the brother in [another country] does not, as he has sought asylum [there].
The applicant indicated he is working in Australia at a [workplace]. He indicated he has been doing that for nearly five years.
The Tribunal noted that it did not wish to talk with the applicant further regarding the injuries he sustained in an aerial bombing attack in 1995, indicating that it seems clear from the submissions provided that he has scarring on his arm and some pieces of shrapnel still in his body from when his village, which at that time was under LTTE control, was bombed by the Sri Lankan air force. The applicant indicated that there was nothing further he wished to tell the Tribunal concerning this incident.

The Tribunal asked the applicant to tell it about how he got involved with [Organisation 1] from 2004-2006, during the ceasefire between the SLA and the LTTE. The applicant indicated that when he was studying he took drama as a subject which resulted in [Organisation 1] calling him and asking if he was interested in joining them, which he did. He said he learnt how to collect data and prepare scripts. He indicated that this was after the 2004 Boxing Day tsunami and at that time there was a ceasefire that went on until December 2006 (with the exception of a two month period when a curfew was imposed) during which time they were able to help the people who were affected by the tsunami. He indicated that NGOs got funding from overseas and the TRO in particular gave them funds and asked them to go to tsunami affected areas, look at the difficulties and problems being experienced by Tamil people in those areas, and develop scripts about their issues. He indicated that they sought to raise awareness and educate the people through drama, for example about things such as HIV and how it spreads. He indicated that the company was active in Jaffna district and also went to [the] Northern Province, and to the capital, Colombo, in the Western Province. He indicated that he also performed in the dramas. By way of example, he indicated that he participated in a drama, the title of which translates as ‘[title], where he acted as [details deleted].
The Tribunal asked the applicant how the authorities reacted when they saw this performance. He said it was during the ceasefire and at that time they could move around without fear and perform. He said on one occasion the performance took place at [a venue], before the leader of the LTTE female wing and the LTTE political spokesperson, and after the performance they shook their hands. The Tribunal commented that its query was about how the authorities reacted to what sounds like pretty confronting material, painting the military in a very bad light, which they may not have been happy about, yet he was able to continue doing this in various locations. The applicant said that, after August 2006, they were stopped at checkpoints and were not allowed to go to the field because there was a group connected to the LTTE that was targeting the security forces with bomb blasts. He said if there was a bomb blast during that time, everyone was stopped and beaten, even if they showed their work identity card and a curfew was imposed and they would get stuck there. Similarly they would stop everyone if there was a convoy of military vehicles – they could be stuck for 2-3 areas until it passed. He said their vehicle had an [Organisation 1] banner displayed and when the authorities saw it they would not allow the vehicle to proceed. The Tribunal asked if this was after the ceasefire broke down. The applicant said it was. The Tribunal commented that its query was about whether they experienced any pushback from the authorities before the ceasefire broke down, given the nature of their material, noting he indicated in his statements that there were both LTTE and SLA personnel in Jaffna during the ceasefire. The applicant said while there were both SLA and LTTE camps, they had full freedom for those two years. He indicated they were acting courageously at that time, depicting true stories of what the SLA had done, with the full support of the LTTE at that time, who were asking them to do these presentations.
The Tribunal observed that, while he had not raised this in his earlier statement, at paragraph 26 of his consolidated statement of claims (which he confirmed was completed on 18 May 2022 rather than 2021), the applicant indicated that, because the theatre received support from the LTTE and funding from the TRO, he was threatened by the SLA and told he would have his tongue cut off if he continued to carry out such work. The Tribunal commented that is why it has been asking him if he experienced any problems with the authorities due to the nature of the dramas they were presenting. The applicant said that, after August 2006, they couldn’t go into the field and do their performances so he stopped doing this work from December 2006 onwards. He added that the LTTE withdrew from Jaffna and went to the Vanni. He then thought it was not safe for him to do that kind of activity so stopped it and went to [City 1] in 2007.
