1728790 (Refugee)

[2018] AATA 5163

1728790 (Refugee) [2018] AATA 5163 (18 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1728790

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Peter Vlahos

DATE:18 July 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 July 2018 at 6:49am

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion – Liberation Tigers of Tamil Eelam agent – particular social group – returnee from the West – failed asylum seeker – land dispute – illegal departure – fear of torture – arbitrary detention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 91R, 499
Migration Regulations 1994, Schedule 2

CASES

Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 22 September 2015. The delegate refused to grant the visa on 15 March 2017.

3. On 7 June 2017, the Tribunal (differently constituted) affirmed the decision under review. [In] November 2017 the Federal Circuit Court ordered, by consent, that a Writ of Certiorari be issued quashing the Tribunal’s decision and a Writ of Mandamus issue directed to the Tribunal requiring it to determine the application made to it for review of the decision of the delegate to refuse the applicant’s application for a Protection visa according to law.

4. The applicant appeared via video link from [location] before the Tribunal on 19 April 2018 to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in both the Tamil and English languages.

6. The applicant was also represented at the hearing by his legal representative and registered migration agent.

   CRITERIA FOR A PROTECTION VISA

7. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

8. 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.

9. 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 themself 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).

10. 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.  

11. 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

12. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    INTRODUCTION

13. The applicant is a citizen of Sri Lanka. His ethnicity is Tamil and he comes from [City 1] in the Eastern Province of Sri Lanka. He has said that in 1990 he and his family were removed to Vavuniya and that in 1998 or 1999 he was abducted by the Liberation Tigers of Tamil Eelan (‘LTTE’) who wanted him to join their movement. He has said that he refused and he escaped their custody and sought refuge in India in 1999. The applicant has said that he remained in India, in [State 1], until 2002 when he went to [Country 1] travelling on an Indian passport. While in [Country 1] the applicant was convicted of [specified crimes] and after serving a gaol sentence he was deported to India in [year]. The applicant said that he remained in India until August 2009 and during this period he assisted an officer of the LTTE named [Leader A] who was smuggling materials from India to the LTTE in Sri Lanka.

14. The applicant has said that he returned to Sri Lanka with his [specified relative] in August 2009 because he wanted to see his family and because he wanted to recover his family’s residence in [City 1] and farm land which he has claimed had been taken by a Sinhalese family. He claims that [this relative] was killed by the Sinhalese and that he himself left Sri Lanka again in October 2010, travelling to [another country] where he boarded the boat which brought him to Australia in November 2010. In a submission to the Department dated 4 October 2016 the applicant’s representatives submitted that the applicant feared harm for reasons of his race (being a Tamil), his imputed political opinion, and his membership of a particular social group as a ‘returnee from the West/failed asylum seeker.’

15. The issues in this review are whether the applicant is a refugee and, if not, whether there are substantial grounds for believing that, as a necessary consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

    EVIDENCE AT THE HEARING

16. The applicant confirmed for the Tribunal that he arrived [in Australia] by boat [in] November 2010. The applicant had, prior to arriving in Australia travelled to [another country] and it was from [there] that he travelled by boat to [Australia].

17. The applicant also confirmed, that he originated from the North-East Province of Sri Lanka and that he had lived since his birth in the town of [City 1].

18. The Tribunal was told that the applicant he had lost contact with his family. According to the applicant, his ‘family’ consisted of [specified family members]. He also said that he did not know where his family was currently living in Sri Lanka and if they were still alive. The applicant had no definite information about the current whereabouts of his father. From information he was able to receive from his sources in the past, his father had become a “religious person.” The applicant told the Tribunal that when he last talked to his sister in 2012 or 2013, she informed him about his father’s fate.

19. The last time the applicant spoke with his sister was in 2017 when he was appealing his protection visa application to this Tribunal.

    Has the applicant’s family had any problems with the authorities while he has been in Australia?

20. The applicant said that he had not talked with his family ‘properly’ to ascertain how they are living in his absence. The applicant went on to explain to the Tribunal that the family [he believed] thought of him as a “….unwanted child.” He believed that in his “absence” from the family for the “….past twenty years…” had made that attitude towards him a very real possibility. The Tribunal asked the applicant to elaborate on these “beliefs” about his family’s attitudes towards him. The applicant’s response was to tell the Tribunal that – his separation from his family while he was in India and after because he feared for his life while living in Sri Lanka contributed to this feeling he had developed the belief that his family thought he was their “….unwanted child.”

    The issue of the LTTE and how it affected the applicant and his family

21. The applicant said that he had lived together with his family in peace in [City 1] from the time he was born in [year] until 1990. In that period, the applicant attended to his studies and he described himself as a “…a good child….” However, because of intercommunal and racial problems which were developing in this period and which later brought about the civil war, the family was forced to move to [Town 1].  He described the area where this town was located as a pre-dominantly “….Tamil area…” and a “….protected area…” Even though the applicant and his family were “…safe….” there was no work for his father and this forced a change of lifestyle for the entire family. His father and family had to produce their own food in order to survive. This “….change….” caused the applicant’s father’s attitude to change and this caused “….tensions….” to surface within the applicant’s family. However, regardless of this problem, the applicant told the Tribunal that the family was “….managing….” as best it could to “….live….”

    When did the Tamil Tigers show an interest in the applicant’s family?

22. The applicant recalled, that when they were living in  [Town 1],  was in an “….army controlled area….” but the army’s effective control over the area was only on one side of the road which divided the district while on the other side of the road, the Tamil Tigers LTTE was in control. The applicant stated that the family was relocated there by the “army”. The town they lived in was very large and as the applicant recalled there was “no fences in place” or “any walls” which retrained the movement of people living within the limits of the town but even so, the army exercised its control but could not be effective in protecting the applicant and his family.

    The applicant’s abduction by the LTTE

23. The applicant said that the army did not exercise effective control over the area. The LTTE was at time able and did challenge the army’s control and on many occasions the area suffered from repeated LTTE-led incursions. The applicant told the Tribunal, the LTTE combatants would raid the town, take what they could (food and money) and even forcibly recruit persons to their cause and then would leave allowing the army to re-occupy the raided area and consequently impose its will on the people again. It was during such a raid, the applicant recalled, the LTTE “….came to our place….” with the intention “….to attack us….” and this was also repeated with other homes in the immediate area. At the same time, the LTTE guerrilla fighters would select young Tamil boys of similar ages and take them by force with them for training and indoctrination in the cause of the LTTE. The applicant remembered that on one such raid they [the LTTE] “….came to our street and took 10-15 people [and]…. I was one of them.…”

24. The applicant went on to say “….that on that day I was sleeping….” the LTTE guerrilla fighters came into his room and “….took me away….” Following his forced removal from his parent’s home the applicant was taken to a “….hospital….” and was “….locked up in a room….” He recalls being under constant surveillance by the LTTE guards. The applicant also remembered that there were “….different groups….” or “….battalions….” there. Then a “….leader….” would address the detainees/forced young recruits and provide them with the designated military training. The applicant’ detention with the LTTE lasted for ten days.

