1730415 (Refugee)

[2022] AATA 1377

1730415 (Refugee) [2022] AATA 1377 (8 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1730415

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Luke Hardy

DATE:8 March 2022

PLACE OF DECISION:  Sydney

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

Statement made on 08 March 2022 at 2:21pm

CATCHWORDS

REFUGEE – Protection Visa – Sri Lanka – irregular maritime arrival – race – Tamils – young adult male Tamils – membership of a particular social group – illegal emigrants /former asylum seekers/returnees – political opinion – imputed pro-LTTE supporters – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 45AA, 48, 65, 499

Migration Regulations 1994, Schedule 2, r 2.08F

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 and Border Protection to refuse to grant the applicant a Temporary protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant arrived in Australia as an unauthorised maritime arrival (UMA) seeking protection in Australia [in] December 2011. He was interviewed by an officer of the former Department of Immigration (the Department) for a Protection Obligations Evaluation (POE) and later refused protection on 21 March 2012. He sought review by the Independent Protection Assessment Office which recommended on 19 May 2015 that he be enabled under the Act, through lifting of the bar under s.48 on onshore visa applications, to apply of a Protection (Class XA) visa.

3. The applicant applied for a Protection (Class XA) visa on 24 November 2015.

4. However, by operation of s 45AA of the Act and reg 2.08F of the Regulations, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa. Although the delegate refused the application as an application for a Protection (Class XA) visa, the effect of the Regulations is such that the application the Tribunal must consider is one for a Temporary Protection (Class XD) visa.

5. The delegate refused to grant the visa on 20 November 2017. The applicant sought review of this decision by the Tribunal, and the matter was constituted to me. I find that this is a valid application for review.

6. The applicant appeared before the Tribunal on 22 February 2022 to give evidence and present arguments. The applicant’s adviser attended the hearing, which was facilitated by an interpreter in the English-Tamil medium.

7. The hearing was held as an MS teams video hearing conforming with heath protocols introduced during the COVID-19 pandemic. I exercised the Tribunal’s discretion to do this determining it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant and his adviser. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and to avoiding undue delay to the matter were the hearing not to be conducted by video. I checked with the applicant and his adviser throughout the hearing to ensure that they had no reservations about proceeding in this way. No such concerns were expressed. I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. The applicant indicated that two people were available to give evidence in support of his application. However, it was established that both had already written supporting statements relating to local events that occurred in 2005 and 2006, during the Sri Lankan Civil War which ended in 2009. I put to the applicant that I accepted that these events had occurred and that I might have no questions for the potential witnesses, proposing then that I might not call them. The applicant, invited to comment, offered no objection and accepted that I would rely on the two statements and on the fact that the events described in them had occurred: namely there had been explosions near the applicant’s high school causing the armed forces at the time to regard the school and its students with suspicion.

9. For the purposes of this review, the applicant submitted a copy of the delegate’s decision in this matter, in which the his claims are described and other issues are raised, including some potentially adverse information which is discussed below.

   CRITERIA FOR A PROTECTION VISA

10. 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.

11. 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.

12. A person is a refugee if, in the case of a person who has a nationality, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).

13. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.  

14. 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

15. 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

    The issues

16. The key issue in this case is whether the applicant is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.

17. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

18. The BBC provides a useful chronology[1] of events in Sri Lanka covering the civil war between the Sri Lankan state and its Tamil separatists, detailing in particular the 2002 to 2008 ceasefire and its occasional breaches, of which the following is an edited extract:

    [1] “Sri Lanka profile – Timeline,” BBC News, 18 November 2019,

    1972 - Ceylon becomes a republic and changes its name to Sri Lanka. Buddhism is given primary place as the country's religion, further antagonising Tamil minority.

    1976 - Liberation Tigers of Tamil Eelam (LTTE) formed as tensions increase in Tamil-dominated areas of north and east.

    1977 - Separatist Tamil United Liberation Front (TULF) party wins all seats in Tamil areas. Anti-Tamil riots leave more than 100 dead.

    1983 - 13 soldiers killed in LTTE ambush, sparking anti-Tamil riots leading to the deaths of several hundred Tamils. Start of what Tigers call "First Eelam War"…

    1990 - Indian troops leave after getting bogged down in fighting in north. Violence between Sri Lankan army and separatists escalates. "Second Eelam War" begins …

    1995 - "Third Eelam War" begins when rebels sink naval craft.

    1995-2001 - War rages across north and east. Tigers bomb Sri Lanka's holiest Buddhist site. President Kumaratunga is wounded in a bomb attack. Suicide attack on the international airport destroys half the Sri Lankan Airlines fleet.

    2002 February - Government and Tamil Tiger rebels sign a Norwegian-mediated ceasefire.

    De-commissioning of weapons begins; the road linking the Jaffna peninsula with the rest of Sri Lanka reopens after 12 years; passenger flights to Jaffna resume. Government lifts ban on Tamil Tigers. Rebels drop demand for separate state.

    2003 - Tigers pull out of talks. Ceasefire holds ..

    2004 March - Renegade Tamil Tiger commander, known as Karuna, leads split in rebel movement and goes underground with his supporters. Tiger offensive regains control of the east …

    2005 August - State of emergency after foreign minister is killed by a suspected Tiger assassin.

    2005 November - Mahinda Rajapaksa, prime minister at the time, wins presidential elections. Most Tamils in areas controlled by the Tamil Tigers do not vote ...

    2006 April - A suicide bomber attacks the main military compound in Colombo, killing at least eight people. The military launch air strikes on Tamil Tiger targets.

    2006 August - Tamil Tiger rebels and government forces resume fighting in the north-east in worst clashes since 2002 ceasefire. Government steadily drives Tamil Tigers out of eastern strongholds over following year.

    2006 October - Peace talks fail in Geneva.

    2008 January - Government pulls out of 2002 ceasefire agreement, launches massive offensive …

    2009 January - Government troops capture the northern town of Kilinochchi, held for ten years by the Tamil Tigers as their administrative headquarters. President Mahinda Rajapakse calls it an unparalleled victory and urges the rebels to surrender ...

    2009 May - Government declares Tamil Tigers defeated after army forces overrun last patch of rebel-held territory in the northeast. Military says rebel leader Velupillai Prabhakaran was killed in the fighting. Tamil Tiger statement says the group will lay down its arms.

    2009 August - New Tamil Tiger leader Selvarasa Pathmanathan captured overseas by Sri Lankan authorities ...

    2010 January - President Mahinda Rajapaksa re-elected by a large margin.

    2010 April - President Rajapaksa's ruling coalition wins landslide victory in parliamentary elections.

    2010 September - Parliament approves a constitutional change allowing President Rajapaksa to seek unlimited number of terms

    2011 August - President Rajapaksa says his government will allow the expiry of state emergency laws which have been in place for most of the past 40 years.

    2012 March - UN Human Rights Council adopts a resolution urging Sri Lanka to investigate war crimes allegedly committed during the final phase of the decades-long conflict with Tamil Tiger rebels. Sri Lanka says the move usurps its sovereignty.

    2012 May - Former army chief and opposition presidential candidate Sarath Fonseka is freed after two and a half years in jail, under terms banning him from running for public office for seven years.

    2013 September - Tamil National Alliance opposition party wins first elections to semi-autonomous provincial council in the north, with 78% of the vote. Commonwealth observers say army intimidation compromised the vote's environment ...

    2015 January - Maithripala Sirisena defeats Mahinda Rajapaksa in presidential election, pledging accountability over alleged atrocities during the civil war.

    2015 September - Rajavarothiam Sampanthan becomes the first lawmaker from the ethnic Tamil minority in 32 years to lead the opposition in parliament.

    2016 June - Government acknowledges for the first time that some 65,000 people are missing from its 26-year war with the Tamil Tiger rebels and a Marxist insurrection in 1971.

    2017 January - Police clash with protesters demonstrating against a plan to evict villagers to make way for a mostly Chinese port and industrial zone near the port city of Hambantota.

    2018 October - Constitutional crisis as President Sirisena replaces Prime Minister Ranil Wickramasinghe with former president Mahinda Rajapaksa, and suspends parliament.

    2018 November-December - Constitutional Court rules that dissolution of parliament was illegal. Mahinda Rajapaksa fails to form a government that commands a parliamentary majority. Mr Wickramasinghe resumes office.

    2019 April - Jihadist suicide bombers attack churches and hotels on Easter Sunday, killing more than 350 people.

    2019 November - Gotabaya Rajapaksa, the younger brother of former president Mahinda Rajapaksa, wins the presidential election.