Observing he also indicated at paragraph 26 that, during the course of this employment, he was accused of creating antigovernment and pro-LTTE propaganda, the Tribunal asked the applicant when he was threatened by the SLA and told his tongue would be cut off. The applicant said he has provided photos of himself with his tongue out at the performance and when he was stopped at a checkpoint in November 2006 the SLA personnel showed the photo and put his tongue out saying we’ll cut your tongue off. The Tribunal queried the applicant that he was never detained by the SLA over the period in 2005-2006 while he was doing that work with the [organisation]. The applicant acknowledged that was the case, commenting it was a time of freedom. The Tribunal queried that, apart from the incident at the checkpoint in November 2006, he wasn’t warned by the SLA/authorities that the theatre they were doing was too controversial and he should stop doing it. The applicant said he stopped doing it in December 2006. He confirmed that from then until May 2007 he was at home, preparing to go to [City 1].
The Tribunal observed that at paragraph 27 of his consolidated statement of claims he indicated he did not feel safe travelling at that time, inter-alia, because the SLA was routinely arresting Tamils. The Tribunal again queried the applicant that he was not arrested or detained and questioned by the SLA, while he remained in Jaffa. He said there was a round-up in his village [and] he was taken to a public place and questioned. He said he was held from morning until afternoon and then released. He said such round-ups were common in that area. The Tribunal asked the applicant why he hadn’t mentioned that previously in his submissions. He said it was because it was usual for there to be such round-ups in Jaffna so he only mentioned the [City 1] arrest.
The applicant indicated that when he moved to [City 1] he stayed with his maternal uncle (his mother’s younger brother). He said the house was owned by an older maternal uncle who had moved to [City 1] when he married but was living in [Country 4], and there were two younger maternal uncles living there as well as the wife of the uncle who was in [Country 4]. When asked, the applicant indicated that it was his aunty (the wife of the maternal uncle who is living in [Country 4]), who lodged an appeal with the Sri Lankan Human Rights Commission when he was detained [in] November 2007.
The Tribunal asked the applicant how many people were detained at the time he was rounded-up in [City 1] in November 2007. He said he can’t remember the number but he and his cousin were detained as well as some other people from different areas. The Tribunal asked if they were all detained on the same day. He indicated he was aware of two other people from his area who were taken at the same time as he and his cousin, but other people from other areas were taken at different times. The Tribunal observed that the court document indicates that there were [number] suspects but they were detained from 24-29 November (and he and his cousin [were] detained on the [date] of November). The Tribunal also commented that it is not sure why the delegate thought his cousin wasn’t on the list, when he seems quite clearly to be [there].
The applicant indicated in his statement that he was held for the whole month at [City 1] Police Station. Noting he indicated he was beaten on the first day he was held, the Tribunal asked if he was mistreated at other times over the month he was held. The applicant said he was interrogated for the first three days and faced torture over that time. He said, other than that, if they complained about the scarcity of food and water or the toilet facilities no-one cared. The Tribunal queried why he didn’t state in his original statement that he was interrogated and tortured for the first three days. The applicant said he mentioned this in all his statements. The Tribunal read what was included in the first statement, which indicated he was beaten while being interrogated on the evening of [date] November 2007, but did not mention any subsequent mistreatment. The applicant commented that he was beaten for three days and what is in the statement must be a mistake.
The applicant confirmed that the court ordered his release based on advice from his parents that verified his identity and why he was in [City 1]. He indicated that all the other detainees, including his cousin, also were released. When asked, he indicated that his cousin is now a [Country 5] citizen.
The Tribunal asked the applicant why the EPDP and Karuna Group members came to his home separately to speak with him almost immediately after he was released (in December 2007 and February 2008) after each time he was detained. The applicant said both groups were working with the government and both suspected he was connected to the LTTE and wanted to talk with him about that. When asked, he indicated they likely questioned others who had been released from detention as well.
The Tribunal queried the applicant how he was able to continue working with an NGO over this period if these groups questioned him and warned him not to leave [City 1]. The applicant indicated that when he went to [City 1] he first did a [course], then had an interview in November 2007, the day before he was arrested, to work with [Organisation 2] . He indicated the work had elements of [details deleted]. He said he had he had to make a [number of hour] motorbike ride from [City 1] to get to interior villages.
