1729929 (Refugee)

1729929 (Refugee) [2023] AATA 1196 (13 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE  Ms Shamili Kugathas, Legal Practitioner 10293
CASE NUMBER:  1729929
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Amanda Paxton
DATE:13 February 2023
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 13 February 2023 at 8:48am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – relevant country information – validity of DFAT’s assessments – political opinion – anti-government/pro-LTTE – father’s prior involvement with the Eelam People Revolutionary Liberation Front (EPRLF) – maternal uncles’ involvement with the LTTE – anti-government/separatist activities as part of the Tamil diaspora – Tamil Refugee Council (TRC) – heightened tensions in Sri Lanka – Prevention of Terrorism Act (PTA) – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 13 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Sri Lanka, applied for a Subclass XE-790 Safe Haven Enterprise visa (SHEV) on 29 June 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa), and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c)) of the Act).
On 28 November 2017, the applicant validly applied for review of the delegate’s decision to the Tribunal, attaching a copy of the decision by what is now the Department of Home Affairs (the Department) to the review application.
The applicant appeared before the Tribunal on 20 October 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.
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, 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.
Relevant country information
In this consideration, the Tribunal has had regard to the DFAT Country Information Report for Sri Lanka, dated 23 December 2021 (the DFAT Report).[1]
[1] DFAT Country Information Report on Sri Lanka, 23 December 2021.
The Tribunal has considered the submission of the applicant’s representative that DFAT is not an independent organisation, but a government agency whose priority lies with advancing Australia’s interests abroad and as such, reports from DFAT cannot be considered as a valid source, which accurately depicts the present situation in Sri Lanka and so it is also important that the DFAT reports are viewed in the context of all available current country information. It is submitted that additional and numerous country information show that the situation facing Tamils with a profile such as the applicant’s face a very different reality in Sri Lanka.[2]
[2] AAT 1729929, Doc Id. 3992482, 19 October 2022.
As noted above, Ministerial Direction No. 84, requires that a decision maker takes into account DFAT’s assessment where relevant in making their decision, but does not preclude the decision maker from considering other relevant information about the country. The Tribunal notes that DFAT’s report is informed by DFAT’s on-the-ground knowledge and discussions with a range of sources, including in Sri Lanka. It takes into account relevant and credible open source reports, including those produced by: the US Department of State, the UK Home Office, the World Bank and the International Monetary Fund; relevant UN agencies, including the Office of the United Nations High Commissioner for Human Rights (OHCHR), the United Nations High Commissioner for Refugees (UNHCR), the United Nations Development Programme (UNDP), the United Nations Population Fund (UNFPA) and the International Organization for Migration (IOM); leading human rights organisations such as Human Rights Watch, Amnesty International and Freedom House; Sri Lankan non-governmental organisations (NGOs); and reputable news organisations. Where DFAT does not refer to a specific source of a report or allegation, this may be to protect the source.
Considering the wide range of sources used including local sources consulted in the preparation of this report, the Tribunal does not accept the contention that DFAT’s assessments are not soundly based, or an accurate, valid source. In making this decision, while taking into account country information provided by the applicant, the Tribunal gives weight to DFAT’s assessments which it considers to be independent.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J of the Act in Sri Lanka and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Identity and country of reference
The applicant advised the Department that he was born on [date] in [location] in the city of Chennai in Tamil Nadu, India. He provided to the Department a scan of an original birth certificate from Chennai in India in his name. The Departmental delegate found that the applicant’s identity is as described on his birth certificate, which includes the applicant’s father’s name and his second family name. The delegate was satisfied that the applicant is a Sri Lankan citizen, born in India.[3]
[3] See Department file [number].
The documents provided by the applicant are consistent with his evidence to the Department and the Tribunal in relation to his identity. While the applicant was born in India, the Tribunal finds there is no evidence to suggest that he has a right to enter and/or reside, whether temporarily or permanently, in India or any other country but Sri Lanka. Therefore, based on the information provided by the applicant, the Tribunal finds he is a citizen of Sri Lanka and as such his protection claims will be assessed against Sri Lanka as the country of reference and ‘receiving country’ respectively.
Background and migration history
The applicant arrived in Australia by boat [in] June 2012 and was included in his father’s application for a permanent protection visa in 2012. This application was refused on 22 February 2013, a decision which was affirmed by the RRT on 3 February 2014.
In his application for a SHEV the applicant declares that his father and mother are both Sri Lankan citizens and he can speak, read and write in the Tamil and English languages.[4] Along with his application for a SHEV, the applicant provided the Department with a statement dated 28 June 2017.[5] He states that he is a citizen of Sri Lanka, and a Tamil Hindu. He states he has never been to Sri Lanka and spent his entire life in a refugee camp in India until he left for Australia in June 2012.
[4] Ibid.
[5] Ibid.
Claims for protection
In his SHEV application, the applicant states he fears returning to Sri Lanka for the following reasons:[6]
[6] Ibid.
·     My parents are Tamils from the north of Sri Lanka. During my father’s time in Sri Lanka, he joined the Eelam People Revolutionary Liberation Front (EPRLF) which was a Tamil rebel militia organisation. My father would often tell me that he was disappointed that the EPRLF in the late 1980s had aligned itself with the IPKF [Indian Peace Keeping Force] and the Sri Lankan Government.
·     During my childhood my father would often tell me stories about how Tamils were oppressed and targeted in Sri Lanka, and my dad would often express remorse that he had to leave his home country.
·     I was subjected to discrimination in the Indian Refugee Camp. We were excluded from higher education and job opportunities, and we were subjected to restrictions about when we can leave the camp.
·     I also feared that the Indian authorities would one day send us back to Sri Lanka. My father was involved in a rebel militant group and the Sri Lankan Government are still targeting Tamil people that were involved in militant groups. The CID [Criminal Investigation Department] and Sri Lankan army will target me because my father was involved in a rebel group.
·     From India I caught a boat which was intercepted by the Australian Navy. I was taken to Christmas Island around [date] June 2012.