25. The Tribunal was told that the applicant pleaded with his LTTE- captors to allow him to return to his family but his request to be returned to his was refused. Thereafter, the applicant and other detainees were subjected to a strict regime of indoctrination by the LTTE and over a period of time, the opinions of the captives which included the applicant was (according to the applicant) swayed in favour of the LTTE. The applicant told the Tribunal that he and others had been “….brainwashed….” in the LTTE’s favour.

26. Most of the captives at this LTTE camp were [according to the applicant] “….young boys….” The applicant recalled that he had abducted in the latter part of 1998. He also said the LTTE wanted his father to join them or he refused their demands and in return the LTTE demanded from him a payment of money. The applicant explained that the LTTE (at that time) through its extensive contacts had an understanding of what people were earning within the district and wanted that income for itself so as to fund their military operations. According to the applicant if a person refused to provide a sum of money when demanded by the LTTE, then the LTTE would force a family to provide them with a “….child….”. The applicant’s father was old and unable to provide money so the applicant was “….taken….” by the LTTE.

27. Following the applicant’s abduction by the LTTE and his brief stay in a hospital building, the applicant was taken to a “….big camp….” which comprised of “…..6 to 7 large huts….” and there he and others in a similar fate were trained at length by the LTTE. This training was described to the Tribunal as comprising of a rigorous physical training routine which lasted for fifteen days. In that period of time, the applicant said that he was always was reviewing his surroundings in order to find a way to “….escape….” from the LTTE.  In time, an opportunity presented itself to the applicant on a “….night which had a full moon…..” He left the camp and proceeded on foot and then by being a passenger on a lorry truck for a distance of approximately [distance] to the city of Kandi. Once in Kandi, he went to find a “….friend of his father’s….” and contacted through this friend was able to contact his father and to tell him about his circumstances. In turn, the applicant’s father “….borrowed some money from his friends….” to enable the applicant to escape Sri Lanka and go to the safety of India.

28. When in India, [the applicant could not remember the actual date] the applicant met another “….friend of his father….” – [named] who was a “….[merchant]….” The applicant lived with his father’s friend for a period of time. While in the Indian state of Tamil Nadu, the applicant stated that he did not register his presence as he was required to do so by the Indian authorities because he feared that his details and whereabouts would be passed on to the Sri Lankan security authorities by the Indian state government officials.

    What did the applicant do while living in India?

29. After staying in Tamil Nadu with his father’s friend, the father’s friend told the applicant that it would be in his interest to “leave” Tamil Nadu state and to go to “[State 1]” where it was safer for the applicant to live. The Tribunal was told that the applicant followed his father’s friend’s advice and went to [State 1]. In [State 1], the applicant worked in a [business] which was owned by “one of his relatives.” A period of months went by and according to the applicant he again became concerned about the Indian government’s attitude towards Sri Lankan Tamils.  He also had thoughts about his life in India and began to question whether he would remain in India on a permanent basis or re-consider his options for his future. He also maintained fears that he could “die” if he was to be returned to Sri Lanka. The applicant approached persons (he did not identify by name) but were described to the Tribunal as “relatives of his mother and father” who provided him with money in order to engage an “agent” in India to organise his departure from India to another country. His attempts to secure a safe passage to ‘[specified countries]’ failed (it was according to the applicant difficult to go to [those countries] on an “Indian”-issued passport). He then organised for himself an ‘Indian passport’ via “his agent” and a ‘visa’ to [Country 1]. The Tribunal was told that the applicant left for [Country 1] in 2002 in the May or June (he was not sure of the actual date).

30. The applicant had been advised by his agent that once in [Country 1], he (the agent) would make further arrangements but the agent was arrested while in [another country] and the applicant remained in [Country 1]. Subsequently, the applicant was arrested in [Country 1] for ‘overstaying’ without a proper visa and then was released. While waiting for his time to depart, the applicant stated that he worked on a casual basis in order to save money for his future needs. The Tribunal was told that the applicant in this period managed to save a considerable sum of money. However, before he could organise himself for departure from [Country 1], the applicant was arrested, tried and jailed by the [Country 1] authorities for ‘[a crime]’.  As a result of this incident the applicant remained in a [Country 1] prison for a period of [number] years – [specified year range]. The applicant told the Tribunal that he had been “accused” and “jailed” for committing an “[the crime]” on another person.

    Did the applicant travel back to Sri Lanka after living for a period of time in [Country 1]? 

31. The applicant told the Tribunal that he returned to Kandi, in August 2009. He also told the Tribunal that he lived at six or seven different places in order to avoid any detection from the Sri Lankan police or security police and in total he remained in Sri Lanka for ten months. The applicant also told the Tribunal that he had not registered his name on any official register and this enabled him to move freely wherever he chose to go without being detected by the authorities.

    Why did the applicant return to Sri Lanka?

32. The applicant told the Tribunal that he wanted to see his family. After a considerable period away from his home, he wanted to be with his family. He understood the risks he was taking but he was willing to take that risk. He also thought it possible (at the time) to contemplate bring his family to live in Kandi. Even though the applicant returned to Sri Lanka with the intention to see his family, he was not successful in doing so because of the state of affairs in that country at that time. Movements by any person around the country were difficult and full of hazards. After trying to make contact proved to be difficult for the applicant, he decided to leave for India. The applicant could not sustain the pressures of always living a ‘life of hiding’ while being in Sri Lanka.

    The applicant’s relationship with the LTTE [commander]

1. The applicant met the LTTE [commander] in [year] after he had returned from [Country 1] to India. The applicant chose to return to India because at that time he was on his own and felt secure being in India. He had decided for himself that he should remain in India “not to surrender” to the Sri Lankan authorities but to carry on with the “fight.” Indeed, that was the reason the applicant went find the [commander] to assist him but also to receive from him “protection.” The applicant received training and assistance. In time, the applicant was provided with a vehicle and would (for the [commander]) go where he was told to “pick up and distribute goods, materials” and “money.” The types of “goods” or “materials” the applicant distributed were “medicines” for LTTE combatants fighting in Sri Lanka. He also “distributed” materials used in the manufacture of weapons and weapons for the LTTE.

2. The applicant was asked whether he did any other work for the [commander]. The Tribunal was told that the he did no other work for the [commander] except to transport medicines and materials as he was required to do.

3. According to the applicant his service for the LTTE [commander] commenced in [year] and ended in 2010 when he returned to Sri Lanka.