The Tribunal queried why the authorities, EPDP and Karuna Group would have given him the freedom to do that, rather than put him under curfew, if they suspected him of being LTTE. The applicant said there were three of them, all Tamils, and they were fearful when they went to work, but they had ID cards and were in uniform.
The Tribunal observed that in his first statement the applicant indicated that, on about 4 occasions when he was stopped at checkpoints, SLA personnel said they knew he was LTTE, were watching him, and if there were any bomb blasts they would arrest him. He said every day when he was on his way to the office, he was stopped and questioned at a checkpoint close to the [City 1] Police Station, where he had been detained. In his recent consolidated statement, however, he said was frequently stopped at checkpoints and questioned and told he was being monitored, and on the last occasion was questioned about his drama work and warned about performing in dramas which were politically motivated and defaming of the SLA. The Tribunal queried why he had not mentioned previously that he was stopped frequently (rather than about four times) and why he did not mention previously about being warned about performing in dramas, something he had not been doing since late 2006. The applicant said while they did not perform the dramas in [City 1], the SLA and EPDP would have seen the dramas they performed elsewhere [and] that is why they questioned him. The Tribunal again queried why these people, in mid-2008, would know about his work from 2006 and warn him about it when he wasn’t doing it anymore. The applicant replied that when they saw his national ID card they saw he came from Jaffna and then they ask for his history so he has to tell them everything he has done. He also commented that, while his story is the same, he has told his story to different lawyers who would write it up differently in their statement of his claims.
The Tribunal observed that the applicant had indicated that he obtained a Sri Lankan [in] 2007 at the suggestion of his brother who was living in [Country 2], because his brother indicated there might be work opportunities for him there. The applicant acknowledged this was the case, adding that he also considered the possibility of studying in [Country 4], but was unable to get a visa. The Tribunal noted that while he indicated he lost this passport in [Country 1], he submitted a copy to the Department, which also indicates he obtained a three month visa for [Country 1] issued on 22 July 2008. The Tribunal commented that it appears he left Sri Lanka legally using his own Sri Lankan passport and flew to [Country 1]. The applicant said he did not go to Colombo to get the [Country 1] visa but gave money to an agent who arranged it. He said the agent told him which counter to go to in the airport and to put USD100 in his passport. When asked, he said the agent came to entrance of the airport but did not go to the counter with him. He said he was put in touch with an agent in [Country 1] who told him to put MR1,000 in his passport in [Country 1] and to go to a particular counter. The Tribunal queried the applicant that he had not mentioned in his first statement that he used an agent to depart Sri Lanka. The applicant said his previous lawyer did not ask him about this but his current lawyer did.
The Tribunal asked the applicant why his uncle was detained [in] July 2010. He said his uncle helped him get released when he was detained in November 2007 and lodged the complaint with the Human Rights Commission. He said he left Sri Lanka for [Country 1] in 2008 and his uncle was taken and questioned about him. The Tribunal queried why the Sri Lankan authorities would have waited two years after he left in July 2008 to question his uncle about his whereabouts, noting also that the war ended in May 2009. The applicant said he also is not a criminal so he also wonders why this happened, but they questioned his uncle about his whereabouts and his uncle told them he is not in Sri Lanka.
The Tribunal observed that he also indicated (during the protection visa interview) that the authorities had visited his home in 2014, and asked what happened during that visit. The applicant said he can’t remember telling anyone about a 2014 visit.
The Tribunal asked the applicant about his references to Sri Lankan officials visiting a [Country 1] deportation centre while he was held there and asked what he means by his comment that they took note of those who did not want to return to Sri Lanka, querying how they would have known what his decision was at that time. The applicant said the detainees all unanimously took the decision that they would not go back to Sri Lanka. He added that they were fearful because at the time Mahinda and Gotabaya Rajapaksa were running the country and because of them Tamils faced immense trouble.