·     Now having lived in Australia for 5 years, I am used to a society of equality and freedom. I will not hesitate to speak out if an atrocity happened in front of me.
·     In February 2014 the Department of Immigration & Border Protection leaked my personal details on their website. I believe that because of this the Sri Lankan authorities would be aware that I have sought asylum in Australia, and so if I was to be returned to Sri Lanka, they would detain and beat me so as to deter me from being involved in any pro Tamil separatism activities.
·     I do not know anything about life in Sri Lanka. I am aware that Tamil men are often imputed with anti-government ideologies and taken away and detained or tortured. The authorities will perceive me to be a threat to the Sri Lankan regime.
·     I fear I am at risk of being harmed by the Sri Lankan Army and CID if I return to Sri Lanka. My father has already suffered torture and harassment at the hands of the Sri Lankan authorities. As a result, I do not have any trust in the Sri Lankan authorities.
·     The Prevention of Terrorism Act (PTA) means we Tamils can be detained and jailed at any time with no reason given or access to a lawyer.
·     My mother’s family was heavily involved in the LTTE [Liberation Tigers of Tamil Eelam].
·     I do not have family links or friends residing in Sri Lanka and I do not speak Sinhalese. Because of these reasons I would be targeted if I was forcibly returned to Sri Lanka.
Following his interview with the Department on 26 October 2017, the applicant’s representative provided a post-interview submission on 9 November 2017.[7] The representative submitted that the applicant will be at risk of persecution from the authorities for the following reasons:
· His family connections to the LTTE. The applicant’s maternal uncles held extensive roles with the LTTE. The applicant’s uncle, whose memorial paper is submitted, held a high-ranking position with the sea tiger unit of the LTTE. Additionally, the applicant has had multiple uncles from his maternal side who have disappeared and were never heard from again.
· His own father was involved with EPRLF and was involved in Tamil separatist activities. It should also be noted that the applicant’s father belonged to the division of EPRLF that was controlled by Varadaraja Permual, who fled to India when EPRLF became divided into multiple groups. The division that the applicant’s father belonged to was not the faction that aligned itself later on with the Government. The applicant is fearful that this division of EPRLF is still considered to be an enemy of the Sri Lankan Government and will cause him further risk of persecution in Sri Lanka, based on his father’s association with them. It is claimed that these connections are significant connections to the LTTE and other Tamil separatist groups and give rise to the applicant being imputed as LTTE and a threat to the Sri Lankan Government.
[7] Department file, Doc Id. 10059254.
The applicant’s representative submits that in these circumstances there is a real chance that the applicant possesses a profile of concern to the Sri Lankan authorities. The fact that the applicant has lived outside of Sri Lanka for his entire life, will, in light of his family history, at the very least give the authorities cause to consider why he feared living in Sri Lanka.
Tribunal submissions
On 18 October 2022, the applicant’s representative submitted that should the applicant be returned to Sri Lanka he will be imputed with LTTE connection, anti-government opinion and come to the adverse attention of the Sri Lanka Army (SLA).[8]
[8] AAT 1729929, Doc Id 10345802.
It is submitted that in the current political climate, where revival of the LTTE remains a major concern for the Sri Lankan Government and there is evidence of the Government cracking down on individuals with links to the LTTE, there is a real chance that someone with the applicant’s profile would be suspected of activities of pro-LTTE opinion and that there is a real chance that he will be detained and interrogated at length and be subjected to torture.
The submission also included a letter of reference from [Mr A], [office bearer] of the Tamil Refugee Council (TRC) dated [in] October 2022 in support of the applicant’s protection claims and discussing the political and related activities of the applicant in Australia.[9] [Mr A] states the following:
·     The TRC was established in 2011 and is an incorporated not-for-profit association that aims to provide assistance to Tamil refugees seeking asylum in Australia.
·     TRC spokespeople have been frequently quoted in Australian and international media, including in Sri Lanka. This includes on issues related to the situation Tamil refugees in Australia and persecution of Tamils face in their homelands by the Government of Sri Lanka. On many occasions our events and demonstrations have been disrupted or monitored by Sri Lankan Government supporters. I am certain that Sri Lankan security agencies are monitoring our activities.
·     The applicant has been a volunteer with TRC since 2015 and helped the organisation by coordinating events to highlight the human rights abuses taking place in Sri Lanka.
·     Every year on 18 May the TRC organises a genocide remembrance event to remember the people who were killed by the Sri Lankan Army in 2009. The applicant has been part of the organising team.
·     The applicant has also helped organise No Fire Zone film screenings that expose the war crimes, crimes against humanity and genocide committed by the Government of Sri Lanka.
·     The applicant’s activities in Australia to expose the human rights abuses of the Sri Lankan military and government heighten the risk of him being subjected to detention and possible torture at the hands of Sri Lankan authorities if he is to be returned to the country.
[9] Ibid.
Evidence at hearing
At hearing, the applicant gave evidence that he was born in Chennai, India on [date] to Sri Lankan nationals who arrived in India by boat in 1990 as asylum seekers, and that he is a Sri Lankan citizen. He confirmed that he came to Australia with his father on a boat from India in June 2012, and that he is single. He stated that he has no contact with his father’s remaining family in Sri Lanka, and he doesn’t know anything about his paternal aunts or his grandmother, explaining that he has not had any chance to get to know them.
The applicant stated that his mother remains in India as a Sri Lankan asylum seeker in [a named] Refugee Camp. He has contact with his mother in India and very occasional contact with his maternal grandmother in Sri Lanka. He has no contact with maternal uncles in India.
The applicant told the Tribunal about his experiences growing up in the refugee camp before leaving India 10 years ago. They were not free to move around and had to adhere to restrictions placed up on them, such as the requirement to sign in and out of the camp every day when going to school and return to the camp at the time specified. He said that his father used to work in a factory, so they had some income and support also came every month from the Camp.