    2020 August - President Rajapaksa's SLPP party wins large majority in parliamentary elections.

19. The applicant’s own chronology indicates that he lived in Sri Lanka up until 2008 when he was able to fly to [Country 1] where he took up some study. He briefly visited [Country 2] and later returned to Sri Lanka in April 2010. In the same month, he departed Sri Lanka again, this time illegally by boat, and arrived in [Country 2]. He later travelled by boat to Australia, landing here in December 2011.

    Claims to the Department of Home Affairs (the Department) and to the IPAO

20. The applicant’s first contact with the former Immigration Department was in a letter written in [Country 2] on 19 October 2010 in which he sought asylum, citing an episode that occurred while he was at school in Jaffna when he and some other youths were detained by soldiers investigating some local bomb blasts. He indicated that this happened during the ceasefire, referred to above, in 2005. He said he and his entire family moved away from the Jaffna district, where they were registered residents, for fear of their safety to a place called [location deleted] in the Mulllaitivu district. He also claimed he was pressed to join the Tamil Tigers but avoided having to do so by hiding in a relative’s house. He said his family soon moved to [a location] in the Vanni district, until the war concluded, ending up in [an] IDP (internally displaced persons’) camp with several thousands of others. I note that it was not uncommon for people with registered residence in Jaffna to find themselves displaced by the war in the second half of the 2000s.

21. The applicant claimed he then escaped by boat in April 2010 to [Country 2]. He claimed that in the event of returning to Sri Lanka he feared not having enough security to start a family. He claimed that because he left Sri Lanka without a passport he would be suspected of being a Tamil Tiger member or affiliate. He asked for Australia to intervene and grant him asylum. He said he had already registered with UNHCR.

22. The applicant wrote this letter during his second sojourn in [Country 2]. In passing, I note that Australia’s policies towards boat people has been to discourage them from travelling here unlawfully, preferring them to apply for resettlement whilst abroad. In this case, the Australian government wrote back to the applicant and advised him to contact UNHCR to ask them to refer him for resettlement in Australia. It is easy to conceive that a sense of futility contributed the applicant’s subsequent action. He evidently sought finds from a relative abroad and found a place on a boat bound for Australia.

23. Having arrived in Australia unlawfully in 2011, the applicant attended an Immigration Compliance interview during which he indicated that he wished to apply for asylum in Australia. He described the events near his school and mentioned his family home in Jaffna having been near a military camp and an EPDP camp. I note that the EPDP is the Eelam People's Democratic Party, is a political party and pro-government paramilitary organisation in Sri Lanka. The applicant said he and other youths  were briefly detained and investigated by the EPDP and the military in 2006 after a person unknown fired shots towards and into the camp. He said that youths were routinely rounded up and interrogated in those days. The applicant also evidently said that upon his return to Sri Lanka in April 2010, the Sri Lankan Criminal Investigation Department (CID) confiscated the passport he had used to travel to, and study in, [Country 1].

24. The applicant’s claims were considered by an Immigration officer in what was then called a Protection Obligations evaluation:

    ·The claimant's written claims are set out in the client file [number] ff 94-98, also being contained in a letter to DIAC in 2010 and ff 23-25 and may be summarised as follows:

    ·He was born in [Jaffna] and the family lived there until 1995.

    ·His family was displaced by the civil war in 1995, moving between several locations in Vavuniya. In 2003 they returned to Jaffna where the claimant continued his secondar education.

    ·During 2000 to 2003 the claimant was routinely abused and intimidated by Sri Lankan Army (SLA) and the police, as were his friends and colleagues at school.

    ·On return to Jaffna in 2003, the family who had rented their house, supporters of the EPDP (Eelam People's Democratic Party - a political party with an associated militia), were upset that they had to vacate the house and made false accusations of LTTE sympathy of the claimant's family. The claimant was [age] at this time. On presentation of documents showing the family's movements while displaced, the SLA investigators were satisfied and the matter lapsed However the claimant states that this enmity influenced later events.

    ·During 2005, while the claimant attended [school], a bomb was thrown from within the school, at the SLA. The claimant was assaulted on the street by the SLA looking for retribution and suffered serious [injuries].

    ·In July 2006 the claimant was arrested along with large numbers of others after an attack on the EPDP military camp in the claimant's district. He was humiliated and beaten and had to pay a ransom to be released. Upon release he went to stay with an aunt in the Vanni to avoid further trouble. While he was there (and unable to return due to the war and road closures) hi parents untruthfully declared him to be overseas on their family registration card.

    ·The claimant was able to leave Vanni in 2008 and planned to go home. On the way he passed through [a checkpoint], advising the SLA of his recent whereabouts and plans to go home. He was allowed to proceed but was delayed in getting back to Jaffna, going instead to Negombo to an uncle. He was advised by his parents that the SLA had visited his home. It is the claimant's understanding that the false recording of his whereabouts is "abroad" on the family card during his time in Vanni had created a suspicion as to his true activities in that period.

    ·On this basis the claimant decided not to return to Jaffna but made arrangements to go to [Country 1] in September 2008, after obtaining a passport through an agent and making an unsuccessful visa application to India. The claimant remained in [Country 1] until April 2010 when his parents advised he should be able to safely return home. In his absence the police had made more enquiries about his whereabouts but this had ceased after a few months.

    ·On arrival at Colombo airport the claimant was questioned by immigration, CID and EPDP officers. The authorities made contact with local police in his home town about previous contact with army and police. Upon an approach by his uncle from Negombo, the claimant was released but his passport was confiscated. The attitude of the authorities was threatening and the claimant feared police in Jaffna and elsewhere would be alerted to detain him.

    ·The claimant fears being persecuted if he returns to Sri Lanka for multiple reasons:

    §The false information on his family card stating he was in India when he was in Vanni creates a suspicion that he was working with the LTTE in that period. He fears he will be detained, tortured and killed by the SLA and EPDP.

    §The EPDP members who were disgruntled by his family's return to their home in 2003 retain a grudge and the claimant fears they will continue to make false allegations about him to the SLA.

    §He is a young, single male. He is a Tamil.

    ·The claimant submitted various country information reports, mostly sourced from tamilwin.org and Tamilnet.com, in support of his claims for protection ...

    [Tribunal’s highlight in bold]

1. On 21 March 2012, the Department declined, on the Minister’s behalf to lift the s.48 bar on “unauthorised maritime arrivals” applying for protection visas. The applicant then sought review by the Independent Protection Assessment Office (IPAO).

2. The applicant’s claims to the IPAO are summarised in that office’s recommendation to the Minister:

   ·He said that his family moved from Jaffna to Vavuniya in 1995 due to risk of war. They lived initially in a refugee camp and then moved outside the camp, where they remained until 2003 Even though they were in Vavuniya between 2000 and 2003, they witnessed bloodshed and fighting in Vavuniya. [The applicant] stated that he was often beaten and verbally abused by the SLA and the police with other young Tamil males. In 2003 they returned to their home in Jaffna. They gave notice' to the Tamil tenants of their home and this triggered a complaint by that family (who had links to the EPDP) that he and his family were LTTE supporters returning from Vanni. After an investigation, his family established that this allegation was not true and resumed life in their home village.

   ·In 2005, conflict took place in the area. A bomb was thrown from within the school [the applicant] attended towards the army. He, along with other Tamil students, was stopped and beaten by the army. [The applicant] sustained a serious injury [during] this beating.

   ·In July 2006 the EPDP camp near their home was bombed and shootings took place. People from the area were gathered together and questioned. He was arrested and taken to [an] army camp, where he was forced to remove his clothes and beaten with other young Tamil men. The next day his father paid 100,000 rupees to have him released. If not, he would have been sent to the CID. Immediately on release, he travelled to his aunt's home in Vanni to hide.

   ·At the end of 2006, his parents told the army during a check that he was in India. [The applicant] remained in Vanni until 2008 when he was able to make his way home to his family. He was stopped [an] army checkpoint. He gave information about where he had been and where he was going and this was entered into a computer. He was allowed to travel on. He travelled via Nagombo as the direct route was closed. However whilst there he spoke to his parents who told him that they had given different information to the army and this had been cross checked already and the Army had been to his home looking for him. The family was fearful for his wellbeing and arrangements were made for him to leave the country. A visa application to India was refused so he travelled to [Country 1], where he applied for and was granted a student visa. He stayed in [Country 1] until he had completed his studies, and until the conflict had ended. In 2010 he decided to return home. However on arriving in Sri Lanka, his passport was confiscated and he was detained by Sri Lankan immigration officers and interrogated. The CID and EPDP were also present and involved in his questioning. He gave them information about his being in [Country 1] and in Vanni prior to that. The authorities made enquiries of his home town to ascertain any previous encounters with authorities. In the meantime, his uncle had come and been waiting for more than 4 hours for him. He contacted the passport agent they had used in 2008 and he made a call to the authorities. He was released, but his passport was confiscated, and before he left they told him that they could not be blamed for any consequences he suffers after being released.'