The Tribunal asked the applicant what he fears now should he have to return to Sri Lanka, given the passage of time since the war ended in May 2009. The applicant said he is scared that if he returns he will be stopped at the airport and the authorities will get all the details of his history, including that he was arrested and why he left Sri Lanka. The Tribunal asked the applicant why he thought the authorities would be concerned about that, noting that while he was detained for one month on suspicion that he was involved with the LTTE, he was released on the orders of a court. The Tribunal indicated it accepts that it is plausible that he was detained as claimed, noting that he has an ID card that indicates he was born in the same village as [a named LTTE leader] and moved to [City 1] after hostilities resumed in 2007, so might have been someone the authorities wanted to keep an eye on. The Tribunal further noted that, while the authorities were likely keeping an eye on him, he was released, had not done anything and was not ever convicted of any offences or found to be an LTTE terrorist, and the authorities had not acted to cancel his passport or restrict his movements around the [City 1] area, such as confining him to his home in [City 1], suggesting he was not of great concern to them. The applicant commented that he did everything in a state of fear, including his work. He added that in Sri Lanka it is possible to bribe people to be able to do things and that is how he was able to get a passport and leave Sri Lanka, commenting that even LTTE members were able to do this during that time. He said ten staff of the Oxfam NGO in that area were shot dead by unidentified people and while it was claimed the LTTE was responsible, it was done by the SLA. He indicated there was another incident where school students were shot dead at [a] beach.
The applicant said that due to his drama work he was involved in social networking and depicted what Tamil people were going through at that time, which will cause problems for him if he returns and will result in him being monitored. He added that if he returns he will take part in any protests or Martyrs Day commemorations or memorial days for other events which will cause problems for him and lead to him being monitored. The Tribunal queried why he would take part in such events. The applicant said this is in his blood, commenting that these matters stir emotions for Tamils that will be with him until he dies. He said he has seen this problem since 1987 onwards and believes if it were not for the LTTE the Tamil race in Sri Lanka would have been eliminated, so he will always remember the LTTE. He added that the EPDP and Karuna Group committed a lot of atrocities by joining the government and under Mahinda Rajapaksa’s regime Tamils faced genocide. He said even though a lot of people worldwide were watching they did not get any justice for Tamil people. He commented there are a lot of protests going on in Sri Lanka and the Indian intelligence agency (RAW) has said that the LTTE is seeking to re-emerge, and is doing this to make the Sinhalese people support Rajapaksa. The Tribunal queried why the Indian intelligence agency would do that. The applicant said the Indian army helped to defeat the LTTE and want the Sri Lankan public to support a Rajapaksa government.
The Tribunal asked the applicant if he has been involved in any pro-LTTE activity in Australia. The applicant said he was not involved in any protests. He indicated that he takes part in celebrations for Martyrs’ day on [date] November, which remembers the LTTE cadres who fought and died for the Tamil race, memorial day which remembers those killed at the end of the civil war, and Kittu sports day which remembers LTTE Colonel Kittu who died in the Indian Ocean when confronted by the Indian army. He commented that in Melbourne there are fewer Tamils and more Sinhalese people, adding that in Sydney there are protests by Tamils. The applicant commented that while they can celebrate these days freely in Australia they can’t do this in Sri Lanka, where the authorities have destroyed any monuments at places where these events occurred. He added that a monument to Thileepan, who he said undertook a hunger strike against the Indian Peace Keeping Force (IPKF) has been destroyed by authorities. The applicant said that, as a Tamil, he would definitely take part in such activities.
The Tribunal shared with the applicant country information drawn from the most recent DFAT Country Information Report regarding Tamils, LTTE members and supporters and returnees to Sri Lanka,[6] and gave him the opportunity to comment.
[6] DFAT Country Information Report, Sri Lanka, 23 December 2021, sections 3.3-3.13, 5.17-5.20, 5.26 and 5.27-5.32.