The applicant stated that he and his father, a Tamil from the north of Sri Lanka, came to Australia because politicians were planning on sending Sri Lankans from the refugee camps back to Sri Lanka where he feared harm because of his activities in civil conflict in the 1980s and because of his wife’s links to the LTTE. In addition, because he was not an Indian citizen he was not provided with educational opportunities and had to pay higher fees than others to go to college.

In Australia, the applicant has qualified as a [Occupation 1] and works as a [Occupation 1] in a [workplace] in Melbourne, a job he enjoys and finds rewarding although it can be stressful.
The applicant lives with, and cares for, his father, who is now unable to work or look after himself for health reasons. His father has end stage renal failure (8% functioning of one kidney) and he is maintained at home using a home dialysis machine every night which replaces functioning of the failed kidneys. The applicant assists his father every night to connect to the machine and if problems arise. The applicant said his father is on a list for a kidney transplant.
The applicant told the Tribunal that on his days off he helps others in the community. He stated that he has been a constant member and participant with the TRC for a long time, having been involved as a volunteer since 2015 when he started going to events. He stated that he met the founder, and agreed with his views and started helping them, becoming increasingly involved as a coordinator for events.
As a volunteer he attends a meeting every second week, where the group plan how to assist Tamil asylum seekers in need with issues such as Centrelink or legal assistance and material goods. They also discuss and plan ways to advance the rights of Sri Lankan asylum seekers in Australia. He said that many Tamil people of mixed age and gender are involved in the TRC, and that most of his friends are from the TRC now. He explained that the President has organised the members into seven or eight teams, each being involved in different activities and that his role depends on the focus of the team to which he is assigned. Roles include arranging to obtain groceries and organising distribution to people in need, promoting the charity and letting people know how to get help, organising rallies/protest to raise awareness among people of the situation facing Tamils in Australia and in Sri Lanka and fundraising to provide for the basic needs of Tamil asylum seekers.
The applicant said that the TRC also organises protests/rallies to raise awareness that Tamils are oppressed in Sri Lanka. His role varies depending on the rally, in one he may be involved in coordinating people and encouraging participation, e.g., he would go to Tamil temples and distribute flyers and promote and encourage support and promote events on social media. In others he may be involved in organising the event, organising signage, banners, and the order of the speakers, in others he may be a speaker.
The applicant told the Tribunal that he assists the TRC to organise events to commemorate those who died at the end of the civil war in May 2009 in the Mullaitivu district, explaining that he books a hall and organises prayers for people who died in the war and he participates in rallies on this day.
The applicant said that he fears being sent to Sri Lanka because on arrival he will be questioned and suspected as anti-government which because he is related to his father who will be identified as pro-LTTE because of his involvement in the EPRLF before he left for India and because of his father’s involvement in an incident in 1988, when he supported a friend, a member of the LTTE, in what turned out to be bombing an army truck. According to the applicant the Sri Lankan authorities had the applicant’s father’s ID documents and tried to catch him, suspecting he was LTTE. This will put his life in danger.
The applicant also claimed he will be associated with the LTTE through his mother’s brother who, according to his mother, was involved in the LTTE in a high position, recruiting people for the LTTE, and died in 2009. He said his mother was not involved in LTTE.
The applicant also believes he will be questioned at the airport and identified as a failed asylum seeker and they will look at his background and enquire as to what he was doing in India. They will look into his social media posts which will show he has supported LTTE people who died in the war, and his involvement as an activist at TRC events and rallies which are critical of the Sri Lankan Government and Australian Government policy, leading the authorities to have concern about his activism. He fears he will be investigated at the airport and could be detained, tortured and monitored for a long time.
The applicant stated that Sri Lankan authorities are scared about the re-emergence of separation movements, and they will suspect him as a person who is involved in political activity. He said he is not involved in a political party and does not support a separate Tamil Eelam but he wants the Sri Lankan authorities to treat everyone equally and fairly. He told the Tribunal that his motivation for his involvement in the TRC is firstly to try to help everyday people. He said he became interested in [Occupation 1] because he genuinely wants to help people, and he joined the TRC because it helps people. Over many years, he has heard from his father about how Tamils were treated and how many have disappeared, and after coming to Australia and seeing the TRC supporting Tamils, he has been motivated to help his own people. At the same time, he supports the work of the TRC in educating others about the role of the Sri Lankan Government in oppressing Tamils in Sri Lanka. For these reasons he thinks he will be considered a threat to the Sri Lankan Government, and fears detention and torture as a result.
The applicant told the Tribunal that if returned to Sri Lanka, he will feel compelled to speak out and organise against injustice.
Post-hearing submission
On 3 November 2022, the applicant’s representative submitted that the applicant faces a real chance of persecution involving serious harm should he be returned to Sri Lanka as a result of his involvement in the TRC and the TRC’s activities.[10]
[10] AAT 1729929
In this submission, additional information is provided about the TRC and it is explained that as well as supporting asylum seekers and refugees in Australia, this organisation educates and creates awareness about the history of Tamil oppression and the challenges facing Tamil people in Sri Lanka. Links to the TRC website[11] and [social media] page[12] are provided. A link to the applicant’s own [social media] account and various [social media] posts from this account which span from 2016, including evidence that the applicant has attended Martyrs’ Day celebrations in Australia, has also been submitted.
[11] [Source redacted]
Also provided on 3 November 2022 was a link to a video posted on the applicant’s [social media] page. This video shows a peaceful rally in [Suburb 1], Victoria in support of changes to the protection visa regime apparently sponsored by the Victorian Socialists. An attentive crowd of about 200 people, listen to a number of speakers, predominantly Sri Lankan, who speak of their experiences, before marching and chanting, carrying banners to another location. The applicant is one of the speakers, most of whom, like the applicant, have been in Australia for more than 10 years. While the rally largely focussed on the precarious nature of life for this group on temporary visas in Australia, banners were overtly political and anti-Sri Lankan Government, concerning Tamil rights in Sri Lanka and militarisation in Sri Lanka.[13] It shows a number of people taking photographs of the event.
[13] Ibid.