   Property dispute with the Singhalese

4. The applicant recalled that in 2002, his mother and father returned to [Town 1] from [City 1]. In that year a peace had been declared between the LTTE and Sri Lankan army. At that time, the applicant was still in India. The applicant went on to recall that with assistance of relatives [overseas], the family (his father) was able to re-establish a livelihood by farming. This did not compensate for the loss of the family’s property which (according to the applicant) had been illegally misappropriated by a Singhalese family by the use of fraudulent documents. The applicant went on to recall, that this land had been purchased by his father [decades earlier], but the documentation produced by the Singhalese (which were described and fraudulent) recorded them as the legal owners of the land for a continuous period since [an earlier year].

5. The applicant stated that his father had sought the help of the local courts but without any satisfactory results and as a result of this dispute. The applicant told the Tribunal that the Singhalese had influence through their family with the local police and little could be achieved in the form of redress and justice. As a result of this dispute and the family’s resistance to the loss of their land interest – the applicant’s father feared that he and the family would be harassed by the Singhalese and fled with the applicant to India (in [year]). The applicant recalled that his father and he fled to India while his mother chose to stay in Sri Lanka but with her family.

6. The applicant was asked if he could recall anything further happening as a result of the property dispute which impacted on him and his family. The Tribunal was told that the applicant could not recall anything because at that time [year] onwards he was not in touch with his family because he was in jail in [Country 1]. As far as the applicant knew, the Singhalese family was still in possession of their home and land.

   Why is the applicant afraid to return to Sri Lanka?

7. The applicant recalled a difficult set of circumstances which engulfed his life since 1998. He told the Tribunal that his previous history would be widely known and the fact he was living for a period of time in immigration detention [in Australia] would also become a known fact to the authorities in Sri Lanka and this too would create its own set of issues for the applicant if he returned to Sri Lanka. Indeed, all the people in his village, he believed knew that he was taken by the LTTE. This “news” of his being in a LTTE recruitment camp and then in Australian immigration detention would “widely spread” and would (the applicant feared) be already known by the Sri Lankan army.

8. The applicant went on to explain to the Tribunal that because of his past there would be files that would be in the possession of the Sri Lankan army which recorded and identified him as having been “abducted by the LTTE”. He was at pains to explain that he “never wanted to be in the movement” – the LTTE that that was the reason he “escaped to India” and then to “[Country 1]”. The applicant fears that the authorities will consider him as a “member of the LTTE”.  He fears being questioned and being forced to answer questions as to “where he (the applicant) was all this time….”by the security forces and the army. The applicant believed that he could not tell “all the truths to the arm…” – especially what help he provided the LTTE while living in India. Indeed, the applicant believed that if he told the authorities on his return about his activities while in India – his past activities would “go against him” when being assessed by the authorities.

   The Tribunal discussed the following country information with the applicant:

9. The Tribunal outlined to the applicant the most recent information regarding the situation for persons who had departed Sri Lanka illegally by boat. According to the Department of Foreign Affairs and Trade (‘DFAT’) Country Report, returnees were stopped at the airport and questioned by the police and other authorities. If a person was suspected of an illegal departure, they were charged under the Immigrants and Emigrants Act. Most people would be photographed and have their fingerprints taken and then be transferred to the Magistrates Court. This generally occurred within 24 hours although if a magistrate was unavailable within this time, for example, because a person had returned on a weekend or public holiday, the returnee may be detained at Negombo Prison until they were able to appear before a magistrate. Sri Lanka’s Attorney General’s Department told DFAT that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence. Fines had been given and the amount varied on a case by case basis. Generally speaking, the fines were relatively small and were capable of being paid in instalments. If a person pleaded guilty they would be fined and allowed to go. If a person pleaded not guilty they would usually be given bail on a personal surety or sometimes with a family member acting as guarantor. There were rarely any conditions attached to bail. The person would only need to return to court when the case was being heard. There was no general requirement to report to police or police stations between hearings. Passengers were generally viewed as victims of people smuggling as opposed to the persons who were involved organising the people smuggling.

   The Current Country information re: Sri Lanka

10. The Tribunal then discussed the following country information. Particular focus was placed on the DFAT Country Information Report - Sri Lanka, dated 24 January 2017:

    Reconciliation

    2.29 The Sirisena Government has prioritised human rights and reconciliation and has made significant progress, including: replacing military governors in the Northern and Eastern Provinces with civilians; returning some of the land held by the military since the conflict-era back to its former owners; releasing some individuals detained under the Prevention of Terrorism Act (PTA) and committing to reform the PTA; and engaging constructively with the United Nations. The Government also established an Office of National Unity and Reconciliation (ONUR) to develop a national policy on reconciliation.

    2.30 Symbolic changes have also contributed to a more positive outlook for reconciliation. The 2015 Independence Day ceremony was attended by Tamil National Alliance (TNA) leaders for the first time since 1972 and President Sirisena delivered a trilingual Declaration for Peace in Sinhala, Tamil and English, paying respect to all victims who had lost their lives during the civil conflict (a significant step toward acknowledging losses on both sides). At the 2016 Independence Day ceremony the national anthem was sung in Tamil, as well as Sinhala. In 2015, the Government changed the name of the day commemorating the end of the conflict (held in May) from ‘Victory Day’ to ‘War Heroes Remembrance Day’ and for the first time gave official approval for memorial events to take place in the north and east.

    2.31In September 2015, the report of the UN’s Office of the High Commissioner for Human Rights investigation into Sri Lanka (OISL) found that grave violations, including possible war crimes and crimes against humanity, were likely committed by both sides during the civil conflict. In response, the Sri Lankan Government co-sponsored a resolution in the UN Human Rights Council which, while recognising the progress Sri Lanka had made on reconciliation, committed Sri Lanka to implementing a range of transitional justice mechanisms and reconciliation projects.

    2.32On 18 December 2015, the Sri Lankan Cabinet approved the formation of the Secretariat for Coordinating Reconciliation Mechanisms within the Prime Minister’s Office to oversee mechanisms for advancing truth, justice and reconciliation in Sri Lanka; an Office on Missing Persons; an Office for Reparations; a Truth, Justice, Reconciliation and Non-Recurrence Commission; and a Judicial Mechanism with a Special Counsel. In January 2016, Prime Minister Wickremesinghe appointed an eleven-member Consultation Task Force on Reconciliation Mechanisms to conduct public consultations on the design of the four mechanisms, with a final report to the President expected in 2017. DFAT assesses that if implemented effectively these mechanisms will provide a platform to achieve genuine reconciliation.