The Tribunal observed the reporting indicates that the Sri Lankan government is wanting to ensure there is no re-emergence of the LTTE. DFAT advises 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. DFAT states that Tamils have been arrested in 2021 under the Prevention of Terrorism Act (PTA) for commemoration of the war. DFAT assesses that surveillance of Tamils in the north and east continues, particularly of those associated with politically-sensitive issues. DFAT 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.

DFAT indicates that the Sri Lankan authorities maintain ‘stop’ and ‘watch’ lists. ‘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. Some Tamils with actual or imputed LTTE links continue to report police monitoring and harassment. The DFAT report 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 face no legal barriers to participating in public life, including politics. DFAT assesses that the 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.
In relation to discrimination purely on the basis of Tamil ethnicity, DFAT indicates both that ordinary Tamils in the north and east of Sri Lanka are at low risk of official harassment and that Tamils face a low level risk of societal discrimination based on their ethnicity.
In relation to failed asylum seekers, DFAT indicates that unsuccessful asylum seekers, both those subject to removal or departing voluntarily, will be presented to Sri Lankan Immigration on arrival in Colombo, where they will be interviewed by the Chief Immigration Officer. Those who have departed illegally will be referred to the CID at the airport and charged accordingly. The Tribunal observed that this does not appear to apply in his case as, although he claims to have departed with the assistance of an agent/people smuggler, the records would indicate that he left legally on his own passport with a valid [Country 1] visa and flew to [Country 1], rather than departed Sri Lanka illegally by boat as some have.
DFAT indicates that, of returnees in 2021, it is not aware of any being detained for matters other than illegal departure (such as, due to being former members of the LTTE). For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport. 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, and many more, mostly Tamil, have returned to Sri Lanka from the US, Canada, the UK and other European countries. DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA. 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. 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.
The applicant commented that people arrested in 2008-09 suspected of being LTTE are still in detention. He said the PTA is still place and the authorities can arrest anybody and keep them in prison indefinitely. He said if he returns to Sri Lanka they will question him at the airport and even though he departed with a legal document, it was all arranged by an agent which could be done through bribes. He said they will interview him, get all his history and come to know he was in the jail. The applicant added that, even if they release him, they will continuously monitor him, which makes him fearful. Under the PTA, if anything happens, the army can come. He commented that in Australia people see police, not the army, and they respect them, but in Sri Lanka when they see police or the army it makes them fearful. He said he has seen this since 1987 and because of the war he ‘lost his life’. He added that the Australian government knew that a son of Mahinda Rajapaksa organised the journey for some of the people who came illegally by boat to Christmas Island before 2014. He said it was part of a plan to get rid of Tamils from Sri Lanka, with the involvement of the SLA, commenting that, otherwise, no-one can depart the country illegally. He said the aim is to brand Sri Lanka as a Sinhalese country. He added that the Rajapaksa family has destroyed the unity and link between the Tamil areas of the north and east of Sri Lanka. He also commented that whenever there is a public gathering the army comes with arms because they are scared the LTTE is trying to restart its activities.
In relation to his comment that people arrested in 2008-09 are still in detention, the Tribunal observed that the DFAT report indicates that towards the end of the war in 2009, government security forces arrested and detained a large number of LTTE members. While most were sent to government-run rehabilitation centres, a smaller number were prosecuted through Sri Lanka’s court system. The reporting indicates, however, that after going through a rehabilitation process, the great majority of ‘low-profile’ former LTTE members (which includes 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) have been released following their rehabilitation.[7]
[7] DFAT Country Information report, Sri Lanka, 23 December 2021, sections 3.39-3.57.
The representative asked for two weeks to provide a post hearing submission providing country information in support of the assertion that the applicant’s current political opinion places him at real risk of harm if he was to return to Sri Lanka, and addressing some of the country information presented by the Tribunal at the hearing. The Tribunal agreed to this.