It is contended that the nature of the work of the TRC and the applicant’s participation shown on these websites will be perceived by the Sri Lankan Government as anti-government and supportive of post-conflict Tamil separatist activities. It is claimed that the Sri Lankan authorities have extensive intelligence operations in Australia and that there is a real chance the Government will be aware of the applicant’s activities and that he will be perceived as a traitor with anti-government political opinion. It is submitted that sensitivity to criticism of the Government has been heightened through the period of tensions arising from the current economic crisis in Sri Lanka.
FINDINGS AND REASONS
The applicant has provided consistent evidence on a number of occasions over a 10-year period and the Tribunal assessed the applicant’s evidence at hearing as genuine and sincere and in line with documentary evidence. The Tribunal found the applicant to be a credible witness.
On this basis, the Tribunal finds the applicant is a [age]-year-old Sri Lankan national who has never lived in Sri Lanka, having been born and resided in a refugee camp in Tamil Nadu before coming to Australia by boat in 2012. He is Tamil and single, and lives with his father with whom he came to Australia as a [age]-year-old boy. His mother remains in India in [a named] Refugee Camp.
The Tribunal has considered the evidence provided by the applicant concerning his father’s circumstances prior to his departure from Sri Lanka. While the applicant’s discussion of these circumstances was necessarily limited given that he has no first-hand knowledge, his evidence was consistent with that set out in the Departmental delegate’s decision, provided to the Tribunal by the applicant, in which the applicant was also an applicant. These circumstances were accepted by the delegate, and later by the RRT. The Tribunal also considers these claims to be in line with information provided in the DFAT Report discussed with the applicant at hearing.[14] On this basis, the Tribunal accepts the applicant’s father, a Tamil man from the north of Sri Lanka, was a member of the EPRLF, a rebel militia group at that time. The Tribunal accepts that his father trained with the EPRLF. The Tribunal accepts the applicant’s evidence that his father did not engage in direct contact with the SLA but assisted in various actions against the SLA and was detained by the SLA for six days accused of being in the LTTE in 1986.The Tribunal accepts that the applicant’s father was mistreated in this period.
[14] DFAT Country Information report, Sri Lanka, 23 December 2021, [3.65 – 3.72].
The Tribunal has considered the applicant’s claim that the Sri Lankan authorities will also have a record of his father’s involvement in an incident in 1988 where he inadvertently supported a friend in an attack on an army truck and that this record will heighten suspicion against the applicant. The Tribunal accepts that the applicant’s father may have been involved in a limited way in such an incident but considers the evidence indicates there to be a remote possibility that the SLA were concerned about the applicant’s father’s involvement had they been aware of it, given his father remained in Sri Lanka a further two years without any further contact with the SLA.
As discussed with the applicant at hearing the ideology and allegiances of the militia groups at this time were complex and varied, leading to splintering of groups as the LTTE sought to dominate. The Tribunal accepts the applicant’s father belonged to the division of EPRLF which did not align itself with the Government when it divided into a number of groups. However, the Tribunal considers that given over 30 years have passed since that time, there is less than a remote chance that the Sri Lankan authorities will now be aware of the applicant’s father’s involvement in this division of the EPLRF, or as discussed below be concerned about it.
On the evidence before it, the Tribunal accepts that in 1990 as hostilities in the north intensified, the applicant’s parents joined many other supporters of the EPRLF in fleeing to Tamil Nadu, where they lived in various refugee camps, primarily [a named] Refugee Camp where the applicant was born. The Tribunal accepts that many people in this camp had been, or were considered to be, associated with the EPRLF/LTTE, arriving as they did at a time of heightened conflict between militia groups, as well as the SLA.
The Tribunal has considered the evidence before it concerning the applicant’s maternal uncle’s LTTE involvement, an untranslated document purporting to be an LTTE memo concerning his death, a death certificate and a letter from the Presidential Commission to Investigate into Complaints Regarding Missing Persons. [15] The Tribunal has also taken into account the applicant’s evidence at hearing that his mother said his uncle was involved in recruitment for the LTTE. On the basis of this evidence, the Tribunal accepts the maternal uncles had a role in recruitment with the LTTE but considers there is no evidence before it that this was a leadership, high ranking or ‘extensive’ role with the sea tiger unit, as submitted. The Tribunal accepts the applicant’s maternal uncles were associated with the LTTE and died or went missing at the close of the war in 2009. The Tribunal also accepts the applicant’s contention that the LTTE did not expect multiple members of one family to be a member of the LTTE and the fact that a number of members of the applicant’s family were linked to the LTTE, may suggest to the authorities that members of the applicant’s extended family were supportive of the LTTE.
[15] AAT 1729929, Doc Id 3992482, 19 October 2022.
The Tribunal accepts the applicant experienced hardship and discrimination in the Indian refugee camp and that, fearing being returned to Sri Lanka by the Indian authorities who were negotiating repatriation, his father made arrangements for him and the applicant to come to Australia.
On the comprehensive evidence before it, including the applicant’s detailed evidence at hearing, the confirmatory statement by the [office bearer] of the TRC, the TRC website and [social media] page and the applicant’s own social media posts, the Tribunal accepts that since 2015 the applicant has been involved first at a participatory level, and later as an organiser and sometimes spokesperson for the TRC.
Actual/imputed political opinion
The applicant claims he will be targeted by the CID and SLA in Sri Lanka for reason of his actual and imputed political opinion as anti-government and pro-LTTE for the following reasons, taken individually and cumulatively: his father’s prior involvement with EPRLF; his maternal uncles’ involvement with the LTTE; his lifelong residence in India in a camp known for its EPRLF/LTTE associations; his profile as a young, unmarried Tamil man as someone who would assist the LTTE, and his active public involvement with the TRC in Australia in activities critical of the Sri Lankan Government.
The Tribunal accepts that as a returnee to Sri Lanka, and as a person who has never lived in Sri Lanka but was born in a refugee camp in Tamil Nadu, the applicant will be subject to certain processes during entry procedures and that he will be required to engage with Sri Lankan authorities to establish and obtain identity documents, and that in this process his background will be investigated.