   ·After release, he went with his uncle to Negombo. Soon after his release, the army went to his parent's home and made it clear that they knew he had been released and was expected home. It was evident to him that the authorities were pursuing him and he feared for his safety. His family made arrangements for him to flee the country.

   ·He fears being killed by the Sri Lankan police and the Sri Lankan authorities including the EPDP, because they believe he is a supporter or a member of the LTTE. They believe this because he is a young male who has lived in Vanni, and because he is a Tamil male. He has been detained and interrogated in the past and accused of being a supporter or member of the LTTE. He has distinctive Tamil features and his name is easily recognisable as a Tamil. If he returns he must register his name when he arrives in a new area. The risk to him persists all over Sri Lanka.

   [Tribunal’s highlight in bold]

3. The IPAO recommended on 19 May 2014 that the Minister lift the s48 bar and allow him to lodge a protection visa application. The IPAO recommendation specifically referred to the confiscation of the applicant’s passport in its reasons:

   I note that the authorities have ascertained the personal inconsistencies' in his residential details in the past and sought to question him about his involvement during the conflict. They have confiscated his passport, so will have a record of his previous experience on return in 2010 and the fact that he disappeared' thereafter.

4. The s.48 bar was lifted and the applicant lodged a protection visa application. Of particular concern to the case officer acting as the Minister’s delegate in this matter, according to the decision record, was the applicant having previously claimed that his passport had been confiscated, variously, by the Sri Lankan CID or at gunpoint by “unknown, unidentified youths” in Jaffna, whereas in his protection visa application dated 22 December 2015, he said that his passport had been “lost” having been taken from him by an agent (or travel broker) in [Country 2].

5. The delegate wrote to the applicant on 10 January 2017 inviting him to comment on this potentially adverse information, advising him that if the information were not resolved, it might lead the delegate to find that he was not of significant interest to Sri Lankan authorities. In a written response, dated 15 February 2017 through his adviser, the applicant said he had only ever had one travel document that was confiscated by Sri Lankan authorities at Colombo airport. The applicant said that the reference to the passport having been taken from him by armed youths came from a justice of the peace in Sri Lanka who had been too scared to accuse Sri Lankan authorities of confiscating it. It still stands that the applicant submitted the false information provided by the JP.

6. The delegate, who interviewed the applicant on 30 October 2017, asked him for details about the fate of his passport. In response, the applicant said that during his time in [Country 1] he contacted a people smuggler in [Country 2] with a view to obtaining a visa for entry into [Country 3]. He said he paid money and handed over his passport to this person who cheated him and absconded with both. He said he then approached the Sri Lankan authorities who duly issued him a single-use travel document to enable him to return to Sri Lanka. When confronted with the extent to which this contradicted his claim about having only ever held one travel document, being the passport confiscated by the Sri Lankan authorities at Colombo airport, the applicant evidently said he could not recall all the details of information he ah earlier provided.

7. The delegate put to the applicant that the discrepancy in his claims called into question his claim to the effect that the authorities singled him out and intimidated him about their impunity in the event of his being harmed after release from the airport. In reply, the applicant said he had forgotten to tell his adviser about the second trave; document, the single-use one, when formulating his response to the delegate’s 10 January 2017 adverse information disclosure. He also told the delegate that the authorities took his single-use travel document from him deliberately to prevent him from applying for a new passport.  

8. In a further statement to the Department, the applicant’s adviser[wrote]:

   We note that it was contended that the applicant has provided differing information with respect to his passport history and therefore doubts may be raised with respect to his credibility. The Applicant wishes to clarify that he obtained his passport in Sri Lanka with the assistance of an agent. The Applicant instructs that he travelled to [Country 1] and [Country 2] on that passport.

   While abroad, the applicant tried to make arrangements to flee to [Country 3], as he believed that if he remained in [Country 1] or [Country 2], he would be forced to go back to Sri Lanka and therefore … be at risk of being subjected to serious harm. While in [Country 2], the applicant instructs that he provided his passport and money to a people smuggler who advised he would assist him travel to [Country 3], the smuggler however did not assist the applicant rather took his passport and money without assisting him further. Accordingly, the applicant was required to obtain a travel document, which he refers to as a passport which was a valid for one day to return to Sri Lanka, as he felt he could not remain in [Country 2] and had hoped the situation in Sri Lanka had improved. As such, essentially the applicant has only had one passport however he used a subsequent travel document to return to Sri Lanka.

   The Applicant instructs that the information that he has provided previously about the mistreatment he suffered upon re-entry to Sri Lanka is true and correct. He instructs that he was treated with a high level of suspicion upon return to Sri Lanka and therefore was subjected to interrogation by the Sri Lankan Authorities. While the applicant, wanted to keep the travel document to assist him obtain a subsequent passport, given he believed it would be easier to obtain another passport if he was able to present the travel document. the Sri Lankan Authorities would not allow him to keep it rather confiscated from him.

   The Applicant instructs that he did not initially disclose that he provided his passport to a smuggler who he wanted him to assist him to travel to [Country 3], as he was concerned that this would result in him being looked upon poorly by the Australian Authorities. He instructs that many smugglers who facilitate travel into Europe obtain false passports and visas to assist individuals with their travel. It was the applicant's understanding it was an offence to use a false passport and therefore he was concerned if the Australian Authorities believed he had previously attempted to travel to [Country 3] through the assistance of the smuggler, it may be believed he had used fraudulent immigration documents, although he has not. Given these matters, the applicant was fearful to fully disclose the circumstances surrounding his passports. He instructs that given he was questioned in great detail about his passport history at his most recent interview, he was able to explain the situation about his passport history. The Applicant maintains the information contained within his response dated 14th February 2017 and at his most recent letter with respect to the letter from [the Sri Lankan JP] is true and correct.

   It is our submission that the applicant's explanations are very plausible. We note that often protection visa applicants are fearful that they will face issues if they fully disclose information about their past to the Department in Australia and therefore conceal information due to fear. We respectfully submit that the case law referred to in our previous submission with respect to the assessment of credibility, be taken into consideration in the assessment of the applicants matter. Further, we submit that essentially the applicant did only have one passport, the subsequent travel document was issued for the purpose of his return to Sri Lanka and therefore it is plausible lie has had difficult[y] trying to explain his passport history.

   Evidence to the Tribunal

9. At the Tribunal hearing, I asked the applicant about his family in Sri Lanka. He said his parents are living back in Jaffna again. He said he used to have a sister who died in 2005; he did not suggest her death was related to any of the circumstances described in his substantive claims. He said that in 2009 when the war ended his father was around [age] and he himself was about [age], making him about [age] now.

10. The applicant said his passport was issued in 2008. I put to him that he was able to obtain a passport notwithstanding the events and investigations affecting him up until then, and he said that he paid money to an agent who was able to ensure somehow that he faced no problems at the airport during departure. I asked him how he could be sure that his agent did not just pocket his money, making no special arrangements at the airport, and he said in reply that he was also helped by his uncle. I asked him if he believed he would not have obtained a passport and secured his exit from Sri Lanka without paying a bribe and he said he did. When I asked why, the applicant referred me to his having moved to Vanni without proper authorisation while his parents lied to authorities visiting them at the time about his having gone to live in India. I asked him to explain more clearly how, in the circumstances, any of this would have prevented him from obtaining a passport through regular channels. In response, he said he was interrogated for half an hour in Vanni after the authorities had made enquiries about him in Jaffna. He said the authorities harassed his parents. He indicated that the local authorities kept an eye on his parents until the war ended in 2009. None of this explained to me how the disbursement of money worked to ensure that the applicant, a Tamil then not yet [age], and therefore of fighting age, and evidently a prime age for attracting suspicions of LTTE-affiliations, was able to leave Sri Lanka as easily as he appears to have done, at the height of the civil war.

11. I asked the applicant if he had ever previously claimed to have paid a bribe part of which went to officials at the airport and he said he had done. However, he did not succeed in pointing me to any stage in his migration history when he had actually described this particular means of obtaining a passport and then getting safely through airport security.

12. I asked the applicant to tell me what happened after the people smuggler in [Country 2] made off with his passport. He said he told the Sri Lankan authorities he wanted to go back to Sri Lanka whereupon they issued him with a single-use travel document. This took about two weeks while the authorities in Sri Lanka checked his identity. He said he was merely required to fil out a form and was not interviewed at any length for the document. He said he had to provide his lost passport number and was merely asked a few questions to help establish his identity.