    2.33On 11 August 2016, the Sri Lankan Parliament passed a Bill to establish the Office on Missing Persons (OMP), the first permanent and independent body established to address the issue of missing persons in Sri Lanka. Members of the OMP are appointed by the President on the recommendation of the Constitutional Council. The OMP has the power to investigate disappearances and trace missing persons, including the power to search detention centres, obtain documents and summon people within Sri Lanka. The OMP has a mandate to investigate cases that occurred in the lead-up to and during the civil conflict and in the post-conflict period when Rajapaksa was still President (May 2009 - January 2015). It will also cover earlier periods of violent political disturbance in the 1970s and 1980s. The OMP does not have a prosecutorial mandate. The previous Presidential Commission to Investigate into Complaints Regarding Missing Persons collected over 23,000 cases during its term; the volume of cases submitted to the OMP would likely exceed this amount. At the time of writing, the OMP was still being established and had not yet begun staff recruitment. The OMP does not have a pre-determined end date and is expected to take years to complete its work

    HUMAN RIGHTS FRAMEWORK

    2.34Sri Lanka is a party to all major international human rights conventions, having ratified the Convention on the Elimination of all Forms of Racial Discrimination, the International Covenant on Civil and Political Rights (and its First Optional Protocol), the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women (and its Optional Protocol), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, the Convention on the Rights of the Child (and its Optional Protocols), the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, the International Convention for the Protection of all Persons from Enforced Disappearance, and the Convention on the Rights of Persons with Disabilities. Many international human rights are guaranteed in Sri Lanka’s Constitution under Chapter 3 on ‘Fundamental rights’.

    National Human Rights Institution

    2.35 The Human Rights Commission of Sri Lanka (HRCSL) is the national human rights institution, is headquartered in Colombo and has 10 field offices. Citizens can petition the HRCSL about breaches of their fundamental rights. The HRCSL maintains comprehensive inquiry and investigation processes for matters involving executive or administrative action. It also publishes annual reports on the number of complaints received and resolved. The majority of complaints received refer to alleged discrimination in school admissions and public sector promotions but can include complaints about torture, disappearances, extra-judicial killings, deaths in custody and arrest and detention practices.

    2.36The HRCSL was granted a Status B accreditation in March 2009 by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights, meaning it is not fully compliant with the ‘Paris Principles’ (Principles Relating to the Status of National Institutions). The capacity of the HRCSL has improved since new commissioners, drawn from legal practice, academia and UN backgrounds, were appointed in October 2015. DFAT considers these commissioners operate with the independence required to undertake their mandate. The new commissioners are effective and the HRCSL has sufficient powers. But the Commission continues to suffer from a lack of staff. In a statement following his mission to Sri Lanka in early 2016, the United Nations High Commissioner for Human Rights noted that ‘one of the most important achievements over the past year has been the restoration of the legitimacy and independence of Sri Lanka’s Human Rights Commission’…..

    Security situation in the North and East

    2.39The security situation in the north and east has improved dramatically since the end of the conflict, with greater freedom of movement and a reduction in the military’s involvement in civilian life. However, military and security forces maintain a significant presence in the Northern Province, including in Mannar, Vavuniya, Kilinochchi, Mullaitivu and Jaffna Districts. According to the Government of Sri Lanka, the number of personnel has reduced by approximately 30 per cent since the end of the conflict, but there may be up to 70,000 Sri Lankan Defence Force troops and up to 15,000 civilian police still stationed in the north. In September 2016, DFAT observed a low-level, visible military presence in the north, with most of the military confined to the Security Forces Cantonment on Jaffna Peninsula (also known as ‘High Security Zones’) or the smaller surrounding military camps. The High Security Zones occupy fertile land and are well-established, with permanent structures and well-tended agricultural land. The Government has begun reducing High Security Zones in the Northern Province and to date; over 1,000 acres of land have been released in Jaffna (not just in the High Security Zones). Military checkpoints on major roads leading to the north and east were removed in 2015 and there are no restrictions on travelling to the north and east. ….

    Race/Nationality

    3.4DFAT assesses that Sri Lankans of all backgrounds generally have a low risk of experiencing official discrimination as there are currently no official laws or policies that discriminate on the basis of ethnicity, including in relation to access to education, employment or access to housing. However, DFAT further assesses that societal discrimination on the basis of ethnicity can occur (see sections on individual ethnic groups below) …..

    Monitoring, harassment, arrest and detention

    3.8During the civil conflict more Tamils were detained under emergency regulations and the Prevention of Terrorism Act (PTA) than any other ethnic group. Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested and/or detained by security forces during the conflict and the Rajapaksa Government. While this was primarily due to LTTE members and supporters being almost entirely Tamil, there were also likely instances of discrimination in the application of these laws, with LTTE support at times imputed on the basis of ethnicity (see ‘Political Opinion’ below). Since 2015 the Sirisena Government has reviewed and released some PTA detainees, including Tamils. DFAT assesses that there are currently fewer individuals detained under the PTA than there were during the conflict.

    3.9DFAT assesses that monitoring and harassment of Tamils in day-to-day life has decreased significantly under the Sirisena Government. The Sri Lankan police are now responsible for civil affairs across Sri Lanka. While a sizeable (and largely idle) military presence remains in the north and east, armed forces personnel are generally restricted to their barracks. While some cases of monitoring continue to be reported, such as the military or police observing public gatherings or NGO forums, the overall prevalence of monitoring has greatly reduced. Members of the Tamil community have also described a positive shift in the nature of interactions with authorities; they feel able to question the motives of, or object to, monitoring or observation activities. …..

    Liberation Tigers of Tamil Eelam (LTTE)

    3.27At its peak in 2004, the LTTE had an armed force of approximately 18,000 combatants. The LTTE had an intelligence wing, a political wing and an extensive administrative structure based in its de-facto capital in Kilinochchi in north-east Sri Lanka. The majority-Tamil civilian populations of the areas controlled by the LTTE were required to interact with the LTTE as a matter of course. The LTTE was supported by foreign funding and both voluntary and forced recruitment of Tamils.

    3.28Towards the end of the conflict, a large number of LTTE members were arrested and detained by Government security forces following their surrender or capture. The majority of those arrested were sent to Government-run rehabilitation centres. A smaller number were prosecuted through Sri Lanka’s court system. Aside from those arrested, many civilians were also questioned or monitored for any possible LTTE activity and any form of civil resistance or anti-Government sentiment. Although not officially mandated to do so, in many areas the military took a visible and active role in aspects of civilian life. The Sirisena Government has publicly claimed that military involvement in civilian activities has ceased.

    3.29Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country. According to expert testimony provided to a hearing of the UK’s Upper Tribunal on Immigration and Asylum, Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases. ‘Stop’ lists include names of those individuals that have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals that the Sri Lankan security services consider to be of interest, including due to separatist or criminal activities. Those on a watch list are not likely to be detained, although there have been some media reports claiming that individuals, mostly Tamils, travelling from the United Kingdom have been detained on arrival at the airport. DFAT has not been able to verify these reports but notes that those on a watch list are likely to be monitored.

    3.30There are no legal barriers to former LTTE members participating in public life, including in politics. In the August 2015 parliamentary elections, the TNA denied ex-LTTE members from running on their ticket, but ex-combatants established the Crusaders for Democracy group and ran for election. While they did not win any seats their participation was demonstrative of an open, democratic process.