A post-hearing submission was received on 16 June 2022.[8] In the submission the representative stressed that the applicant’s circumstances must be considered cumulatively in assessing the risk of harm he faces should he be returned to Sri Lanka. She asserted that relevant factors include the applicant’s Tamil ethnicity and place of birth; his work with [Organisation 1]; his visible scarring; his previous detention for suspected LTTE terrorist activity; his involvement in commemoration activities in a country with an active Tamil diaspora; and his current political opinion in support of the LTTE and against the Sri Lankan government. Country information from the July 2015 report of the International Truth and Justice Project (ITJP) report into torture and sexual violence in Sri Lanka; and the UK Home Office Country Policy and Information Note regarding Tamil Separatism of June 2021 was cited in support of the contention that the applicant remains at real risk of being detained by Sri Lanka authorities (including under the PTA) and harmed, due to his past, present and likely future activities, including participating in pro-Tamil memorialisation events and events in support of the Tamil fight for self-determination.
[8] See the Tribunal file.
Findings and reasons
Identity
On the basis of the certified copies of his national identity card and birth certificate and uncertified copy of his Sri Lankan passport bio-data page submitted to the Department,[9] and noting the delegate’s findings on this matter, the Tribunal accepts that the applicant is a national of Sri Lanka and that his identity is as claimed. The Tribunal accepts that Sri Lanka is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[9] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to his receiving country of Sri Lanka, there is a real risk he will suffer significant harm.
For the following reasons the Tribunal has concluded that the matter should be remitted for reconsideration.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
While there were some minor inconsistencies in his evidence, the Tribunal found that the applicant’s accounts of his circumstances were broadly consistent and that he is a credible witness.
Assessment of claims
Background
The current DFAT Country Information Report indicates that the LTTE 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. 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.[10]
[10] DFAT Country Information report, Sri Lanka, 23 December 2021, sections 2.2 and 2.48.
In March 2017 the Canadian Immigration and Refugee Board (IRB) reported sources as indicating the EPDP is a pro-government Tamil-based party, initially formed to fight alongside the LTTE, but which later allied itself with the government and operated as a paramilitary unit supporting Sri Lankan security forces against the LTTE. The report cites sources indicating there were close ties between the EPDP and government security forces, commenting that many humanitarian groups refer to the EPDP as one of the most viable paramilitary groups operating with impunity in the country.[11]
[11] Sri Lanka: Treatment of Tamils in society and by authorities; the Eelam People’s Democratic Party (EPDP), including relationship with the Tamil population (2014-February 2017); Immigration and Refugee Board of Canada, 17 March 2017, >
In February 2012, the Canadian Immigration and Refugee Board (IRB) reported sources as indicating that Vinayagamurthi Muralitharan, known as Karuna, was the eastern commander of the LTTE until 2004 when he split from the LTTE and formed the Tamil Makkal Viduthalai Pulikal (TMVP). The United Nation's Integrated Regional Information Networks (IRIN) news agency described the TMVP at the time of its formation as an armed faction, and other sources explain that the TMVP cooperated with the Sri Lankan military to fight the LTTE, helping the military recapture LTTE-controlled areas. The TVMP subsequently became a political party. The report indicates that, according to a 2010 country profile by Freedom House, police powers in the Eastern Province were delegated to TMVP members so that they could "arrest people at will, interrogate them, and transfer them to the police". Freedom House states more generally that progovernment militia groups, some of which [had] been given the power to detain Tamils, often work[ed] with the regular security forces to arrest and torture suspects before releasing them, killing them, or turning them over to the police for further action.[12]
Assessment
[12] Sri Lanka: 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; Immigration and Refugee Board of Canada, 17 February 2012, >
The applicant is a [age] year old ethnic Tamil male of the Hindu faith. The Tribunal accepts that he was born in [a] village in the Jaffna District of Sri Lanka’s Northern [Province].
The Tribunal accepts that the applicant has visible scarring on his arm, and some pieces of shrapnel still in his body, from when his village, at that time under the control of the LTTE, was subjected to aerial bombing by the Sri Lankan air force in 1995. The Tribunal accepts that this visible scarring may attract the interest of the Sri Lankan authorities and result in the applicant being questioned about activities that led to the scarring.