As discussed with the applicant at hearing, DFAT advises that on arrival in Colombo returnees will be presented to Sri Lankan Immigration where they will be interviewed by the Chief Immigration Officer. Depending on their personal history, they may be interviewed by other agencies including CID, Sri Lankan State Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI). These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters.[16]
[16] DFAT Country Information report, Sri Lanka, 23 December 2021, [5.17–5.20, 5.26 and 5.27–5.32].
For returnees travelling on temporary travel documents, police undertake an investigative process to confirm the person’s identity, which would address whether someone was trying to conceal their identity due to a criminal or terrorist background or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal and court records, or in this case checking with Indian officials. DFAT state that they are not aware of detainees being subjected to mistreatment during processing at the airport.[17]
[17] Ibid, [5.20].
The Tribunal has also considered DFAT information that while the LTTE was comprehensively defeated in 2009, Sri Lankan authorities remain concerned over its potential re-emergence, and to separatist tendencies in general. DFAT indicate that sources report that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members, supporters and other separatists, including ‘stop’ and ‘watch’ electronic databases. DFAT understands these databases remain active. ‘Stop’ lists include names of those individuals who have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals whom the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities.[18]
[18] Ibid, [3.50].
In light of the information above, the Tribunal considers that in this process the authorities will become aware that the applicant was born and grew up in [a] Refugee Camp. They will become aware of the applicant’s father’s identity and background, they will assume his father had some association with the EPRLF given that the [named] camp was established at a time when many EPRLF supporters left Sri Lanka amid internal conflict, but as found above will not have information about the applicant’s father’s limited and low-level activities with the EPRLF in the 1980s. The Tribunal also accepts the authorities will become aware that members of the applicant’s extended family were affiliated with the LTTE before 2009.
Accepting that the authorities will become aware of the applicant’s father’s involvement in the EPRLF and his maternal uncles’ connection to the LTTE respectively, the Tribunal has considered whether these associations provide the applicant with a profile of interest to the Sri Lankan authorities. As discussed with the applicant at hearing, DFAT information indicates that those with indirect and past connections with the LTTE, unless at a very high level of the organisation, such as having held a senior position with the LTTE’s military wing and civilian administration, are unlikely to be of significant interest to Sri Lankan security forces.[19] As found above, neither the applicant’s father nor his uncles had profiles at a very high level with the LTTE, or pro-separatist movements. The Tribunal is satisfied that neither the applicant’s father nor his uncles are of significant interest to the Sri Lankan authorities.
[19] Ibid, [3.39 – 3.49].
In assessing whether the applicant will be of adverse interest to the authorities on account of this association with his father or uncles, the Tribunal has also taken into account DFAT information discussed with the applicant at hearing that the Sri Lankan Government acknowledges that former LTTE members and their families may continue to face discrimination both within their communities and from government officials. DFAT cannot verify claims that people have been arrested and detained because of their family connections with former LTTE members but understands that close relatives of high-profile former LTTE members who are wanted by Sri Lankan authorities may be subject to monitoring. The International Truth and Justice Project (ITJP), based on interviews with Tamils who have fled the country and are resident overseas, states that family members of former or suspected former LTTE cadres have been subject to harassment and detention.[20]
[20] DFAT Country Information Report Sri Lanka, 23 December 2021, [3.58].
The Tribunal has found above that the applicant’s father does not have a profile of interest to the Sri Lankan authorities. The Tribunal is also satisfied that the applicant’s connection to the LTTE through his now long dead uncles is not a close one and that they are not wanted by Sri Lankan authorities. On the evidence of the country information before it, the Tribunal is satisfied there is not a real chance the applicant would be of adverse interest to the Sri Lankan authorities, or subject to monitoring or harassment and detention for reason of these connections.
Perceived and actual involvement in anti-government/separatist activities as part of the Tamil diaspora

The Tribunal has accepted above that the applicant has had a long-term involvement, first at a participatory level and later in an organisational role with the Australian community organisation, the TRC. On the basis of the extensive social media evidence before it, and the statement provided by the organisation’s [office bearer] and founder, [Mr A], the Tribunal accepts the TRC was founded in 2011, and is an incorporated not-for-profit organisation with the mission to build solidarity, campaign collectively, educate and organise.
The Tribunal finds that the TRC has a moderate local and international (including in Sri Lanka) profile and that as well as providing practical support to Tamil refugees and asylum seekers, its spokespeople comment about the situation in Sri Lanka, including oppression and persecution of Tamils by the Government. Online material shows members of the TRC meeting with Australian Government Ministers. Its leadership organises rallies and activities to educate the community about events and challenges facing Tamil people in Sri Lanka and the diaspora. The Tribunal accepts that the TRC also aims to encourage Australia to break ties with ‘brutal’ (Sri Lankan) regimes and “to defend oppressed nations’ right to self-determination.”[21] The Tribunal assesses that this activity is critical of the Sri Lankan Government and supportive of Tamil rights. The Tribunal also accepts the TRC organises public events to celebrate Martyrs’ Day and raise awareness of Tamil issues.
[21] >
In considering the applicant’s role in this organisation, the Tribunal has taken into account the applicant’s sincere and genuine evidence at hearing, extensive social media evidence and the supporting statement of the TRC [office bearer]. The Tribunal has examined the TRC [social media] account and screenshots of the applicant’s [social media] account and notes the applicant has been pictured holding placards stating “Sri Lanka: Stop militarisation” and was present at a screening of the film No Fire Zone. The Tribunal has observed live posts on the applicant’s [social media] account [in] November 2017 of his attendance at Martyrs’ Day Celebrations and posts made in 2016 and 2017 in tribute to Martyrs’ Day celebration events. The Tribunal has also noted video and images of the applicant as a speaker at Tamil rallies. At hearing, the applicant was able to speak in detail about organising events for the TRC. The Tribunal is satisfied that the applicant has taken an organisational/leadership role in a number of fields including organising numerous public events which focus on human rights issues in Sri Lanka and “genocide” remembrance events. The Tribunal is satisfied that he has public exposure as a person critical of the Sri Lankan Government and vocal about human rights abuses against Tamils in Sri Lanka.