    3.31DFAT assesses that the LTTE no longer exists as an organised force in Sri Lanka. Any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans, including those returning from abroad. DFAT further assesses that there has been an overall decrease in monitoring in the north and east (see paragraph 3.9). Under Sirisena, the Sri Lankan Government has demonstrated a commitment to easing restrictions, reviewing its United Nations Security Council Resolution 1373 list in November 2015 and lifting its terrorist listing for eight Tamil diaspora organisations and 269 individuals in November 2015. However, high profile individuals with links to the LTTE would continue to be of interest to Sri Lankan authorities and may be subjected to monitoring. ….

    Imputed membership of the Liberation Tigers of Tamil Eelam (LTTE)

    3.32The most recent UNHCR Eligibility Guidelines for Sri Lanka (December 2012) note that a person’s real or perceived links with the LTTE may give rise to a need for international refugee protection. Although the nature of these links can vary, this may include:

    §persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;

    §former LTTE combatants or ‘cadres’;

    §former LTTE combatants or ‘cadres’ who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, ‘computer branch’ or media (newspaper and radio);

    §former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;

    §LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;

    §persons with family links or who are dependent on or otherwise closely related to persons with the above profiles. …..

    Family members

    3.47DFAT is aware of but cannot verify reports where close relatives claim to have been arrested and detained because of their family connections with former LTTE members. DFAT assesses that close relatives of high-profile former LTTE members who remain wanted by Sri Lankan authorities may be subject to monitoring. …

    Offences under the Immigrants and Emigrants Act

    5.21Most Sri Lankan returnees, including those from Australia, are questioned (usually at the airport) upon return and, where an illegal departure from Sri Lanka is suspected, they can be charged under the I&E Act. DFAT understands that in most cases, these individuals have been arrested by the police at Colombo’s Bandaranaike International Airport. As part of this process, most returnees will have their fingerprints taken and be photographed. At the earliest available opportunity after investigations are completed, the individual would be transported by police to the closest Magistrate’s Court, after which custody and responsibility for the individual shifts to the courts or prison services. The Magistrate then makes a determination as to the next steps for each individual. Those who have been arrested can remain in police custody at the Criminal Investigation Department’s Airport Office for up to 24 hours after arrival. Should a magistrate not be available before this time–for example, because of a weekend or public holiday–those charged may be held at a nearby prison.

    5.22According to the Sri Lankan Attorney-General’s Department, which is responsible for the conduct of prosecutions, no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines had been issued to act as a deterrent towards departing illegally in the future. Fine amounts vary on a case-by-case basis (but can be up to 200,000 Sri Lankan rupees / AUD 2,000) and can be paid by instalment. If a person pleads guilty, they will be fined (which they can pay by instalment) and are then free to go. In most cases where a returnee pleads not guilty, returnees are immediately granted bail by the magistrate on the basis of personal surety or they may be required to have a family member act as guarantor. Where a guarantor is required, returnees may sometimes need to wait until a family member comes to court to collect them. There are rarely any conditions in relation to the bail, and if there are, they are imposed on a discretionary basis. An accused will only need to return to court when the case against them is being heard, or if summonsed as a witness in a case against the organiser/facilitator of a people smuggling venture. There is no general requirement to report to police or police stations between hearings.

    5.23The same processes outlined above are applied to returnees who travelled illegally to India and then onwards to a third country. Children are never subject to bail or fines. DFAT has been advised by the Sri Lankan Government that no returnee from Australia to Sri Lanka has been charged under the PTA. While credible, DFAT cannot verify this claim.

    5.24Some returnees from Australia have been charged with immigration offences and other criminal offences which they allegedly committed before departure. For example, in October 2012, warrants were issued for the arrest of a group of returnees in regard to the robbery of a vessel used to travel to Australia; the causing of grievous harm to persons; and people smuggling.

    5.25The Sri Lankan Attorney-General’s Department distinguishes between those suspected of being passengers and those suspected of facilitating or organising the irregular migration of people from Sri Lanka. Facilitators or organisers can be charged with an offence under Section 45C of the I&E Act.

    5.26DFAT assesses that ordinary passengers on a people smuggling venture are generally viewed as victims and penalties are more likely to be pursued against those suspected of being facilitators or organisers of people smuggling ventures. The Sri Lankan Government plans to review the I&E Act and produce new legislation in 2017 that better reflects this approach. ….

    Applicant’s views concerning the current situation in Sri Lanka

1. The applicant stated that as far as he was aware political prisoners in Sri Lanka have been arbitrarily detained for a long period of time without any trial or judicial review. This was the case for those individuals who had been involved with the LTTE and were over forty years of age. Few, if any of these prisoners have been released, according to the applicant.

2. The applicant understood the information as read to him by the Tribunal is what has been officially reported about the current situation in Sri Lanka but that was not the actual situation. Tamils, in general (according to the applicant) were not provided with “…protection…” even though they have increased their political activities within post-civil war Sri Lanka. The applicant was sceptical and expressed his concerns that a similar fate awaited him if, and when, he returned to Sri Lanka.

3. The applicant also feared that if placed in custody by the authorities he will not only face questioning but would also suffer torture. The applicant also referred the Tribunal to observe and read information published on website known as ‘Tamil.net’ which describes a very different picture of the actual situation in post-civil war Sri Lanka. Therefore, the applicant did not accept as correct the country information and told the Tribunal that he “….came to Australia because I had to save my life.…” The applicant stated that all he wanted was to live in peace, and to be a “good citizen of Australia….”

   Post-Hearing submission by the applicant’s representative

4. The Tribunal received on 14 May 2018 a further submission from the applicant’s representative and main points of that submission are as follows:[1]

   [1] AAT File 1728790

   Applicant’s LTTE involvement

   §The applicant claimed that after he had been deported from [Country 1] to India, he feared that the Indian and Sri Lankan authorities would treat him with suspicion and subject him to harm. Therefore, in order to try to protect himself, the applicant made inquiries with members of the Tamil community in India about well-known LTTE leaders. He approached friends who were involved in transporting medical supplies for the LTTE.

   §Due to these inquiries, the applicant claimed he met the person known as [Leader A]. He approached him and told him that he had undertaken training with the LTTE in Sri Lanka. The applicant also told [Leader A] that he could work hard and had no support in India and would be willing to support him.

   §The applicant claims that over a period of time [Leader A] came to trust him and then he was requested to do certain tasks for him. The applicant was provided with two security guards who would always travel with him. These personnel also had extensive knowledge of Tamil Nadu. The applicant was also provided with vehicle and later was appointed a leader of [Indian Town 1] and his tasks included working as a logistic coordinator for [Leader A].

   §The applicant was instructed by [Leader A] to visit the various LTTE camps and to distribute money to LTTE affiliates, cadres and to family members of LTTE fighters who had died in conflict.

   §Due to this role, the applicant claims to have in his possession significant amounts of information about which individuals were involved with the LTTE.

   §The applicant also claimed that he had the responsibility and coordination of the distribution of [specified] supplies to areas which required such [resources] for the prosecution of the war against the Sri Lankan army. He was also responsible for distributing supplies (of various kinds) near the remote villages of [two Indian towns]. 