The Tribunal accepts that the applicant was involved with [Organisation 1] from late 2004 until December 2006, when there was a ceasefire between the SLA and the LTTE, and that this group was supported by the LTTE and funded by the TRO. The Tribunal accepts that over this time the applicant was involved in researching, scripting and performing dramas based on the experiences of Tamils over the preceding years, and which touched on sensitive issues including sexual harassment and assault of Tamil civilians by SLA personnel. The Tribunal accepts that he was able to participate in dramas regarding sensitive issues at that time because there was a ceasefire in place and the LTTE had an open presence in the Jaffna district. The Tribunal accepts his evidence that the Sri Lankan authorities have records of his involvement in this work, and that on one occasion he was threatened that his tongue would be cut-off if he continued to carry out such work. The Tribunal accepts that the applicant’s past work with [Organisation 1] may cause him to be seen as a human rights activist and to have been associated with the LTTE.
The Tribunal accepts that, when the ceasefire broke down and hostilities resumed in late 2006 the applicant decided to stop this work and leave his home area in the Jaffna district due to concerns for his safety, and in May 2007 he moved to [City 1] when he lived with maternal uncles while undertaking a short course [and] subsequently was employed with [Organisation 2]. The Tribunal considers that may support a view that he is a human rights activist.
The Tribunal accepts that the applicant was detained [in] November 2007 (along with his cousin) as part of a broader round-up of Tamil males in a combined police, army and navy operation on suspicion of being involved in LTTE terrorist activities. The Tribunal accepts that the was beaten during a period when he was being interrogated and that, after a formal detention order was made [in] November 2007, he was held at [City 1] Police Station for a month. The Tribunal finds the evidence provided by the applicant indicates that the applicant and [number of] others, including his cousin, were released [on] [date] December 2007, at the request of the Chief Inspector Police, [City 1], on the basis that no legal action was to be filed against them.
The Tribunal accepts as plausible the applicant’s claims that when he was released, he was told he would be detained again if there was a bomb blast in the [City 1] area.
The Tribunal also accepts as plausible that, very shortly after his release, the applicant was visited separately by member of the EPDP and members of the Karuna group who questioned him regarding whether he was an LTTE member and warned him that they wanted to be appraised of his movements.
The Tribunal accepts the applicant was detained again in a joint police/SLA operation for part of the day on 2 February 2008, and that, after his release, was again visited and questioned separately by EPDP and Karuna group members. The Tribunal accepts as plausible that he was told by a Karuna group member that his national ID card, which shows he was born in the same village as [an LTTE leader], would continue to cause problems for him and that he should leave Sri Lanka.
The Tribunal accepts that the applicant was harassed by the SLA at checkpoints, told that they knew he was LTTE and were watching him, and that he would be detained if there were any incidents in the [City 1] area. The Tribunal accepts that this, along with his previous detentions, the mistreated he suffered when first detained, and the interest in him shown by the EPDP and Karuna Group, would have caused the applicant to be extremely fearful. The Tribunal accepts the applicant’s evidence he felt he had to leave Sri Lanka or he inevitably would be detained again for something he was not involved in and could be tortured and killed.
While the applicant had a valid Sri Lankan passport the Tribunal accepts his more recent evidence that he departed Sri Lanka in late July 2008 with the assistance of an agent, who obtained his [Country 1] visa and who sought to ensure he would not experience any problems departing Sri Lanka through Colombo airport or entering [Country 1]. The Tribunal considers, however, that this would be recorded in relevant systems as a legal departure from Sri Lanka.
The Tribunal accepts the applicant’s evidence that his uncle was detained briefly in July 2010 and questioned regarding the applicant’s whereabouts. The Tribunal accepts that the authorities retained suspicions regarding the applicant possibly having links to the LTTE and wished to monitor him closely, and retained an interest in his whereabouts. The Tribunal considers it plausible that his uncle was beaten and warned to advise the authorities when the applicant returned to Sri Lanka, because they wished to speak with him. The Tribunal finds it plausible that the authorities would still wish to speak with the applicant about his departure from Sri Lanka in July 2008 and his activities in Australia since that time.

[2022] AATA 3781

2 September 2022

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