13. I put to the applicant that it did not seem unusual in the claimed circumstances that he was quickly issued with a one-way, single-use travel document. In reply, he said “I don’t know.” He said he arranged for his uncle and aunt to come to the airport to meet his arrival and take him home. He said he was taken to a CID office when he arrived there. He said he was interviewed for three or four hours and then allowed to go, upon the attendance of his aunt and uncle. I put to him that had the CID any real concerns about him they would not have released him. In reply, he said they had to release him because “auntie was waiting outside.” I put to him that in those times it would be hard to conceive that the CID he described, on the watch for remnant LTTE activists, would have been afraid of someone’s aunt. In reply, he said the CID officers knew they could not do anything to him with his aunt just outside the office. I put to him that this seemed implausible. It struck me as being unlikely that he would have been released if he had been suspected of fitting any of the CID’s profiles of concern, aunt of no aunt. He said that upon releasing him the CID would have continued to monitor him. I put to him that would not be surprising given the times just after the end of the war. The applicant then said he would have caused alarm to the CID because, although he gave a Jaffna address, he did not proceed there but, rather, went to stay in Negombo with his uncle and aunt. I note that the situation of safe return to Jaffna by the many thousands of IDPs at the time was still in flux at that time. The applicant did not suggest that he was bailed up by any authorities for failing to proceed home from Negombo.

14. The applicant made a number of generalisations about what certain people had the power to do: he said the armed forces can torture people and the CID monitors people and the new president Gotabhaya Rajapaksa can do anything.

15. I asked the applicant why Sri Lankan authorities today, some thirteen years after his previous return, would be concerned about his having relocated to Vanni before his first trip abroad or his having failed to return to Jaffna immediately after release to his aunt and uncle from Negombo. In reply, he said that his experience of past pressure convinced him that he would still be harmed.

16. I invited the applicant to talk about the delegate’s concern about the evidently false information about his passport having been confiscated. In reply, the applicant said he had mentioned the “one-day” travel document, but he did not specify when or where he had mentioned it before the delegate drew it to his attention; perhaps he had indicated it in his protection visa application concurrent with the disclosure about the [Country 2] people smuggler having made off with his passport. The applicant went on to say he had not been careful enough in his claims to differentiate between “passport” and “travel document.”

17. I then asked the applicant why, in any case, he had characterised the confiscation of his travel document as a hostile action: it would only ever have been the property of the issuing authority and it had been spent in its one use; the authorities would have been within their rights to take it, as a matter of course, back upon the completion of his use of it. In reply, the applicant said that he needed to keep it in order to get a new passport. I put to him that it was not true that he needed to possess this spent travel document as an essential prerequisite for obtaining a new passport. Photocopies of the biodata pages of passports are only required if those passports are current.[2] A passport reported as “lost” would logically have been cancelled[3] and no longer be regarded as “current.” I put to the applicant that had he made an application for a new passport in Sri Lanka, the issuing authority would likely have a record of his previous passport having been reported as lost (in [Country 2]) and of his one-way travel document having been used and resumed. Attention would the be given to the other requirements: digital photo with photo studio acknowledgement; original birth certificate of the applicant with a photocopy; original national identity card of the applicant with a photocopy; marriage certificate with a photocopy where applicable; educational certificate related to the applicant’s profession and an acceptable document to his or her your service and photocopies thereof.[4]

    [2]

    [3]

    [4] >

    The applicant said he was not aware that the travel document was not his property. He said the authorities who took it did not give him proper information when they took it from him. I sked him for more detail about what was said in relation to the travel document when the authorities resumed possession of it, and he said they told his uncle that they would not be responsible for anything that might happen to him. I put to him that this did not appear to have anything to do with the travel document. He said his understanding was that the travel document was his property. When I put to him that he misunderstood, he said he was not aware until now. I put to him that on the evidence before me that nothing was taken from him that he had a right to use. This import of this was that taking back the travel document was not a hostile or discriminatory action. The applicant said that at the time he assumed that the authorities did not want him to leave Sri Lanka again. I put to him that he might merely have inferred that. He said he did so due to the authorities having visited his parents in Jaffna and having asked his whereabouts when he was still hiding or displaced in the Vanni.

1. Prior to the hearing, the applicant submitted evidence of his having attended a Tamil event in [NSW] to commemorate “Heroes’ Day” on 27 November 2021. He argued that it was not impossible that his attendance at that memorial gathering had been noted by informants or spies and reported to Sri Lankan authorities, with the possible outcome that he might be further suspected of pro-LTTE affiliations. The claim about his having attended this gathering is corroborated so I accept that he engaged in the conduct of attending it. Having regard to s5J(6) of the Act (see attachment below), I proceeded to ask questions going to his motivations.

2. The applicant mentioned that the Heroes’ Day commemoration is an annual event. Noting that he had been in Australia for several years I asked him how many times he had attended this event. He said this was the first time and I asked him why he had not attended before. He said he had not previously attended because he did not like the atmosphere or attitude that manifested amongst attendees on the occasion: he said that the more established Tamil residents of Sydney “looked down on us.” It was hard to understand how he had developed this impression if he had not even previously attended. I asked him how anyone would know how established he was in in Sydney if, just once a year, he just gathered with the crowd on the day, and in reply he said that when established Tamils see “new people” they ask all sorts of questions. On this evidence, it had not necessarily been a fear of being spied on by Sri Lankan government informers that had kept him away. I asked him if he had not attended these annual gatherings because he feared being spied on by pro-government informants and he said, “Yes.” I asked him to explain why in the claimed circumstances he did attend in 2021. In reply, he said that in November 2021 he was staying with a friend who pressed him to attend: he said he had been unable to refuse. In this way, he indicated that he attended unwillingly, and so I asked him if that was indeed the case. In reply, he said his friend convinced him that the gathering was to be conducted under Covid-19 protocols that would stop attendees asking him questions. I asked him if he might not merely be engaging in bald speculation about potential identification by pro-government spies, and he said he had heard that people attending the gathering have experienced that kind of thing. I asked the applicant to confirm if strict Covid-19 protocols had been observed on 27 November 2021 and he said they were. I put to him that if strict protocols were followed people would also have been wearing face-masks, the corollary being that they would be hard to identify. In response, the applicant said, “I can’t comment.” I put to the applicant that in light of his response, I might infer that people would have been hard to identify on the one occasion he had reluctantly attended the Heroes’ Day commemoration In response, he said that even if people wear  face-masks, other people can  “find out things.” Again, he appeared to be baldly speculating here.

3. At least implicit in the applicant’s claims are the fact that his next return to Sri Lanka would be his second without a current valid passport: another one-way, single-use travel document might be sought in order to remove him from Australia. However, the applicant’s previous return to Sri Lanka did not evidently involve an absence that had commenced with an act of illegal departure; hence the next return to the country would be his first to follow an illegal departure. The applicant has also indicated that he will attract cumulative suspicion given how long he has been absent from Sri Lanka and given that he was a young man of fighting age when he first departed Sri Lanka and not significantly older when he left illegally in 2010. I have considered all these implicit and/or briefly outlined claims.

4. Invited to make closing comments, the applicant said he will have attracted bad karma for not having stayed in Sri Lanka to look after his parents and hence would not have stayed away without a good reason. He said he works hard in Australia and pays his taxes as would a good “citizen” here.

5. The adviser asked for seven days to allow for the presentation of further submissions and this request was granted.

   Post-hearing submission

6. On 2 March 2022, the Tribunal received a further submission, of which the following is an extract:

   4. The Applicant was questioned whether he advised the Department previously whether he had to pay a bribe to depart Sri Lanka. We note that at the applicant’s Protection Obligations Evaluation Interview held on 8 February 2012, the applicant stated, “I gave money to the agent who helped me through the airport”.

   Given this claim was raised early in the applicant’s immigration process it cannot be found it was not raised previously and it should be accepted as credible.

   5. It was contended that the agent who assisted the applicant depart Sri Lanka may have pocketed the money he paid them. With respect, we submit that without evidence of the agent doing this, it must be accepted that the agent used the money to assist the applicant depart the country. It would be unreasonable to find to the contrary.