   §The applicant claims that he did not want to assist the LTTE while in India, he did so in order to “survive…” He claims that given the nature of the work he did for [Leader A] in India he would be at a serious risk of harm upon return to Sri Lanka because the Sri Lankan authorities work closely with the authorities in Tamil Nadu and they would be made aware of his activities with the LTTE.

   [Mr A]

   §The applicant in his submission dated 4 May 2017 to differently constituted Tribunal, claimed at a [Mr A] upon his return to Sri Lanka was forced to provide information about the applicant. The applicant claims that given the prevalence of torture in Sri Lanka, specifically the fact that the Sri Lankan authorities rely on torture to coerce individuals to provide information, [Mr A] did provide such information as was requested about the applicant to the authorities.

   §[Mr A] was aware the applicant’s work with the LTTE in India and provided that information to the Sri Lankan authorities.

   §[Mr A] also it was claimed informed the applicant’s sister that the applicant not return to Sri Lanka because he was genuinely concerned the applicant would face serious issues given the information the authorities had on his past activities.

   Previous return to Sri Lanka

   §The applicant claimed that he naively decided to return to Sri Lanka from India. This was because he thought the ware had ended and the situation would have improved. The applicant alluded contact with the authorities while in Sri Lanka because he took precautions – returned by boat, did not register and he tried to keep a low profile.

   Applicant’s profile

   §The applicant claims that it is important to take into account his role with the LTTE in India. He was highly trusted by [Leader A] and was given high responsibilities assisting him with logistics and operations for the LTTE in India.

   §He was appointed as a leader of the LTTE in [Indian Town 1] and had gained valuable information about the LTTE operations and personnel.

   §The applicant claims that given the intensity of the Sri Lankan authorities’ intelligence gathering, his activities would be well known to them and therefore he was more likely to be of interest to them.

   §The Sri Lankan authorities it was claimed have an on-going interest in the activities of Tamil Diaspora and this could cause the applicant to be detained if he was to return to Sri Lanka.

   §Given that the Sri Lankan authorities wish to prevent a resurgence of the LTTE, it is highly plausible they would want to obtain information from the applicant concerning the LTTE’s operations and people in Tamil Nadu, India.

   §The applicant claims that his ongoing involvement with the LTTE in India would further place him at risk of serious harm if he returned because of the applicant’s race, area of origin, the fact he fled Sri Lanka and remained abroad for considerable period of time.

   §The applicant claims that his prolonged non-registration in Sri Lanka or in India would cause the Sri Lankan authorities to believe he was involved with the LTTE for longer period of time than was the real case.

   §Confinement in detention the applicant claims since 2010 indicates to Sri Lankan authorities that he feared to return to Sri Lanka.

   §Relocation, the applicant claimed was not possible because the Sri Lankan authorities had effective control over the entire country.

   TRIBUNAL’S CONCLUSIONS ABOUT THE APPLICANT’S CLAIM

   The issue of credibility – preliminary comments

5. The Tribunal is aware of the importance of adopting a reasonable approach in finding of credibility. In Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 194:

   ....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…

6. 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…” (see, the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at paragraph [196]. However, the Handbook states at (paragraph [204]) that:

   ….The benefit of 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….

7. 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 this, it is important to bear in mind the difficulties often faced with asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all their claims.

8. 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 be possibly true (see MIMA v Rajalingam (1999) 93 FCR 220).

9. However, the Tribunal is not required to accept uncritically any or all of the allegations made by the applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that the particular assertion of 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).

   Is the applicant a refugee?

   Assessment of the applicant’s claims

10. The applicant claims to be a Sri Lankan national. In the absence of evidence to the contrary, the Tribunal finds that Sri Lanka is the applicant’s country of nationality for the purposes of the Convention and also his receiving country for the purposes of s. 36(2)(a) and s.36(2)(aa) of the Act. Also, the Tribunal accepts that the applicant is of Tamil ethnicity and that he originates from the Eastern Province of Sri Lanka.

    a.The applicant’s involvement with the LTTE

11. The applicant claimed that after he had been deported from [Country 1] to India in [year], he feared that the Indian and Sri Lankan authorities would treat him with suspicion and subject him to harm. Therefore, to protect himself, the applicant made inquiries with members of Tamil community in India seeking to join the LTTE (which he remained with until 2009 when he left India for Sri Lanka). Following these inquiries, the applicant claimed he met a person known as [Leader A] – an LTTE ‘[commander]’ as he was described to the Tribunal. The applicant claims that over a period of time [Leader A] came to trust him and the he was requested to do certain tasks for him. He was provided with a vehicle and was instructed by [Leader A] to visit various LTTE camps and to distribute money to LTTE affiliates, cadres and to family members of LTTE combatants who had died in the civil war.

12. Due to this role, the applicant claims to have in his possession significant amounts of information about which individuals were involved with the LTTE. The applicant also claimed that he had the responsibility and coordination of the distribution of [specified] supplies to areas which required such [specified resources] for the prosecution of the war against the Sri Lankan army. He also claimed to have been responsible for distributing supplies (of various kinds) near the remote villages of [two Indian towns]. The applicant claims that it was not his intention to assist the LTTE while in India but chose to do so in order to “survive”. The applicant claims that given the nature of the work he did for [Leader A] in India, the applicant would be at a serious risk of harm if he was to return to Sri Lanka because the Sri Lankan authorities work closely with the authorities in Tamil Nadu and they would have been made aware of his activities with the LTTE. Although the Tribunal accepts and finds that the applicant may have had a past affiliation with the LTTE forced upon him in Sri Lanka by his abduction by the LTTE and later in India by his own choice, his claims of involvement in the logistics and as part of the chain of command of the LTTE that would make him a person of interest to the Sri Lankan authorities are not credible.

13. First, the applicant’s description of his immediate superior ‘[commander]’ [Leader A] who enters the applicant’s life and plays such a significant role as the applicant claims is described by the applicant in very minimal terms.