In considering the applicant’s claim at hearing that people involved in protest in Australia are being monitored by the Sri Lankan authorities, and that because he works against the Sri Lankan Government he will be suspected of supporting anti-government action and at risk of serious harm for this reason, the Tribunal has had regard to the following assessment of DFAT contained in its most recent report:
3.53 At least one million Sri Lankan Tamils live outside Sri Lanka, mostly in Canada, Europe (with large communities in the UK and France), Australia and India. Members of the Sri Lankan Tamil diaspora may be citizens or legal residents of those countries, or dual nationals. Some members of the Tamil diaspora return to Sri Lanka to visit family members, for holidays and for business. Remittances from the Tamil diaspora provide an important source of income for family and community members in Sri Lanka.
3.54 Some members of the Tamil diaspora played a central role during the war, as a source of funding, weapons and other material support for the LTTE, and as political advocates for an independent Tamil state. Some Tamil diaspora groups continue to hold public demonstrations in their countries of residence for an independent Tamil state. High-profile leaders of pro-LTTE diaspora groups, particularly diaspora groups banned under Sri Lankan law, may come to the attention of Sri Lankan authorities because of their participation in such demonstrations. The Sri Lankan Government continues to assess that elements of the Tamil diaspora remain committed to a separate Tamil state. The UK Upper Tribunal in its May 2021 ruling on Tamils engaged in activities in the UK found that a range of political activities such as ‘attending meetings and demonstrations, holding flags or banners displaying the LTTE emblem, attendance at commemorative events, meaningful fundraising, any presence on social media, signing petitions’ may be perceived by the Government of Sri Lanka as threatening and it may trigger official harassment upon return.
3.55 In March 2021, the Sri Lankan Government proscribed a number of Tamil diaspora groups including the Australian Tamil Congress and the Tamil Youth Organisation (Australia), as well as a number of individuals based in Australia, the UK, Germany, Italy, Malaysia and several other countries. The Australian Tamil Congress and the Tamil Youth Organisation are not proscribed in Australia, while the LTTE remains a proscribed organisation in Australia.
3.56 Approximately 95,000 Sri Lankan Tamils live as refugees in Tamil Nadu, India. (see Returnees fromTamil Nadu).
3.57 DFAT assesses Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their security risk profile. DFAT assesses that following Tamils would be of particular interest to the authorities: those who hold leadership positions in Tamil diaspora groups, particularly groups deemed by the Sri Lankan Government to hold radical views; those who were formerly part of the LTTE, particularly in – but not necessarily limited to – high-profile roles; those who are suspected of raising funds for the LTTE during the war; and those who actively advocate for Tamil statehood. Those Tamils living abroad with links to the LTTE are unlikely to return to Sri Lanka voluntarily. [22]
[22] Ibid, [3.53–3.55].
Having regard to the above information, the Tribunal accepts that the applicant’s involvement in the TRC will be known to authorities. The Tribunal notes the TRC is not a proscribed diaspora group, but assesses it as a politically active, sophisticated community organisation operating at a reasonably high level and while the main focus is permanent visas for all refugees, it is publicly critical of the Sri Lankan regime and its treatment and oppression of Tamils, and its social media material contains numerus images of the LTTE flag and the Tamil Eelam emblem. The Tribunal considers that the applicant’s involvement is at visible community organisational level, and that should he be returned to Sri Lanka, he will be identified as someone who has attended and participated in pro-amil activities that support the Tamil fight for self-determination, including having been pictured holding the LTTE flag in a public protest.
On the basis of the country information before it, the Tribunal considers it is plausible that the authorities would be aware that the applicant was active in work indicating commitment to exposing the human rights violations of the Sri Lankan Government. While the Tribunal does not consider the applicant is in a high-level leadership role, the Tribunal is satisfied there is a real chance he will come to the notice of the Sri Lankan authorities in arrival and identification processes, as a person advocating against the Government and in support of Tamil rights. Taken along with his family’s (albeit long past and low level) political opinion in support of a separatist state, the Tribunal is satisfied that there is a real chance that during the identification checks at the airport described above the applicant will come to the adverse attention of the authorities.
As the applicant did not leave Sri Lanka illegally, the Tribunal is satisfied he would not be charged under Sri Lanka’s Immigrants and Emigrants Act (1948) (the I&E Act) which makes it an offence to depart Sri Lanka other than via an approved port of departure, such as a seaport or airport, and/or without a valid passport.[23] However, the Tribunal has considered the DFAT information above that the Sri Lankan authorities may monitor any member of the Tamil diaspora returning to Sri Lanka, depending on their risk profile, and considers that there is a real chance the applicant, who will be identified in the process of establishing his identity as a person of adverse interest for reason of his activities as part of the Tamil diaspora, will be subject to monitoring on return.
[23] Ibid, [5.21–5.26].
At hearing the applicant stated that were he to return to Sri Lanka he would feel compelled to continue to express himself and his views as he does here in Australia. He indicated that his views against the policies of the Sri Lankan Government affecting Tamils, such as the militarisation of the north which he regards as oppressive and confiscation of Tamil’s land for release to the military and to Sinhalese people, are deeply held. He indicated that he would be duty bound to continue to take action in support of Tamil rights, referring specifically to their efforts through protest to reclaim their land, and to commemorate the atrocities against Tamils at the end of the war. He stated that he has experience and skill through his work with the TRC in organising action to do this.
The Tribunal has considered the applicant’s history of consistent work with the TRC over the last seven years, and is satisfied that this is the case, and that he would continue political expression and action in Sri Lanka. The Tribunal accepts that the applicant, who has never lived in Sri Lanka and who has spent the last 10 years in Australia, is used to a society of equality and freedom. The Tribunal accepts that he would continue to speak out about hardship and oppression if presented with this in Sri Lanka.