   6. The Tribunal noted that the applicant previously suggested that the treatment by the Sri Lankan Authorities towards him when he returned to Sri Lanka in 2010 was hostile, however the Tribunal was of the view the Authorities wanted to reclaim the travel document which belonged to them. We submit that in assessing the applicant’s fear of the Authorities upon return to Sri Lanka it is imperative to take into consideration the applicant’s past experience with the Sri Lankan Authorities and his lack of trust in the Authorities due to his experiences as a young Tamil man during the Civil War in Sri Lanka. We wish to reiterate that the applicant was questioned for three or four hours upon return to Sri Lanka, and during this time his previous dealings with the Authorities were raised, his document was confiscated, and he was released only after his uncle intervened. This incident was understandable very distressing for the applicant and made him very fearful of the Sri Lankan Authorities. The Applicant was very scared he would face further issues and therefore did not return to Jaffna rather fled Sri Lanka.

   7. It was contended that if the applicant was now to return to Sri Lanka, he would be questioned and released similar to his last return to Sri Lanka. With respect, we submit that if the applicant was to now return to Sri Lanka, he would be at an increased risk of harm. We reiterate that if the applicant had returned to his home address in Jaffna previously, it is likely he would have faced further issues from the Authorities. The fact he did not return to this address [and] rather shortly thereafter fled Sri Lanka by boat and has remained in Australia for […] over ten years is likely to lead the Sri Lankan Authorities treating him with a high level of suspicion and subjecting him to serious and significant harm. Country information outlined in our pre-hearing submission suggests that the Sri Lankan Authorities continue to rely on torture ...

   8. It was noted that the applicant’s parents have remained in Sri Lanka. With respect, we submit that no adverse inference should be drawn from the fact they have remained. The profile of the applicant’s parents differs from the applicant and given his personal circumstances; he is at an increased risk of harm in comparison to his parents. Nonetheless, we note the applicant has explained that his parent has continued to face issues in Sri Lanka and have been harassed about his whereabouts. The Applicant instructs that whenever his parents need to deal with the Authorities, for example to undergo a COVID test, given he is listed on their family registration certificate they are questioned by the Authorities about his whereabouts. We note the applicant attempted to explain this at his Hearing.

   9. It is our respectful submission that the situation in Sri Lanka for Tamil males from the North who have had previous dealings with the Sri Lankan Authorities and have fled the country continues to remain precarious. It was noted by the Tribunal that records become less significant over time, however we submit that the applicant’s prolonged absence from Sri Lanka is likely to lead the Authorities to question his motives for remaining abroad and thus enhances his risk profile.

   10. We wish to reiterate that the Applicant’s fear of harm due to his race and imputed political opinion is multifaceted and the totality of his circumstances need to be considered in the assessment of his matter. We submit that the applicant’s profile emanates from the fact he was previously suspected of being involved with the LTTE given his age, race, gender, area of origin, the school he attended and inconsistent information provided about his whereabouts. The fact that he has remained abroad for a prolonged period after fleeing illegally shortly after returning previously and has been involved in the Tamil diaspora are all factors that enhance his risk profile. Due to these reasons both individually and cumulatively, we submit that it is highly likely that the applicant would be imputed with pro-LTTE sentiments and be at risk of being imprisoned, interrogated, and harmed upon return to Sri Lanka.

   11. Country information referred to in our pre-hearing submission indicates that the Sri Lankan Authorities are notoriously known for subjecting individuals who are suspected of being affiliates of the LTTE to serious harm. Given the applicant’s personal circumstances and the situation in Sri Lanka, we submit that it cannot be discounted that the applicant would be at a real risk of serious harm upon return to Sri Lanka.

   12. It was contended that given masks were being worn at the time of the Hero’s Day commemoration his presence may not be known. With respect, we submit that a face mask does not hide a person’s identity and therefore it cannot be found that the applicant’s identity would have been concealed by the mask. With respect, we submit that it should be found that the Sri Lankan Authorities may be aware of the applicant’s attendance and therefore his support of this event may enhance his risk profile upon return to Sri Lanka.

7. I have noted all of the points made in this submission. In particular, I note the reference to the applicant having mentioned in his Compliance interview that he paid his agent to ensure he passed safely through the airport during his departure from Sri Lanka in 2008. The evidence of this arrangement and how it worked still strikes me as vague. I also note, in particular, the reference to the interrogation of the applicant on his return to Sri Lanka having somehow ended due to the intervention of his uncle. That is not my own understanding of the applicant’s evidence, the applicant himself having said the authorities let hm go because they knew is auntie and uncle were outside and were loath to detain him while they were there.

   Independent country information

8. I have had regard to the following information found in DFAT’s Country Information Report: Sri Lanka, published on 23 December 2021:

   Monitoring of former LTTE members

   3.50 Some Tamils with actual or imputed LTTE links (including those who fought for the LTTE or were part of its civilian administration) continue to report police monitoring and harassment. Multiple sources in the north told DFAT that former LTTE members, including those considered low-profile, are monitored to guard against the LTTE’s re-emergence. Testimonies provided to ITJP show that such harassment can include: frequent visits by police, visits to family members, threats and seizure of mobile devices.

   3.51 Local sources also claimed the authorities – usually undercover police officers or intelligence agents – sometimes used more subtle methods, for example inviting individuals to tea in public places and asking questions about their activities. Such questioning did not involve violence. Telephone calls were also common. Some sources claimed questioning was sometimes indirect, and involved questioning the neighbours of suspected former LTTE members. Sources told DFAT that monitoring of former LTTE members was less extensive in the Eastern Province, insofar as many there had defected during the latter years of the war and aligned with the Government as part of the Karuna Group/TMVP ...

   3.52 DFAT assesses that, while they may be monitored, Tamils with former links to the LTTE, and who are not politically active, are generally able to lead their lives without concern for their security as a result of their past association with the LTTE.

   Former LTTE members living outside Sri Lanka

   3.53 At least one million Sri Lankan Tamils live outside Sri Lanka, mostly in Canada, Europe (with large communities in the UK and France), Australia and India. Members of the Sri Lankan Tamil diaspora may be citizens or legal residents of those countries, or dual nationals. Some members of the Tamil diaspora return to Sri Lanka to visit family members, for holidays and for business. Remittances from the Tamil diaspora provide an important source of income for family and community members in Sri Lanka.

   3.54 Some members of the Tamil diaspora played a central role during the war, as a source of funding, weapons and other material support for the LTTE, and as political advocates for an independent Tamil state. Some Tamil diaspora groups continue to hold public demonstrations in their countries of residence for an independent Tamil state. High-profile leaders of pro-LTTE diaspora groups, particularly diaspora groups banned under Sri Lankan law, may come to the attention of Sri Lankan authorities because of their participation in such demonstrations. The Sri Lankan Government continues to assess that elements of the Tamil diaspora remain committed to a separate Tamil state. The UK Upper Tribunal in its May 2021 ruling on Tamils engaged in activities in the UK found that a range of political activities such as ‘attending  meetings and demonstrations, holding flags or banners displaying the LTTE emblem, attendance at commemorative events, meaningful fundraising, any presence on social media, signing petitions’ may be perceived by the Government of Sri Lanka as threatening and it may trigger official harassment upon return.

   3.55 In March 2021, the Sri Lankan Government proscribed a number of Tamil diaspora groups including the Australian Tamil Congress and the Tamil Youth Organisation (Australia), as well as a number of individuals based in Australia, the UK, Germany, Italy, Malaysia and several other countries. The Australian Tamil Congress and the Tamil Youth Organisation are not proscribed in Australia, while the LTTE remains a proscribed organisation in Australia.

   3.56 Approximately 95,000 Sri Lankan Tamils live as refugees in Tamil Nadu, India ...

   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 ...

   TREATMENT OF RETURNEES

   Exit and Entry Procedures

   5.17      Unsuccessful asylum seekers, both those subject to removal or departing voluntarily, are returned to Sri Lanka either using commercial or charter flights. In some cases, they may be accompanied by security escorts. On arrival in Colombo, returnees will be presented to Sri Lankan Immigration where they will be interviewed by the Chief Immigration Officer. Depending on the circumstances of their departure from Sri Lanka and their personal history, they may be interviewed by other agencies including CID, Sri Lankan State Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI). These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Those who have departed illegally will be referred to CID at the airport and charged accordingly. Once charged they are taken to the courts at Negombo where they are bailed and released.

   5.18      DFAT is not aware of returnees in 2021 being detained for matters other than illegal departure (such as, for former membership of the LTTE). However, due to COVID-19, returnees have been returned to Sri Lanka in smaller numbers overall than in previous years. According to the IOM, in 2021 up to September, there had been 107 returnees, 19 of these from Australia. Local sources also report that Tamils overseas are much less likely to return voluntarily to Sri Lanka under the current Government.

   5.19      The IOM meets Australian-assisted voluntary returnees (i.e. not deportees) after immigration clearance at the airport and provides some cash and onward transportation assistance, along with legal assistance provided by the Sri Lankan Legal Aid Commission for those charged with illegal departure. Prior to departure from Australia, Australian Border Force provides removed returnees with cash to assist their return.

   5.20      For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.

   Offences under the Immigrants and Emigrants Act

   5.21      The Immigrants and Emigrants Act (1948) (the I&E Act) governs exit from and entry to Sri Lanka. Returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the I&E Act. Sections 34 and 35 (a) of the I&E Act make it an offence, respectively, to depart Sri Lanka other than via an approved port of departure, such as a seaport or airport, and/or without a valid passport. Returnees who departed Sri Lanka legally are not required to face a court, as no offence under the I&E Act applies. Sri Lanka has a mature people smuggling industry. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine, though DFAT is unaware of a prison sentence being given for illegal departure by itself. Facilitators or organisers of people smuggling ventures, including captains and their crew, are charged with more serious offences and typically refused bail.

   5.22      Those charged are required to appear in court in the location where the matter was first heard, reportedly Negombo Courts, near the airport, which involves legal and transport costs. While the frequency of court appearances depends on the magistrate, DFAT understands that most individuals charged under the I&E Act appear in court every 3-6 months, regardless of their plea, for bail hearings. In addition to their own court hearings, those charged may be summonsed as witnesses in cases against the facilitators or organisers of people smuggling ventures. The cases of those charged with illegal departure may take years to resolve, requiring on-going court appearances (and illegal departees have no reasonable prospect of a defence). It is unclear to DFAT why such cases take so long. One source suggested that cases are taken forward in court only when all members of a people smuggling venture have been located; while another local source suggested it was simply due to the workings of the Sri Lankan justice system. For many returnees, this means they are subject to the slow processes of the Sri Lankan legal system; some returnees told DFAT that it was difficult and stressful having to return periodically to Colombo for a further hearing in a case where they were uncertain of the outcome.

   5.23      While those convicted of the offence of illegal departure may theoretically face a custodial sentence, in practice, local sources suggest, a fine is always imposed and typically this fine is LKR 50,000 - 200,000 (AUD350-1400). Sources suggest those who are unable to pay the fine are permitted to pay in instalments but, if still unable, may be imprisoned for 14 days.

   5.24      The severity of the fine for those charged under the I&E Act does not necessarily increase for those who have departed Sri Lanka illegally on more than one occasion. DFAT notes that, while the fines issued for passengers of people smuggling ventures are often low, the cumulative costs associated with regular court appearances over protracted lengths of time can be high. Anecdotal evidence suggests there is an acceptance within the Tamil community that illegal maritime ventures to Australia in search of asylum would be futile at this point in time ...

   5.26      DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure.

   Conditions for Returnees

   5.27      Between 2010-11 and 2018-19, 3,716 Sri Lankan nationals returned from the Australian community or were removed from Australian onshore immigration detention centres to their country of origin or a third country. Between 2002 and September 2021, the IOM has facilitated the return of 876 Sri Lankans from Australia. Many others returned from the US, Canada, the UK and other European countries. Most returnees are Tamil. Although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin and they have existing family links, or because of the relatively lower cost of living compared to the south.

   5.28      Refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. Most returnees have incurred significant expenses or debt to undertake their outward journey. Some voluntary returnees receive reintegration assistance in the form of transport and livelihood support upon return to Sri Lanka from the Government, UN agencies and NGOs, but this requires a returnee to meet strict eligibility guidelines and is minimal. Failed asylum seekers receive limited reintegration assistance. Many returnees have difficulty finding suitable employment and reliable housing on return. Those who have skills that are in high demand in the labour market are best placed to find well-paid employment. The IOM provides eligible returnees with livelihood assistance and makes regular visits to monitor the welfare of returnees.

   5.29      Multiple local sources said that some returnees, especially those in the north and east with suspected LTTE links, have been the subject of monitoring by the authorities, involving visits to returnees’ homes and telephone calls by the CID. DFAT understands that most returnees, including failed asylum seekers, are not actively monitored on an ongoing or long-term basis. DFAT is unable to verify whether monitoring, where it occurs, is specific to former LTTE cadres. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had no protection concerns and had not experienced harassment by the authorities, nor received monitoring visits, but DFAT cannot determine if this is the case for all such returnees.

   5.30      Bureaucratic inefficiencies present a significant challenge to reintegration for returnees. Refugee returnees, particularly those who returned without UNHCR or IOM facilitation, can experience delays in obtaining necessary identification documents and proof of citizenship. Lack of documentation inhibits access to social welfare schemes and the ability to open bank accounts, find employment or enrol in educational institutions. Limited job availability in the north and east further contributes to difficulties in securing employment and housing. DFAT assesses that reintegration issues are not due to failure to obtain asylum, but rather due to the employment and accommodation difficulties returnees may face. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they were able to reintegrate into their communities and find employment. DFAT understands that returnees may face financial difficulties reintegrating into their communities, including due to sale of their belongings to fund irregular ventures overseas, but do not experience societal discrimination for seeking asylum elsewhere.

   5.31      Some refugees and failed asylum seekers reported being pressured upon return to their communities, chiefly for being beneficiaries of financial reintegration assistance. Others experienced resentment upon return because they spent family funds on what proved to be a futile attempt at irregular migration. Overall, DFAT understands that societal discrimination is not a major concern for returnees, including failed asylum seekers. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had not experienced significant societal discrimination following their return.

   5.32      DFAT assesses that returnees face a low risk of societal discrimination upon return to their communities. DFAT further assesses that, where it occurs, surveillance of returnees can contribute to a sense of mistrust of returnees within communities.

   DOCUMENTATION

   5.33      Many individuals affected by the war, and particularly those in the east affected by the 2004 Indian Ocean tsunami, have lacked key identity documents. DFAT cannot determine to what degree this remains a problem in 2021 but the Sri Lankan Government makes provision for ‘probable age certificates’ for those without birth certificates. The ‘National Policy on Durable Solutions for Conflict-Affected Displacement,’ with assistance from the UNDP, commits the state to providing replacement identity documents, including birth, marriage and death certificates, to IDPs and refugee returnees, and free legal information and assistance regarding the re-issuance of these documents ...

   National Identity Cards (NICs)

   5.36      Sri Lankans generally use the National Identity Card (NIC) as their primary identification document, although birth certificates, driver’s licences and passports are also frequently used. Sri Lankan citizens are required by law to register their identity under the Registration of Persons Act (1968). Following registration, persons aged 16 or over are eligible to apply for a NIC regardless of their ethnicity, religion, language or geographic location. A NIC is obtained through one’s grama niladhari or the Department for Registration of Persons, and is required to access government services, including public health and education services. The NIC can be used to acquire all other identity documents. A NIC can be obtained only within Sri Lanka.

   5.37      People who reside in rural locations report that the requirement to travel to major townships to obtain identity documentation is prohibitive. In the north and east, documentation processes can be delayed due to the lack of Tamil-speaking officials. The NIC does not specify ethnicity or religion, and is issued in Sinhalese or, in some instances – such as for Tamils, or for those living in the north and east – in Tamil. There is no renewal period for NICs.

   5.38      Former LTTE members can obtain a NIC upon successful completion of the rehabilitation process. DFAT understands that suspected LTTE members released from rehabilitation and not detained for other reasons are issued a certificate of rehabilitation by the Commissioner-General of Rehabilitation.

   Passports

   5.39      The Department of Immigration and Emigration issues passports in Sri Lanka, and Sri Lankan diplomatic and consular missions issue passports to Sri Lankans overseas. Current requirements for adult passports are an existing passport (if available), an original birth certificate, an original NIC, a marriage certificate (to confirm change of name after marriage), biometric data and a letter, and a professional certificate or licence to confirm the applicant’s profession. Biometrics, including fingerprint data and the internationally accepted photograph standard, were introduced to passports in 2015 and made obligatory from 2018. Passports are machine-readable and are typically valid for 10 years. Electronic passports with an electronic chip that includes the biodata of the recipient were announced for 2019 but implementation of this upgrade is yet to be rolled out.

   5.40      Sri Lankans without passports can re-enter the country on temporary travel documents, also known as an Emergency Passport or a Non-Machine Readable Passport, issued by diplomatic and consular missions. Temporary travel documents are valid only for re-entry to Sri Lanka.

   5.41      Sri Lankans residing overseas can apply for identity documents such as citizenship and passports from any Sri Lankan overseas diplomatic mission ...

1. DFAT’s 4 November 2019 Country Information Report: Sri Lanka advises:

   5.34     …Apprehended individuals 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 detained for up to two days in an airport holding cell. DFAT is not aware of mistreatment of returnees during this process.

2. The last UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka were published in 2012. These included the following protection risk profiles:

   1 Persons suspected of certain links with the Liberation Tigers of Tamil Eelam (LTTE)

   2 Certain opposition politicians and political activists

   3 Certain journalists and other media professionals

   4 Certain human rights activists

   5 Certain witnesses of human rights violations and victims of human rights violations seeking justice

   6 Women in certain circumstances

   7 Children in certain circumstances

   8 Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Individuals in certain circumstances

3. Relevantly, the Guidelines advised:

   Originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection in the sense of the 1951 Convention and its 1967 Protocol.

   However, previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case. The nature of these more elaborate links to the LTTE can vary, but may include people with the following profiles:

   1) 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;

   2) Former LTTE combatants or “cadres”;

   3) 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);

   4) 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;

   5) 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;

   6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.

4. It is of interest that these Guidelines have not been updated, the apparent implication being that there has been no significant change to the risk profiles it provides.

5. Whereas that may be the case for returning Tamils who sought asylum abroad, improvements in the broader human rights landscape in Sri Lanka have evidently been limited, if not in some ways hamstrung. Relevant to this issue, I have had regard to the report to the UN General Assembly from the UN High Commissioner for Human Rights entitled Promoting reconciliation, accountability and human rights in Sri Lanka,released on 9 February 2021. The report cites and discusses six “Emerging threats to reconciliation, accountability and human rights”:  militarization of civilian government functions; reversal of Constitutional safeguards; political obstruction to prevent accountability for crimes and human rights violations; majoritarian and exclusionary rhetoric; surveillance and intimidation of civil society and a shrinking democratic space; and new and exacerbated human rights concerns, including anti-Muslim violence.

6. The Minority Rights Group International provided the following information[5] in 2018:

   Despite the end of the conflict, the human rights environment continued to deteriorate in a climate of impunity. Serious human rights violations, such as abductions, arbitrary arrests and detention, torture and sexual violence were still reported from the country’s former conflict zones. These areas remain heavily militarized; in addition to checkpoints blotting the region, the military also ran businesses, farming and development projects, and controlled civil society activity in these areas. As a result, freedom of expression or assembly in the country’s north and east remained very limited.  While there have been some improvements for the Tamil minority since 2015, many areas in the north and east are still dominated by the military presence, with continued barriers for justice for the victims of conflict-related violence and their families, as well as lack of accountability and continued abuses and impunity by security forces.

   While land rights and access to justice are central elements in the country’s efforts at reconciliation, Tamil culture and freedom of expression have been marginalized, particularly after decades of repressive policies by the Sri Lankan government that saw religious practices prohibited and heritage destroyed. These problems persist to this day, with continuing militarization, displacement and Sinhalization in minority areas, reflected in the construction of Buddhist shrines and victory monuments that affirm Sinhalese control.

   Rights violations include the taking over of land for Buddhist religious sites, the emergence of Buddhist symbols and places of worship in minority areas – in some cases where no Buddhists resided – and the denial of Tamils access to Hindu places of worship and cultural sites.  Protecting Tamil culture in the north and east, as well as reducing the pressures posed by militarization and rapid in-migration, will therefore be an essential element in ensuring peace and reconciliation in the country. Measures adopted since the beginning of Sirisena’s presidency in 2015, such as allowing the national anthem to be sung in Tamil in Colombo after years of unofficial restrictions, as well as reframing the commemoration of the end of the conflict not as a ‘victory day’ but a day of remembrance, are important steps forward.

   [5] “Sri Lanka: Tamils” in World Directory of Minorities and Indigenous Peoples, 2018,

7. This information is somewhat outdated by the return of the Rajapaksa brothers to power in 2019. DFAT advises:

   2.3       In 2015, Maithripala Sirisena, who defected from the Mahinda Rajapaksa Government to a rival political grouping, was elected President. Sirisena promised a new era of “clean” government, free of corruption, and embarked upon a path of reconciliation with the Tamil minority that appeared to make some progress. His government faced a constitutional crisis when he briefly appointed Mahinda Rajapaksa as his Prime Minister in a move that was not approved by parliament.

   2.4       On 21 April 2019, local Islamic extremist groups inspired by Daesh (also known as Islamic State), carried out coordinated terrorist attacks against Christian churches and hotels. The attacks, comprising suicide bombers, killed more than 250 people and injured another 490 — the deadliest bout of violence and the first known terrorist attacks in Sri Lanka since the end of the civil war in May 2009 ….

   2.5       In November 2019, Gotabaya Rajapaksa was sworn in as Sri Lanka’s President, choosing his elder brother Mahinda Rajapaksa, a former two-term President, as his Prime Minister. The UN Office of the High Commissioner for Human Rights (OHCHR), in its report of January 2021, said: ‘Sri Lanka seemed to be on a new path towards advancing reconciliation, accountability and human rights. The developments since November 2019, however, have reversed that direction and, instead, threaten a return to patterns of discrimination and widespread violations of human rights experienced in past decades’ …

8. I have also had regard to all of the independent country information cited in submissions to the Department and to the Tribunal, in particular all material submitted by the current adviser[expressing] concern about state-condoned discrimination against minorities against Tamils.

   Findings in relation to s.36(2)(a) of the Act

9. In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[6] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[7]

   [6] MIMA v Rajalingam (1999) 93 FCR 220.

   [7] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

10. The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[8] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[9]

    [8] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70

    [9] Sun v MIBP [2016] FCAFC 52 at [69].

11. The applicant’s claims relate to the “race” (Tamils/young adult male Tamils), “membership of a particular social group” (illegal emigrants /former asylum seekers/returnees) and “political opinion” (imputed pro-LTTE supporters) criteria in s.5J(1)(a) of the Act. I have considered his claims separately and cumulatively.

12. I accept that the applicant is an adult male ethnic Tamil citizen of Sri Lanka. On the evidence before me, I am not satisfied that that is enough to cause Sri Lankan authorities or any other parties to have potentially significant suspicion of the applicant having some affiliation with the Tamil Tigers or the Tamil separatist cause.

13. I accept that a member or affiliate of the Tamil Tigers could still attract serious harm today in Sri Lanka. It appears to be in the interest of recurring Rajapaksa “regimes” in Sri Lanka to manufacture popular support around old prejudices against Tamil separatists. I do not accept on the evidence before me, however, that this in itself gives rise to a real chance of the applicant being persecuted in Sri Lanka.

14. I find on the evidence before me that the applicant lied to interviewers and decision makers when he said that his passport was confiscated on return to Sri Lanka from [Country 1] in 2010, and that he embellished on this to imply that the confiscation was connected to hostile assumptions about his being associated with the Tamil Tigers. This was not, as the applicant has suggested, the result of an oversight or confusion regarding the terms “passport” and “travel document.” I find that the applicant intended to suggest, falsely, that Sri Lankan authorities had a strong enough case against him in 2010 to justify their curbing his fundamental human right to freedom of movement, whereas all they really did was take back their single-use travel document after he had completed his single use of it. I find that it weighs against the applicant that he claimed falsely to have had a passport confiscated. I give no weight in his favour with regard to the applicant having been relieved of the spent travel document. I do not accept on the evidence before me that he would have needed to retain and produce that travel document in order to obtain a new passport.

15. The problem this causes the applicant is that I do not accept on his word that paid arrangements were put in place at the time and place of his departure from Sri Lanka in 2008 to ensure that he was able to leave the country in circumstances where he otherwise would have been prevented from doing so. With regards to paragraph 5 of the post-hearing submission, I do not agree, on the applicant’s unsupported word, that “it must be accepted that the agent used the money to assist the applicant depart the country” in all the manners vaguely described. Hence, I find that the applicant underwent common departure formalities in 2008 and caused the authorities no potentially relevant concerns as he did so, the logical corollary being that whatever the applicant did or did not do prior to his travel to [Country 1] in 2008, notwithstanding that he was a young adult Tamil male who relocated or was displaced to the Vanni, he was allowed to leave the country unimpeded because he was not suspected of having any potentially significant profile.

16. I do not accept on the evidence before me that the payment to the agent circumvented any normal processes in enabling the applicant’s passport either to be issued or used.

17. I can accept that authorities visited the applicant’s parents in Jaffna in and around 2008-9 and enquired as to his whereabouts, just as they likely would do in respect of all persons registered as residents of domiciles in the region at that and other times. I can accept that the applicant’s parents said he was in India when, in fact, he was in the Vanni. I do not accept on the evidence before me that absent from that residence at the time of such visits, on its own, even when the true location of the applicant was the Vanni rather than India, would have been enough on its to attract potentially significant suspicion as to his profile in Sri Lanka. I find that this was why he was able to leave Sri Lanka on his then-passport without any disruption or impediment.

18. I accept that the applicant was held at Colombo airport on return there in April 2010 and interviewed and that it took him three to four hours to clear all that and reunite with his uncle and aunt. This was and is evidently common treatment of all citizens arriving back in Sri Lanka on limited-use travel documents. It does not mean in itself that the authorities regard the arriving citizen as a Tamil Tiger affiliate. I do not accept the applicant’s suggestion to the effect that the authorities would have treated him more harshly on his arrival back in Sri Lanka in April 2010 but for the fact that his uncle and aunt were waiting for him outside. I fond that had the authorities believed the applicant had any Tamil Tiger connections they would not have cared at that time  who was waiting to the applicant outside at all. I find that the applicant again embellished the circumstances surrounding his 2010 return to Sri Lanka when he said in his 2 March 2022 that he was only released into the community at large because his uncle “intervened.” This is either an embellishment or an overstating of the fact that the uncle was merely waiting for the applicant to be released from the arrival interview. In any event, this and other factual problems in the applicant’s account of his interview with authorities on return to Sri Lanka in 2010 make it all the harder for me to accept that he had a potentially significant profile with them.

19. On the evidence before me, then, I do not draw any conclusions or inferences in the applicant’s favour from the authorities resumption of his travel document on return to Sri Lanka. Also, since I accept that he was he was released to his Negombo-based aunt and uncle, as all returnees on such travel documents evidently have to have someone to collect them on release, I do not draw any inferences in his favour about his not having gone straight back to Jaffna, which was reportedly subject to quite chaotic conditions at the time, with internally displaced people in their thousands being vetted as they tried to move back to former places of domicile, many of which locations were not yet able logistically to support them day-to-day. I do not accept that authorities would have allowed the applicant to go with then to their home in Negombo, at least for the time being, if their expectation had been for him to go immediately and solely to his parents’ house in Jaffna.

20. I accept that the applicant decided to leave Sri Lanka in April 2010 rather than return to Jaffna, where life for all was far from settled at the time. I accept that he obtained help from his uncle to travel by illegally boat. I find on the evidence before me that that he did this as an alternative to the abortive effort to get into Europe in 2009. I am not satisfied on the evidence before me that the applicant did this because he faced any potentially relevant harm in Sri Lanka at the time, let alone in Negombo. It would have been very hard for him to obtain work at the time in or outside of Jaffna. The evidence before me suggests that applying for another passport would be a waste of time and money if, say, an Australian visa could not also be easily obtained. The emigration trend at the time was for people, particularly Tamils, to join boats out of the country. I accept on the evidence before me that the applicant’s illegal departure from Sri Lanka in 2010, soon after his voluntary return there, will be the subject of questions from authorities in the event of his return to that country in the reasonably foreseeable future. I find, however, that this is normal practice for people who left the country illegally.

21. I find on the evidence before me that the applicant will again be questioned by the CID and other authorities upon arrival at Colombo airport. I anticipate that he would arrive on a single-use travel document that would be marked cancelled and/or retrieved from him as a matter of course for such documents. I do not accept on the evidence before me that his second use of such a document will affect him cumulatively in any potentially relevant way. I give no weight in his favour in relation to the fact of the applicant re-entering Sri Lanka for a second time on a single-use travel document. I accept on the evidence before me that the applicant will be interviewed so that the authorities can check whether he has a criminal record or potentially significant ties to the Tamil Tigers and/or the separatist interests. In particular, I do not accept the applicant’s position to the effect that he would have a negative profile with the authorities due, separately or cumulatively, to his experiences leading up to or including his last departure from Sri Lanka. I do not accept on the evidence before me that the applicant would have a negative profile with the authorities due, separately or cumulatively, to the length of time he has been absent from Sri Lanka in Australia in particular, or abroad generally. I do not accept on the evidence before me, including evidence of time spent and activities undertaken in Australia, that anything the applicant has done or not done up to now, either actually or merely according to imputation, will give rise to his attracting a potentially significant profile with Sri Lankan authorities or society, or to his suffering relevant serious harm as a result.

1. I can accept that the applicant attended the 27 November 2021 Heroes’ Day commemoration in [NSW] for reasons other than merely to strengthen in claim to recognition as a refugee. For a start, he claimed he attended under a sense of obligation to his host at the time, so that at least is another reason why he attended this event, which was one that he said he normally would not have attended out of dislike for the snobbery of some of its regular attendees. Hence I do not disregard it for the purposes of determining his claim to refugee status. Accordingly, I have considered the applicant’s oral evidence about this event and its potential significance. I have also considered the observation in the DFAT Country Information Report: Sri Lanka (2021), citing the UK Upper Tribunal, to the effect 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 … may trigger official harassment upon return.” Relevant to this, I have also considered the remarks in the post-hearing submission to the effect that just because face masks do not necessarily hide a person’s identity, I should find that the Sri Lankan Authorities may be aware of the applicant’s attendance and therefore his support of the Heroes’ Day event, and that this may enhance his risk profile upon return to Sri Lanka. On the evidence before me I consider all of this to be bald speculation, and give very little weight to the applicant’s attendance at one Heroes’ Day gathering in the decade or so that he has spent in Australia. I am not satisfied on the evidence before me, even on the cited remarks of the UK Upper Court, that the applicant himself faces a real chance of official harassment on return to Sri Lanka for attending the gathering he has described.

2. I accept that the applicant will be charged with having breached Sri Lankan immigration and emigration laws (the I & E Act), which, on the information before me, are laws of general application both appropriate and adapted to achieving the legitimate national objective of protecting the integrity of Sri Lanka’s borders. The applicant will be investigated doing the interview for evidence of any involvement in people smuggling. I accept that he was not involved except as a paying passenger. I see no reason for this not also to be the conclusion of Sri Lankan investigators. I accept that the charge of illegal departure can and nearly always does lead to a short remand, a bail hearing, bail and a later court date or dates, leading to conviction that likely attracts only a fine, and one that can in any event be paid in instalments if needed. I am not satisfied that the applicant will suffer discrimination or differential treatment amounting to persecution in the course of this process.

3. I accept that there continues to be some general societal discrimination towards ethnic Tamils and other minorities in Sri Lanka and that the government at least tacitly encourages this as a means of consolidating its appeal to the majority Sinhalese Buddhist population. However, I am not satisfied on the evidence before me that this gives rise to a real chance of the applicant being persecuted in Sri Lanka for his “race,” “religion” or any other relevant factor.

4. I accept that the applicant may be monitored and/or placed on reporting conditions in Sri Lanka and that this may obtain for some time. However, I am not satisfied on the evidence before me that this gives rise to a real chance of his being persecuted for any relevant reason.

5. Overall, I find that the applicant has exaggerated the danger he claims to face. I also find, in the alternative, that even if the authorities in 2010 were more concerned or alarmed in regard to the applicant’s profile than I have confidently found, the substantial elapsing of time since then, notwithstanding the return of the Rajapaksa brothers to power, has reduced the significance of the applicant’s actions and experiences during and shortly after the war, such that he no longer faces a real chance of being persecuted.

6. I appreciate that this decision will come as a blow to the applicant who was recommended for a protection visa back in 2015. However, I must make a decision on the merits of the facts having regard to the reasonably foreseeable future viewed from the time of making this decision.

7. Having considered all of the evidence before me in its entirety, I am not satisfied that the applicant faces a real chance of being persecuted in Sri Lanka for any reason cited in s.5J(1)(a) of the Act. His claimed fear of being persecuted in Sri Lanka is not well founded. He is not a refugee.

8. For the reasons given above, I am not satisfied that the applicant  is a person in respect of whom Australia has protection obligations under s 36(2)(a).

   Findings in relation to s.36(2)(aa) of the Act

9. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

10. Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

11. “Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.

12. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR.

13. “Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.

14. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

15. Accepting that the applicant is a national of Sri Lanka, I find that Sri Lanka is the receiving country in this matter.

16. The applicant’s claims to complementary protection are essentially the same as his refugee claims. Those claims are tainted by credibility issues and have failed to meet the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, the applicant’s refugee claims can no more succeed as complementary protection claims.

17. I accept that the applicant may suffer some social, financial and vocational hardship on return to Sri Lanka, notwithstanding that he should by now be able to return to his family home in Jaffna. However, on the evidence before me I am not satisfied that this hardship would amount to significant harm.

18. Having considered all of the evidence before me in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm.

19. Accordingly, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    Other findings

20. 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 who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).

    DECISION

21. The Tribunal affirms the decision not to grant the applicant a Temporary Protection visa.

    Luke Hardy
    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.

    …