14. Second, without any specific details provided to the Tribunal – the Tribunal was told that the applicant was given the responsibility for major logistics in wide field of military operations and trusted with sensitive information. That being so, the applicant provided very little specific information or examples of this role he had within the LTTE as he claimed in the actual hearing and only provided supplementary information in written submissions provided post-hearing by his counsel. Though the Tribunal accepts that past events would with the passage of time be difficult to recall in minute and exact detail, that being so, if the applicant was so integral in the LTTE military organisation as he claimed he would have remembered some details of his ‘significant involvement’ at the hearing proper.  Indeed, when the applicant was asked by the Tribunal to describe and explain in detail his involvement with the individual the applicant described as ‘[commander]’ [Leader A] the applicant was vague and his responses lacked the detail and substance one would expected from an individual who claimed to have been a ‘leader’ of a particular LTTE-occupied district (that of [Indian Town 1]) and a confidant of an LTTE [commander]. Moreover, the Tribunal conducted its own research of the individual named by the applicant with the surname ‘[Leader A name]’ and found that a person called “[same name]” was [in] Sri Lankan legislature of a [party] called [name] in [City 1], who [died] in Sri Lanka on [earlier date][2] and had no relationship to any ‘[commander]’ of the LTTE as was claimed by the applicant. The Tribunal was unable in its research to find any independent sources of information on the existence, activities or whereabouts of a LTTE ‘[commander]’ named [Leader A] as described by the applicant. Therefore the Tribunal finds that the applicant may have had a past affiliation with the LTTE one forced upon him while still in Sri Lanka by the LTTE abducting him and the other by his own choice and free will upon his return to India from [Country 1] in [year]. However, the Tribunal does not find as credible the applicant’s claims that he was an integral part of the LTTE and a leader of the LTTE in [Indian Town 1] as he claimed and that this had made him a person of interest to the Sri Lankan Army and security police if he was to return to Sri Lanka.    

    [2] [Deleted.]

15. The Tribunal also noted the persuasive decision of the country guidance case of GJ & Others (post-civil war: returnees Sri Lanka CG [2013]UKUT 00319 (IAC), where the UK Upper Tribunal identified as one of its four risks categories as “Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the Diaspora and/or a renewal of hostilities within Sri Lanka.” (Paragraph 356 (7a)).[3] The Tribunal in GJ and Others also found that unlike in the past, returnees (like the applicant in this application) who have a previous connection with the LTTE are able to return to their communities without suffering ill-treatment. Civil society groups on the ground (according to the Tribunal) did not report recent issues of ill-treatment. The police interest, if any, is not in any previous involvement with the LTTE, but on whether the person has committed any criminal act. The Upper Tribunal goes on to state that “…those former LTTE members most at risk are those who are perceived to be a threat because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism….”  

    [3] UK Home Office Country Policy and Information Note: Sri Lanka: Tamil Separatism, Version 5.0, June 2015, see p.7

16. Third, the Tribunal finds that it does not accept the applicant’s claim that he was at risk because he was an important operative of the LTTE because such an individual would not have left his safe haven in southern India and travelled to Sri Lanka in the middle of a conflict to see his family and remain in a highly charged environment for a considerable period of time without inviting suspicions or the attention of the local military or security services of Sri Lankan state. Such actions portray not only a ‘naïve’ individual as the applicant was described in the written submissions of his Counsel but also one that was not as important or a significant part of the LTTE chain of operations as he claimed. Overall, Tribunal considers that the claims of the applicant’s association with the chain of operations of the LTTE in India were introduced by the applicant to act as an embellishment of the truth in order to enhance his claim for protection and the Tribunal does not accept the the claim that he held a senior position with considerable authority and responsibility within the LTTE organisation prior to the end of the Sri Lankan civil war.

17. Finally, the applicant displayed no post-conflict Tamil separatist beliefs in his evidence to the Tribunal and only aspired to “live in peace…”

    b. [Mr A’s] report to the authorities about the applicant’s LTTE activities

18. The Tribunal noted that the applicant expressed his concerns that certain information about his activities had been provided to the Sri Lankan authorities by a [Mr A] who was forced to describe in detail the applicant’s activities as a ‘member’ of the LTTE. The applicant’s counsel in her post-hearing submission claims that [Mr A] informed the applicant’s sister that the applicant should not return to Sri Lanka because he was concerned the applicant would face serious issues given the information the authorities had on his past activities. Again, the applicant’s claims of having been reported to the authorities for his past activities within the LTTE lack detail and credibility in the opinion of the Tribunal. It was submitted to the Tribunal that this was communicated to the applicant’s sister who is still living in Sri Lanka. It stands to reason that if the authorities had been given a strong lead about the applicant’s alleged activities as an important member of LTTE they would have also directed their attentions towards the applicant’s family and as the country information reports ‘monitored’ them closely, or harassed them or subjected them to constant questioning about the applicant’s activities and whereabouts. This has not occurred in in the applicant’s case and if it had occurred it would have been communicated to the applicant when he last spoke to his sister in 2017. Given that the Tribunal did not accept that the applicant was a high profile member of the LTTE as he claimed, it follows that the Tribunal finds that it does not accept as credible that the information provided by [Mr A] to the Sri Lankan authorities would be such as to cause the applicant if he was to return to Sri Lanka real concerns and justified fear that he would become the subject of constant security police questioning, surveillance and even indefinite arbitrary detention.  

19. In light of the findings above, the Tribunal considers that the applicant’s evidence in relation to his past events concerning his fears, because of his past association as he claimed with the LTTE to have been not credible.

20. The Tribunal accepts that in the past simply being a young person of Tamil ethnicity would have been sufficient to give rise of involvement with the LTTE or at least knowledge of the LTTE activities. The Tribunal notes that according to the UNHCR Eligibility Guidelines there is no longer a presumption of eligibility as a refugee based on Tamil ethnicity. This was earlier recognised in the 2010 Eligibility Guidelines. The 2012 Eligibility Guidelines state that the risks facing certain individuals require particularly careful examination. Those individuals include persons suspected of certain links with the LTTE including those who held senior positions, supporters who provided material assistance, fundraisers and propaganda activists, and persons with family links or who are dependent on or otherwise closely related to such persons. Having made the factual findings above, the Tribunal is not satisfied that there is anything in the applicant’s past experiences in Sri Lanka that would bring him into any of these categories.

1. As a person who has left Sri Lanka and who has sought asylum abroad, the applicant is in a situation common to thousands of Sri Lankan Tamils. As it was put to the applicant at the hearing, information from DFAT is that thousands of asylum seekers have returned to Sri Lanka since 2009 with few reports of torture or mistreatment. The Tribuanl is not satisfied on the material before it that there is a real chance or risk that the applicant would be regarded in this way or that he be charged with, or suspected of having committed, any criminal or terrorism relayed offence other than having departed illegally. Whilst the Tribunal is prepared to accept that some returning Tamils may be of interest to the Sri Lankan authorities, the Tribuanl is not satisfied, having regard to all of the applicant’s circumstances, that there is anything in the applicant’s profile to distinguish him from the thousands of Tamil asylum seekers who have safely returned home.

2. The Tribunal is not satisfied that the applicant had a profile that was of any interest or that caused him to be genuinely imputed with LTTE connections at the time he left Sri Lanka and later for Australia. As set out above, the Tribunal has rejected the applicant’s claims that he was involved in the LTTE in any senior positions with considerable military or civilian authority  while in India or because of his association with the LTTE in the past in Sri Lanka because of his  abduction and captivity by the LTTE. The applicant did not express or displayed any sentiments in favour of post-conflict Tamil separatism. In these circumstances, the Tribunal is not satisfied that the applicant has a profile which would give rise to a real chance or real risk of him being imputed with LTTE connections should he return to Sri Lanka now, or in the reasonable foreseeable future.

3. The Tribunal has given careful consideration to the applicant’s situation upon return to Sri Lanka as a consequence of his illegal departure. The Tribunal accepts as credible the information from DFAT, that upon return to Sri Lanka, returnees are processed by various law enforcement agencies at the airport, which typically takes several hours while they check the person’s identity and the existence of criminal or terrorist backgrounds. Returnees are not subject to mistreatment during this period of processing at the airport. Returnees who left Sri Lanka illegally are arrested by the police for breach of Sri Lanka’s immigration laws, have their fingerprints taken, are photographed and then transported to the Magistrates Court at the first available opportunity. Those arrested can remain in police custody at the CID airport office for up to 24 hours. Should a magistrate not be available because of a weekend or public holiday, those charged are held at a nearby prison.

4. The Tribunal finds on the country information that the applicant is likely to be questioned at the airport, charged with an offence of having departed illegally under the Immigrants and Emigrants Act and then either fined on the spot and released or granted bail on personal surety immediately by a magistrate or required to have a family member act as guarantor. Although the Tribunal has not accepted his claims that he was involved in the with the LTTE as a person who held senior positions with considerable authority, or that he was reported by [Mr A] to the authorities when [Mr A] returned to Sri Lanka. The applicant has [a specified relative] in Sri Lanka who would be willing to act as a guarantor if required to secure the applicant’s release on bail, and finds accordingly. The country information indicates that fines may be paid by instalment and, if bailed, there are rarely any conditions. DFAT assesses that, ordinarily, passengers on boats are considered as victims and penalties are more likely to be pursued against those suspected of being facilitators or organisers of people smuggling ventures. DFAT has been advised that no returnees from Australia to Sri Lanka have been charged under the Prevention of Terrorism Act. DFAT have also been advised that no returnee from Australia who has been charged under the Immigrants and Emigrants Act with departing illegally has been given a custodial sentence. Fine amounts were relatively small and were capable of being paid in instalments. As such, the Tribunal is not satisfied that the imposition of the fine would amount to serious or significant harm.

5. The Tribunal accepts that there is a low, albeit real, chance or risk that the applicant may spend a brief period in remand until a magistrate is available, in prison conditions which may be cramped, uncomfortable and unsanitary. The evidence indicates that this situation applies to all persons who have left Sri Lanka illegally, regardless of their background.

6. The Tribunal is not satisfied that being subjected to the process described above upon return to Sri Lanka, including any brief period in remand or any penalty imposed upon the applicant as a consequence of his breach of Sri Lanka’s immigration laws would involve systematic and discriminatory conduct as required by s.91R(1)(c) of the Act. Rather, the evidence suggests that such treatment would be the consequence of non-discriminatory enforcement of a law of general application, which is appropriate and adapted to achieving a legitimate state objective. The Tribunal is also not convinced that there is a real chance that any element in the process would involve serious harm. As such, the Tribunal is not satisfied that there is a real chance that the applicant would be subjected to treatment upon return to Sri Lanka amounting to “persecution” for the purposes of s.36(2)(a).

7. In considering whether there is a real risk of the applicant experiencing treatment involving “significant harm” for the purposes of s.36(2)(aa), the Tribunal is not satisfied on the evidence in this case that during a brief period in remand there is a real risk that the applicant will suffer intentionally inflicted torture, the death penalty or arbitrary deprivation of life. The Tribunal has carefully considered whether he would experience treatment amount to cruel or inhuman treatment or punishment or degrading treatment or punishment. The Tribunal is not satisfied that any pain or suffering caused by severe overcrowding and poor and unsanitary conditions, should the applicant be remanded in custody, would be intentionally inflicted on the applicant as required by the definition of cruel or inhumane treatment or punishment. Nor does the Tribunal accept that severe overcrowding and poor conditions would be intended to cause extreme humiliation as required by the definition of ‘degrading treatment or punishment’. The Tribuanl is not satisfied that there is a real risk that any element of the process the applicant is likely to face upon return would involve “significant harm” as defined by the Act.

8. The Tribunal accepts DFAT’s general advice that there are no official laws or policies that discriminate on the basis of ethnicity or language in Sri Lanka. DFAT have assessed that there is a low level of discrimination in the implementation of laws and policies and forced registration of Tamils had ceased. This suggests that the trend of monitoring and harassment of Tamils in day-to day life has generally ceased since the end of the civil war.

9. The Tribunal does not accept that the applicant would be denied any opportunity to return to a normal life where he would be free to pursue his own means of subsistence through work or treated any differently from other Tamils because of his prolonged non-registration while in Sri Lanka and later when he lived in India and in particular the Tribunal does not accept that he would be refused any assistance as he would require on account of his Tamil ethnicity given the information set out in the preceding paragraph.

10. Although the applicant did not advance any specific claims of persecution concerning his family’s displacement from their legally-owned property by a Singhalese family, he did make references that this event affected his family and the applicant even though he was in India at the time this occurred it would be remiss of the Tribunal not to draw its mind to the possibilities of the applicant upon his return to Sri Lanka facing a risk of or actual persecution because of this dispute over land involving his family. The Tribunal is not satisfied on the evidence before it that there is a real chance or risk that the applicant would suffer serious or significant harm in the reasonably foreseeable future due to this property dispute. In reality, this issue concerns his father. His father is still alive and the legal claimant of the land in dispute and it is up to his father to pursue this claim as he tried to do so in the past. However, though he is the legal owner of the property in question, according to the applicant’s evidence his father has become a “holy man” and has lost contact with the realities around him content to pursue the spiritual than temporal. Also, the applicant’s remaining family has re-settled elsewhere as far as the applicant knew. Nevertheless, the most recent DFAT country information on Sri Lanka does identify as a major issue confronting post-civil war Sri Lanka – the internal displacement of people. The report notes that the ‘Sri Lankan government has committed to returning land to the people displaced during the civil war conflict, which includes people who are landless’[4] as the is the case of the applicant’s family.

    [4] DFAT Country Information Report Sri Lanka 23 May 2018 at p.23 see paragraph [3.68]

11. The Tribunal notes that the applicant’s representative has provided both the Department and the Tribunal with extensive information relating to conditions in Sri Lanka. The Tribunal notes that DFAT has issued two country information reports – one is dated 24 January 2017 and the other 23 May 2018. Both reports given their currency have attracted the Tribunal’s attention and the information they contain therein has formed the basis upon which the Tribunal has assessed the applicant’s claims. The Tribunal also has preference to the information set out in the UNHCR Eligibility Guidelines set out above, noting that these are an authoritative and well respected resource.

12. Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted in Sri Lanka. For this reason, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. The applicant does not satisfy the criterion set out in s.36(2)(a) of the Act

13. The Tribunal further finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

14. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.  

    DECISION

15. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Peter Vlahos
    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.

    …

    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 them 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.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (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.

    …