In considering whether there is a real chance that the applicant will be subject to serious harm as a result of monitoring, the Tribunal has taken into account the following DFAT reporting concerning monitoring of Tamils.
Monitoring, harassment, arrest and detention
3.8 Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested or detained by security forces during the war. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner (see Liberation Tigers of Tamil Eelam).
3.9 Members of the Tamil community and NGOs report that authorities continue to monitor public gatherings and protests in the north and east, and practise targeted surveillance and questioning of individuals and groups. Security forces are most likely to monitor people associated with politically-sensitive issues, including those related to the war, such as missing persons, land release and memorialisation events (see Civil society organisations and government critics and Media).
3.10 Communities in the north and east report that monitoring is undertaken by military intelligence and the Police Criminal Investigation Department, though in many cases officers dress in plain clothes and do not identify themselves. According to local sources, those participating in public gatherings and protests are often photographed. In the east, local informants within the community (including neighbours and business owners) reportedly undertake monitoring on behalf of the authorities. Intelligence agencies also monitor links to foreign groups, including some in the Tamil diaspora (see Liberation Tigers of Tamil Eelam).
3.11 LTTE cemeteries in the north and east were destroyed by government forces during and after the war. Some have subsequently been restored. It is illegal to commemorate the birthday of LTTE leader Prabhakaran (26 November), or Maaveerar Naal (‘Great Heroes’ Day’ in Tamil, 27 November), although some Tamils are known to defy this ban. The public display of LTTE symbols, including the LTTE flag and images of Prabhakaran, is also banned.
3.12 Tamils have been arrested in 2021 under the Prevention of Terrorism Act (PTA) for commemoration of the war (see Prevention of Terrorism Act). In May 2021, on the eve of commemoration of the end of the civil war in Mullaithivu district, the location at which various estimates suggest up to 40,000 civilians died in the closing phase of the war, authorities placed the district under strict COVID-19 quarantine isolation. According to local sources, Tamils who tried to commemorate the day were harassed or arrested by police. For example, 10 Tamils including two women were detained from 19 May 2021 until at least late July for holding a socially-distanced candle-lit vigil on a beach in Batticaloa, Eastern Province. On 19 May 2021, the Government of Sri Lanka, including President Rajapkasa, celebrated the same occasion as War Heroes Day
3.13 DFAT assesses that surveillance of Tamils in the north and east continues, with particular surveillance of those associated with politically-sensitive issues. DFAT also assesses that physical violence against those being monitored is not common, and that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment.[24]
[24] DFAT Country Information Report Sri Lanka, 23 December 2021, [3.8–3.13].
The Tribunal has also taken into account reports concerning the current political climate in Sri Lanka, and notes that Sri Lanka is in the midst of an economic and political crisis.[25] This has involved widespread protests against the Government, culminating in the removal of President Gotabaya Rajapaksa from office and resignation of Prime Minister Mahinda Rajapaksa. In mid-July 2022, the parliament voted in Ranil Wickremesinghe as President, and declared a State of Emergency on 18 July 2022. Shortly after, the Government commenced a crackdown on the protest movement, arresting protest leaders.
[25] ‘Sri Lanka Multi-Dimensional Crisis Situation Report No. 2’, United Nations Office for the Co-ordination for Humanitarian Affairs (OCHA), 5 August 2022, p.2; ‘Sri Lanka Teeters on the Brink’, United States Institute of Peace, 27 July 2022, p.3; ‘The hope and fear of the Sri Lankan protest movement’, Isaac Chotiner, New Yorker, The, 22 July 2022.
The Tribunal notes that protests have occurred across the country, although there have been fewer in the north.[26] Tamils in the north have been more cautious due to militarisation; 14 out of Sri Lanka’s 21 Army divisions are stationed in the north and the army dominates the economy and civil society.[27] At hearing the applicant referred to an example of Tamil protesters against government to get their lands back who have been held in detention for many months. On 12 May 2022, during a State of Emergency, police told Tamils gathered to commemorate wartime dead in Mullivaikkal that the police had orders to shoot anyone engaging in robbery or property damage.[28]
[26] ‘Tamils in Jaffna launch signature campaign demanding arrest of Gotabaya Rajapaksa’, Tamil Guardian, 7 August 2022; ‘Protests across North-East condemning recent arrests in the South’, Tamil Guardian, 31 July 2022.
[27] ‘In Sri Lanka, the Military Still Runs the Show’, Viruben Nandakumar, Foreign Policy, 04 August 2022.
[28] ‘We have orders to shoot’ – Sri Lankan police threaten Tamils gathering in Mullaitivu | Tamil Guardian.
The Government has imposed States of Emergency throughout the crisis. A State of Emergency allows increased powers for police to search, arrest and detain, and to impose and enforce curfews.[29] Several UN human rights experts and non-government organisations have expressed concern at the repeated use of emergency measures.[30] On 27 July 2022, Sri Lanka’s parliament approved new emergency regulations which impose penalties, including life imprisonment, for offences such as causing ‘mischief’.[31] The Government amended the regulations in August 2022 after human rights organisations protested that section of the regulations.
[29] Sri Lanka: New President Should Chart Path Upholding Rights | Human Rights Watch (hrw.org).
[30] Sri Lanka: UN human rights experts condemn repeated use of emergency measures to crack down on protests | OHCHR.
[31] ‘Sri Lanka: UN human rights experts condemn repeated use of emergency measures to crackdown on protests’, United Nations Office of the High Commissioner for Human Rights (OHCHR), 08 August 2022; ‘CPA Statement on the declaration of a State of Emergency on the 18th July 2022’, Centre for Policy Alternatives (CPA), 18 July 2022; ‘Sri Lanka: State of emergency must not be used to curtail fundamental freedoms’, CIVICUS: World Alliance for Citizen Participation, 18 July 2022.
The Tribunal considers that the heightened tensions and economic crisis in Sri Lanka in the last year potentially worsen the risk for the applicant and notes that one of the UNHCR’s most recent reports on Sri Lanka (2022) states:
Reports indicate that at least 70 people have been arrested under the PTA for
sharing social media posts commemorating victims of the war that included LTTE
images or Tamil nationalist iconography. On 18 May, police arrested 10 people near
Batticaloa under the PTA for organizing a memorial event; they were finally released
on bail on 8 December. A journalist, Murugupillai Kokulathasan, has been detained
for 15 months since November 2020 in relation to photos of the LTTE leader
appearing on his social media. The Government shared with OHCHR a directive
issued by the Inspector General of Police dated 23 October 2021 providing guidance
on restricting the use of the PTA and exercising greater discretion in evaluating
cases such as, possession of pictures.
In March 2021, new “de-radicalization” regulations were issued that permit arbitrary
administrative detention of individuals for up to two years without any legal
proceedings for the purposes of ‘rehabilitation’ in relation to violent extremism. The
Special Rapporteur on the promotion and protection of human rights and
fundamental freedoms while countering terrorism and other experts have warned that
the regulations may jeopardize the rights and liberties of persons who may be
detained arbitrarily, especially religious and ethnic minorities, and may curtail political
dissent with no effective due process guarantees. Civil society organisations
[32] Human Rights Council, Forty-ninth session, 28 February–1 April 2022, Agenda item 2 Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General, Promoting reconciliation, accountability and human rights in Sri Lanka, paragraphs 45 and 46.
a stay order on their implementation while the Supreme Court considers a fundamental rights petition against the regulations.[32]
Discussing the context of its most recent report, the United Nations High Commissioner for Human Rights comments that while President Ranil Wickremesinghe states that he is committed to combating corruption and establishing a new social justice commission to ensure that economic reforms benefited all sectors of society, there is uncertainty about his intentions:
At the same time, the Government has sent mixed signals that appear to reflect continuity with the past. A significant deficit remains in confidence and trust among the Government, the protest movement and broader civil society and calls for early elections have continued for a renewed democratic mandate. Many of the same officials remain in place, in particular in the security ministries, and the new administration has pursued a tougher security approach to the protests. The President declared a state of emergency and issued expanded emergency regulations that lapsed on 18 August.[33] Security forces used excessive force on 22 July 2022, to clear the protest camp, and on 18 August, to suppress a peaceful student protest. Scores of people involved in the protest movement have been arrested and detained, although the Government reported that many have been granted bail.[34]
[33] Sri Lanka, Emergency regulations No. 1 of 2022, Extraordinary Gazette No. 2289/07.
[34] Report of the Office of the United Nations High Commissioner for Human Rights on Situation of Human Rights in Sri Lanka (4 October 2022).

Overall, the Tribunal cannot discount as remote that the current situation in Sri Lanka would impact directly on the applicant if he was returned to Sri Lanka. Considered cumulatively, the Tribunal concludes that in the context of heightened tensions in Sri Lanka and continued use of provisions such as the PTA, there is a real chance that the applicant will be monitored and attract adverse attention involving questioning, arrest and detention, accusation of post- conflict separatism, mistreatment and potentially being held under the PTA.
For the above reasons, and considering the applicant’s circumstances individually and cumulatively, the Tribunal finds there is a real chance that the applicant will face treatment amounting to persecution involving serious harm for reasons of his actual and imputed pro-LTTE/anti-government political opinion, if returned to Sri Lanka.
As the perpetrators of the harm feared by the applicant are the Sri Lankan authorities, the Tribunal finds that state protection will not be available to the applicant.
The Tribunal accepts that the reasons for the feared persecution in the applicant’s case relate to characteristics that are fundamental to his conscience (his political opinion) such that he cannot be required to take reasonable steps to modify his behaviour to avoid a real chance of persecution.
The Tribunal accepts that the real chance of persecution relates to all areas of Sri Lanka. In this regard the Tribunal notes that DFAT reports that Sri Lankan security forces maintain effective control throughout Sri Lanka and individuals are unlikely to be able to relocate internally with anonymity. In particular, the Sri Lankan military, intelligence and police continue to maintain a high level of awareness of returnees.[35]
[35] DFAT Country Information Report Sri Lanka, 23 December 2021 [5.15].
Considering the evidence before it, the Tribunal finds that there is a real chance that the applicant would face threats to his life or liberty, significant physical harassment and significant ill-treatment if he were to return to Sri Lanka. The Tribunal is satisfied that such treatment would amount to serious harm under s 5J(4)(b) of the Act and that harm would be for reason of the applicant’s political opinion. The Tribunal is satisfied the applicant has a real chance of persecution involving serious harm, and that the harm the applicant fears involves systematic and discriminatory conduct as required by s 5J(4)(c).
Section 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.
In the applicant’s case, the applicant’s conduct in Australia forms part of the basis of his claims to be a refugee, such that s 5J(6) is relevant to the assessment of whether he has a ‘well-founded fear of persecution’. In response to the Tribunal’s concerns that the applicant’s involvement with the TRC in Australia was for the purpose of strengthening his claim to be a refugee and should therefore be disregarded in this consideration, the applicant stated that he commenced his involvement in the TRC for no other reason than to assist fellow Tamils, just as he has become a [Occupation 1] to help the community. As confirmed by supporting documentation, he stated that he commenced his involvement in 2015, and has continued to participate in TRC activities regularly, frequently and consistently, demonstrating long-term and genuine commitment. The Tribunal considered the applicant to be sincere. On this basis the Tribunal is satisfied that the applicant has not engaged in social and political activities in support of Tamil rights for the purpose of strengthening his claim to be a refugee.
For the reasons given above, the Tribunal is satisfied that the applicant has a well-founded fear of persecution. He is a person in respect of whom Australia has protection obligations as a refugee under s 36(2)(a).
Given this finding, it has been unnecessary to consider the other claims advanced by the applicant or that arise on the material before it.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Amanda Paxton
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 1196

13 February 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction