1730424 (Refugee)
[2022] AATA 4213
•11 October 2022
1730424 (Refugee) [2022] AATA 4213 (11 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Shamili Kugathas
CASE NUMBER: 1730424
COUNTRY OF REFERENCE: Sri Lanka
MEMBER:David McCulloch
DATE:11 October 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Statement made on 11 October 2022 at 1:02pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – race –Tamil – imputed political opinion – particular social group – suspected of involvement in an LTTE bomb blast – failed to continue to report to the army as required – torture and ill-treatment of those detained by authorities – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 November 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant (‘the applicant’) initially applied for protection on 6 December 2011. The applicant was assessed pursuant to the Protection Obligation Determination (POD) process. On 5 March 2012 the applicant was found not to be owed protection and the matter was referred to the Independent Protection Assessment (IPA) which made a recommendation on 8 November 2012 that the applicant meet the criterion for a protection visa set out in s 36(2)(a) of the Act and recognised as a person to whom Australia has protection obligations. At the time, the second named applicant was not yet born.
The applicants who claim to be citizens of Sri Lanka, applied for XE-790 Save Haven Enterprise visas (SHEVs) on 26 May 2017. The delegate refused to grant the visas.
The Tribunal has made a decision that the applicant is owed protection without the need for a hearing.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Subsections 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a Protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse and dependent children.
The Tribunal is satisfied on the evidence that the second named applicant (‘applicant daughter’) is a dependent child and therefore she is a member of the same family unit as the applicant.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – Sri Lanka, 23 December 202
CONSIDERATION OF Claims and evidence
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant entered Australia as an unlawful maritime arrival (UMA) [in] December 2011. An IPA interview was conducted after his arrival. According to the recommendation, the applicant had lived in [Country 1] for 10 months and in [Country 2] for 2.5 years. He had been in [a named] Refugee Camp (a government-run facility) in Sri Lanka for one month in 2006. Since his arrival, he has never left Australia. He applied for SHEV on 26 May 2017.
The applicant was born on [date]. His application forms are largely empty, but it is indicated in the IPA recommendation that the applicant had parents, [number] brothers and one sister in Sri Lanka. He also had a sister in [Country 3]. He is married to a Sri Lanka national and has one child born in Australia.
The applicant provided a statutory declaration, dated 28 January 2012, setting out his claims for protection as follows (not corrected for spelling or grammar, headings and footings omitted):
Background:
My name is [the applicant] and I am a [age] year old male born in Sri Lanka. My ethnicity is Tamil and my religion is Hindu.
I am currently not married and have never been married. My mother, father and [number] brothers and 1 sister are still living in [Village 1] Jaffna. I also have 1 sister that is living in [Country 3] as a [Country 3] citizen.
Why I left my country:
In 2006 the LTTE gave compulsory self defence training using wooden sticks, all companies and Co-operations were required to attend and as I was a member of the fishing co-operation it was compulsory for me to go. My father didn't want me to go to training and he cried and begged them to not take me and that I was only working as we were in financial problems. So they did not take me but they took my father. My second brother was in India at the time and my eldest brother was married with children.
Later in 2006 the A9 road was closed and the Army controlled the area and they went to the Fisher Mans Co-operation and asked who the ones were that attended the LTTE training were. The person from the fisherman's Co-operation was hit by the Army personnel and forced to give a list of names. He took some names off and put other names on the list. He gave them the list and they put my name on it although I did not attend. The Army then came to our house and wanted to take me but my mother said this was a mistake and that I was a student and didn't attend the training. The pushed her to the ground and took me anyway. They took us to the camp and gave us a warning and talked to us and about not giving trouble.
So I went fishing as usual and one day on the way back home with 4 others when a hand grenade went off at the sentry place near my house and we all straight away jumped to the ground. The Army then came and got us and took us back to the camp and they detained and tortured us for 3 days. For each of the 3 days my parents begged and cried for my release. On the 3rd day they released me on the condition that I attend the [named] Army camp every Sunday to sign a book. Every day I attended they interrogated me and tortured me and asked about the bomb and if I was the one who did it or did I know who it was.
Every time they rounded up the area the same 5 of us would be taken away for questioning. This was how my life was going and eventually 3 of them went missing and never came back. We all believed they were abducted.
When I went to sign on the last week of me being there the Army asked me if I knew if the 3 had gone to the LTTE and I said no. Then when I was leaving I was secretly told by an Army Officer that the Army had taken them and that I would be next.
So the following Sunday I did not go to sign as I was scared and my parents were scared fo me also and we were trying to organise for me to flee the country. That Sunday afternoon the Army came to my house looking for and I ran away and went to family friends to stay. They did not want me to stay s it could be trouble for them. I also had heard that the Army had taken my parents for questioning so I could not contact them. Eventually I contacted my Parents and they told me they were kept for a few hours and they told the Army they did not know where I was. My parents then told me that I was to be contacted by someone that they had organised through the EPDP. Soon a person came to me that I suspected was an EPDP person and he took me to a new place, and I stayed there for a few days and then the EPDP person came back and took me by ship to Trincomalee and then onto Colombo. This man must have bribed someone in the Army to get an exit permit. The EPDP man kept me in hiding in Colombo and arranged for me to leave Sri Lanka the next day. He also told me that the 5th person was shot and killed.
The army kept going back to my house and tortured my family trying to find me.
Once in [Country 2] I rang my parents and they told me talk to my Sister in [Country 3] and my sister told me that she had arranged for someone to meet me. The man came to me at the airport and found me from a photo my sister gave him and he had arranged for me to go to a safe place. He took me to a house about 4 hours from the Airport and I stayed there with another Sri Lankan Family. This man would bring food for me and to not worry as he was in contact with my sister and he would arrange everything for me. I did not contact my Parents at this time as I did not want to cause them trouble.
He took me to a beach and we were to get on a boat for Australia. Later the boat broke down and we were found by the [Country 2] Navy and taken back the [Country 2]. We did not want to get off the boat because we all feared that we would be deported back to Sri Lanka. We told the [Country 2] authorities we wanted 3 requests and then we will get off the boat first was not to be sent back to Sri Lanka, Give us safety in [Country 2] or send us to a different country beside Sri Lanka. The UNHCR told us that they could not help us as [Country 2] was not part of the UNHCR and next the [people] electrocuted the boat to get us off and did not accept the requests.
We were then taken to jail with the men to a different place from the women and children. There were 2 little boys with us in Jail and we stood in the sun waiting for food and we told the 2 little boys to sit down and the [Country 2] Authorities hit us all with sticks. We all went on a hunger strike till they put the children back with their parents. The UNHCR did not see us for 2 months. Later the Authorities told us we would be deported and we went on a hunger strike again and I ended up fainting and being taken to hospital but I could still feel them kicking me with their boots.
Then the UNHCR came and registered us as Refugees. Except for 32 all the rest of us were released and someone gave us food and found us some work. I stayed with the first family as they were on the boat and we sold things to get money for more food. We found jobs working illegally and had to give [some money] to the police when they caught us working.
I heard there was a boat going to Australia from [Country 1] and I knew some people from work who were [from Country 1] and paid them [some money] for them to take me by boat to [Country 1]. I went by boat and then plane to [a city] and was stopped by immigration and bribed him to let me go. I stayed for 10 months and registered with the UNHCR in [Country 1] and eventually went by boat to Australia.
What I fear might happen if I go back to my country:
My life will be under threat and I will be killed because I ran away from the Sri Lankan Army as the other 4 had disappeared and I know that 1 of them had been killed after I left.
Who I think will harm or mistreat me if I go back:
The Sri Lankan Army and Authorities that work with them.
Why I believe they will harm or mistreat me if I go back:
They suspected I was Tamil and an LTTE Member and since I ran away they will think this more strongly about me. Also my ID card says I am from [Town 1] and this causes me more problems as the leader of the LTTE was from there.
Why I believe that the authorities in my country will not protect me if I go back:
The Sri Lankan Authorities and the Sri Lankan Army are the ones that are persecuting me as I am a Tamil, so they will not protect me.
Other matters that I would like the Department to take into account:
We were displaced and went to live in a LTTE controlled area then came back to an Army controlled area and there was a bomb blast and the Army came to our house and hit my mother with an axe type instrument in the back. I was about [age] years old at the time and I was in the house with my mother when it happened. I sat with her crying. They also took my brother and Father back to the Army camp and tortured them. Since that torture my brother still bleeds through his testicles.
The applicant provided the following documents to the Department in relation to his initial application for protection:
·A letter from the UNHCR dated 25 April 2011. It certified that the applicant was an asylum seeker whose claim was being assessed by the UNHCR.
·A letter from [a] Justice of the Peace, dated in 2012, which stated that the author had known the applicant since the applicant was an infant. It supported the claim that the applicant entered fishery due to his poor family background and that the applicant left Sri Lanka due to the war and threats from the Sri Lankan army.
·A letter from [Village 1] Fishermen’s Co-op, undated and signed by the President, which stated that the applicant was a members of its society and had been fishing since 2006. It also stated that the applicant left his country in 2008 due to the then situation.
·education records relating to the applicant.
·various training certificates in relation to the applicant.
·various family birth certificates.
·various family ID information.
An undated submission by the applicant’s lawyer was provided in 2011 as part of the POA determination process. It outlines independent information in relation to the situation in Sri Lanka at that point in time.
A submission by the applicant’s lawyer dated 21 November 2017 was provided to the delegate following the interview that took place in relation to the current application for protection. The Tribunal notes the following from the submission.
It is indicated that the applicant face harm on the basis of his Tamil race, imputed political opinion and membership of a particular social group as a returnee from the West/failed asylum seeker. Submissions are made that the applicant faces harm solely on the basis of him being Tamil.
Submissions are made that the applicant faces harm arising from imputed political opinion and factual claims are repeated. It is indicated that in 2006 the applicant was taken away from his home to a camp and warned that he should not create any trouble. Reference is made to the grenade attack and five people including the applicant being suspected of involvement in the attack. The five of them were detained for five days and subsequently required to report weekly to the army camp. Each time the applicant would attend he would be interrogated about his perceived involvement in the explosion. Three of the boys were at a certain point never seen again. The applicant was told by an army officer that he would be next and therefore did not attend the camp on the next occasion to check in. The army came to the applicant’s home looking for him but the applicant had escaped and was living at a family friend’s home. The applicant was contacted by his parents and told that they had been questioned by the army. This resulted in arrangements being made for the applicant to leave Sri Lanka. The other boy who was believed to be behind the explosion was shot and killed.
The belief that the applicant was involved in the grenade attack creates an ongoing risk for the applicant of requisite harm if he were to return to Sri Lanka. Further, the applicant was involved in a hunger strike in [Country 2] that attracted media attention. This makes it conceivable that authorities in Sri Lanka would be aware the applicant was travelling on a boat. This is likely to result in further suspicion that the applicant is an LTTE affiliate.
It is plausible that Sri Lankan authorities would believe the applicant is an LTTE affiliate given that his name was included on the list of individuals who have trained with the LTTE and given his age and marital status, area of origin and the fact that he fled the country prior to the cessation of the conflict. This is exacerbated by the period that the applicant has spent abroad and the fact that he sought asylum.
Submissions are made that applicant faces harm based on being failed asylum seeker. The fact that the applicant left the country through the payment of a bribe indicates that his departure would be viewed as illegal.
Submissions are made in relation to concerns raised in interview with the delegate. It is submitted that the applicant’s evidence was forthright and emotional when talking of the trauma and torture that he suffered. The applicant’s circumstances cumulatively need to be considered. The fact that the applicant fled the country while still being required to report to authorities mean he will be treated with suspicion. If the applicant returns to Sri Lanka authorities would examine his background and subject him to interrogation about his past. It is submitted that authorities in Sri Lanka rely on torture and the applicant faces a requisite risk of harm during the process of interrogation.
Reference is made to the fact that the situation for Tamils in Sri Lanka has improved. However, it is submitted that the situation for those deemed to be affiliated to the LTTE remains precarious. Problems exist for Tamils in the north. Submissions are made that the Prevention of Terrorism Act (PTA) remain in force. The situation for Tamils in Sri Lanka is not prosperous nor can it be said to be stable.
Independent information is cited concerning the practice of torture in Sri Lanka in coercing information and punishing individuals. Reference is made to independent information indicating that Australian authorities do not ensure that returnees are not subject to ongoing harm. Independent information is cited as indicating that the government has not reformed military autonomy on national security, two areas that can be attributed to the ongoing oppression of minority groups. Independent information is cited concerning ongoing problems for those perceived to have had affiliations with the LTTE. Independent information is cited that the Sri Lanka government continues to commit human rights abuses against religious and ethnic minorities and it is evident that an individual does not need to have strong links to the LTTE to be imputed to have pro-LTTE sentiments and to be subjected to torture.
Independent information
The 2021 DFAT report on Sri Lanka provides the following information (original emphasis removed, underlining added):
RECENT HISTORY
…
2.2 A number of militant groups emerged to advance the cause of Tamil statehood. The most prominent of these, the Liberation Tigers of Tamil Eelam (LTTE, commonly known as the Tamil Tigers), formed in 1976 and launched an armed insurgency against the Sri Lankan state in 1983. Government forces re-took the north and east of the country from 2007-09, culminating in the military defeat of the LTTE in May 2009. The UN and human rights organisations documented serious violations in the final stages of the war when Mahinda Rajapaksa was President, during which up to 40,000 civilians may have been killed. In total, Sri Lanka’s 26-year civil war is estimated to have claimed 100,000 lives and displaced over 900,000 people. Civil society groups and NGOs have criticised the Rajapaksas for enabling and covering up alleged war crimes and atrocities against civilians.
2.3 In 2015, Maithripala Sirisena, who defected from the Mahinda Rajapaksa Government to a rival political grouping, was elected President. Sirisena promised a new era of “clean” government, free of corruption, and embarked upon a path of reconciliation with the Tamil minority that appeared to make some progress. His government faced a constitutional crisis when he briefly appointed Mahinda Rajapaksa as his Prime Minister in a move that was not approved by parliament.
2.4 On 21 April 2019, local Islamic extremist groups inspired by Daesh (also known as Islamic State), carried out coordinated terrorist attacks against Christian churches and hotels. The attacks, comprising suicide bombers, killed more than 250 people and injured another 490 — the deadliest bout of violence and the first known terrorist attacks in Sri Lanka since the end of the civil war in May 2009 (see 2019 Easter Sunday Terrorist Attacks).
2.5 In November 2019, Gotabaya Rajapaksa was sworn in as Sri Lanka’s President, choosing his elder brother Mahinda Rajapaksa, a former two-term President, as his Prime Minister. The UN Office of the High Commissioner for Human Rights (OHCHR), in its report of January 2021, said: ‘Sri Lanka seemed to be on a new path towards advancing reconciliation, accountability and human rights. The developments since November 2019, however, have reversed that direction and, instead, threaten a return to patterns of discrimination and widespread violations of human rights experienced in past decades’ (see Political System).[1]
[1] DFAT, Country Information Report – Sri Lanka, 23 December 2021, p. 8.
…
POLITICAL SYSTEM
2.29 Sri Lanka is a democracy with a mixed parliamentary and presidential form of government. The president is directly elected for a five-year term (limited to two terms) and is the Head of State, Head of Government and Commander-in-Chief of the Armed Forces. President Rajapaksa is also the current Minister of Defence. International and domestic election observers deemed the last parliamentary election, held in 2020, to be mostly credible, although some incidents of voter intimidation were reported.
2.30 In August 2020, the Sri Lanka People's Freedom Alliance (SLPFA), a coalition under President Gotabaya Rajapaksa (which includes his own party, the Sri Lanka People's Front (SLPP)), won a two-thirds majority in the Sri Lankan Parliament led by Prime Minister Mahinda Rajapaksa.
2.31 On 20 October 2020, the Sri Lankan Parliament endorsed the 20th Amendment to the Sri Lankan Constitution. The amendment reversed some measures introduced by the previous government, largely dismantling pro-transparency and accountability reforms in the 19th Amendment, as well as enhanced executive control over the legislature and judiciary. In January 2021, the UN High Commissioner for Human Rights expressed her concern that ‘the amendment has fundamentally eroded the independence of key commissions and institutions, including the Human Rights Commission of Sri Lanka (HRCSL), the Election Commission, the National Police Commission and the judiciary in terms of procedure for the selection, appointment and dismissal of senior judges and other high-ranking officials.’ The amendment also allowed dual citizens to enter Parliament.
2.32 In July 2021, Basil Rajapaksa, a dual-Sri Lankan-US citizen, was sworn in as Sri Lanka’s Minister of Finance, becoming the fourth Rajapaksa brother and fifth member of the first family to enter the Cabinet. The move further consolidated the family’s control over the machinery of government. The family’s return to government has seen greater centralisation of power in the executive branch and the increased militarisation of civilian government (such as the filling of civilian positions with former military officers). Some observers have called these measures ‘democratic backsliding’; the weakening of institutions that provide democratic accountability (see Recent History).
2.33 Prime Minister Mahinda Rajapaksa’s earlier 10-year presidency (2005-2015) was also marked by allegations of democratic backsliding and accusations of corruption and human rights violations, including alleged war crimes against the Tamils, and harassment, arrest and disappearance of government critics. The current government of Gotabaya Rajapaksa has sought to retain popularity within the majority Sinhalese community by highlighting their role in the defeat of the LTTE and by promoting strong state security, particularly following the 2019 Easter Sunday terrorist attacks. Local sources, Tamil and non-Tamil, told DFAT that the human rights improvements achieved under the government of Maithripala Sirisena (2015-2019), including in relation to freedom of expression, are now being reversed. Such sources regard the increasing militarisation of the civilian government, the 20thAmendment’s centralisation of power in the hands of the executive, and the increasing use of the Prevention of Terrorism Act and other means to silence critics, as vindication of their fears. Presidential elections are next scheduled to be held in 2024. In July 2021, President Rajapaksa stated his intention to run for a second term in office.
Reconciliation
2.34 The report of the Office of the UN High Commissioner for Human Rights (OHCHR) Investigation on Sri Lanka (OISL), released in September 2015, found that government and LTTE forces likely committed grave violations, possibly amounting to war crimes and crimes against humanity, between 2002 and 2011. In response, the Sri Lankan Government of Maithripala Sirisena committed to implementing a range of truth, justice and reconciliation measures under a UN Human Rights Council (HRC) resolution (Resolution 30/1) adopted in October 2015. The then-Government of Sri Lanka co-sponsored these resolutions.
2.35 In 2015, the then- Government approved the formation of four transitional justice and reconciliation mechanisms, in line with Sri Lanka’s HRC commitments: (1) an Office on Missing Persons (OMP); (2) an Office for Reparations (OfR); (3) a Truth, Justice, Reconciliation and Non-Recurrence Commission; and (4) a Judicial Mechanism with a special counsel to investigate allegations of violations of human rights and international humanitarian law during the war.
2.36 In 2015, an Office for National Unity and Reconciliation (ONUR) was established and the Government appointed former President Chandrika Bandaranaike Kumaratunga as chair. She left the position in November 2019 and was not replaced. In-country sources do not regard ONUR as having fulfilled its mandate of promoting reconciliation in 2021.
2.37 The OMP was formally established in September 2017 with seven commissioners including two Tamils and one Muslim. The OMP was the first permanent and independent body to address the issue of missing persons in Sri Lanka. The OMP is tasked with determining the status of all missing persons in Sri Lanka and clarifying the circumstances under which they disappeared. Its mandate includes cases that occurred before, during and after the war, including periods of violent political disturbance in the 1970s and 1980s. While some optimism occasioned the OMP’s establishment and initial operations, local sources regarded it as compromised in 2021; the 20th Amendment permitted the Government to appoint commissioners implicated in historical abuses, such as former Inspector General of Police (IGP) Jayantha Wickramaratne. Ahimsa Wickrematunge, daughter of slain journalist Lasantha Wickrematunge said of Wickramaratne that, as IGP in 2009, Wickramaratne had ‘derailed’ investigations into her father’s murder. As at November 2019, the Government was paying Interim Relief (worth LKR6,000 per month) to 153 families of missing or disappeared persons up. Family members who possessed either a Certificate of Absence (CoA) or a Certificate of Death (CoD) which stated that the person has been missing or had been disappeared for over one year were entitled to this payment. However, in September 2021, sources advised that the payment of Interim Relief had ceased, along with the issuance of Certificates of Absence.
2.38 The lead investigator in a number of ‘emblematic cases’ involving high-profile disappearances and other serious human rights violations where some progress has been made, Inspector Nishantha Silva of the Police Criminal Investigation Department, fled Sri Lanka to Switzerland after the Presidential election in 2019, fearing reprisals. The Government has now issued two warrants for Silva’s arrest, including one for murder, and is reportedly seeking his extradition from Switzerland. Other former CID officers, such as former Director Shani Abeyesakara, have been targeted by the Government for their role in high-profile cases.
2.39 The OfR was established by legislation passed by parliament on 10 October 2018 with commissioners from a range of ethnic and professional backgrounds. The OfR has been given a mandate to provide reparations to persons affected by conflict, not only in the north and east, but also in the south, and in connection to the Marxist insurrections of the 1970s and 1980s. Local sources claimed in 2021 that the OfR’s work had come to ‘a standstill’. However, the Government of Sri Lanka stated in September 2021 that the Office continues to function, settling a total of around 5,000 claims (with more than 10,000 remaining) for a total of LKR323.6 million (AUD2.2 million). This amounts, as HRW notes, to approximately USD500 per missing person. In August 2021, Sri Lanka’s Cabinet approved the National Reparations Policies and Guidelines. The document, which is publicly available, was formulated within the legal framework set out by the Office of Reparations Act and covers both collective and individual reparations. However, at the time of publication, details on practical implementation of the policy were still evolving.
2.40 The Government withdrew its co-sponsorship of Resolution 30/1 in February 2020, announcing instead, a policy of pursuing reconciliation through domestic processes. In March 2021, the UN Human Rights Council, following a report by UN High Commissioner for Human Rights, Michelle Bachelet, adopted resolution 46/1, deciding ‘to strengthen the capacity of the Office of the High Commissioner to collect, consolidate, analyse and preserve information and evidence and to develop possible strategies for future accountability processes for gross violations of human rights or serious violations of international humanitarian law in Sri Lanka to advocate for victims and survivors, and to support relevant judicial and other proceedings, including in Member States, with competent jurisdiction.’ A statement delivered by the Foreign Minister (Peiris) during the Human Rights Council’s 48th Regular Session in September 2021 noted the Government’s rejection of the proposal for any external initiatives established by Resolution 46/1 while domestic processes were underway. Local and international sources suggest that the Sri Lankan Government is concerned about this OHCHR evidence gathering process, and are seeking to stifle and suppress critics with knowledge of historical abuses that would be of use to the OHCHR. Sources claim senior figures principally fear the exercise of universal jurisdiction by other states with regard to such abuses.
2.41 In her January 2021 report, Bachelet said: ‘Sri Lanka remains in a state of denial about the past, with truth-seeking efforts aborted and the highest State officials refusing to make any acknowledgement of past crimes’ (see also Media and Civil society organisations and government critics). In 2021, there has been little progress on so-called ‘emblematic cases’ of historical abuses related to the civil war. In one high-profile case, the recently retired Chief of the Defence Staff (head of the Sri Lankan military), Admiral Ravindra Wijegunaratne, was remanded in custody on 28 November 2018 for allegedly threatening a witness and attempting to remove the lead police investigator in a case involving the abduction and murder of 11 Tamil youths by Navy personnel in Colombo in 2008 and 2009. As of 2021, he is yet to face trial. The bodies of the 11 men, who came from wealthy families and were allegedly abducted for ransom, have never been found. The current Chief of the Defence Staff and Chief of Army, General Shavendra Silva, is banned from travelling to the United States due to accusations of civil war-era war crimes.
2.42 DFAT assesses that progress on accountability for war-era violations is unlikely in the near-term. DFAT further assesses that Sri Lankan journalists, investigators, activists and former police officers probing historical abuses face a high risk of official harassment and a moderate risk of violence.[2]
[2] DFAT, Country Information Report – Sri Lanka, 23 December 2021, pp. 12-15.
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SECURITY SITUATION
2.48 The security situation in Sri Lanka, particularly in the north and east, has improved significantly since the end of the civil war in May 2009. The Sri Lankan Government exercises effective control over the entire country, including Tamil-populated areas. Security was heightened across Sri Lanka following the 2019 Easter Sunday terrorist attacks (see also 2019 Easter Sunday Terrorist attacks and Aftermath of Anti-Muslim Violence).
2.49 The 2019 Easter Sunday suicide bombing terrorist attacks, carried out on 21 April 2019 by local Islamic extremists (National Thawheed Jammath (NTJ) and Jamaat-al Mullathu Ibrahim (JMI)) and inspired by Daesh (ISIL/Islamic State), targeted three luxury hotels in Colombo (Western Province) and three Christian churches in Colombo, Negombo (Western Province) and Batticaloa (Eastern Province). More than 250 people were killed in the bombings with another 490 injured. A Commission of Inquiry has investigated the bombings but, as at the time of publication, the Commission’s report had not been publicly released. The Catholic Church in Sri Lanka has repeatedly raised concerns about the ongoing lack of justice for victims and the Government’s handling of the investigations. The Commission’s work and broader efforts to seek accountability have become highly politicised, including due to allegations of links between intelligence personnel and the groups that carried out the attacks, and of negligence by high-ranking officials including former President Sirisena.
2.50 The Sri Lankan Government claims it has killed or apprehended all those directly involved in the 2019 Easter Sunday terrorist attacks. Nearly 2,300 individuals were arrested in connection with the attacks, up to 300 of whom reportedly remain in police custody at the time of publication. The Sri Lankan Government proscribed the NTJ, the JMI and a third local Islamic extremist group, Willaayath as Seylani (WAS), as terrorist entities. According to media reporting, in May 2021, the Sri Lankan Ministry of Defence said it had no information about any current terrorist threat in Sri Lanka. See also Muslims with regard to the treatment received by Muslims in Sri Lanka following the 2019 Easter Sunday terrorist attacks.
2.51 The incidence of homicide has fallen sharply in recent years and is now comparable with other South Asian countries. The United Nations Office on Drugs and Crime estimated a murder rate of 2,421 per 100,000 people in 2018, the last year for which data is available. A number of local sources told DFAT of substantial gang violence in Jaffna (Northern Province), including random sword attacks allegedly carried out by Jaffna-based motorcycle gang the Aava Gang. A number of chiefly Tamil sources have suggested the Aava gang was enabled by Sri Lankan military intelligence but DFAT cannot verify this.
2.52 Elections have historically been volatile periods in Sri Lanka; however, independent election monitors found no significant security problems with the running of the 2019 Presidential and 2020 parliamentary elections, even amid COVID-19 restrictions for the 2020 election.
2.53 States of Emergency have also been in place for much of Sri Lanka’s recent history, including throughout the war and for four months after the 2019 Easter Sunday terrorist attacks, and have been used as a tool to extend executive and military control. The most recent State of Emergency, declared on 30 August 2021 reportedly to control rapidly rising food prices, sparked concerns in some quarters. Media reports state that the recent declaration lapsed in early November 2021 with little fanfare.
Security situation in the north and east
2.54 The Government no longer restricts travel to the north and east. It removed security checkpoints on major roads in 2015, although some were re-established following the 2019 Easter Sunday terrorist attacks. DFAT understands some security checkpoints re-established in the north post 21 April 2019 have since been removed. Local sources report that roadblocks were significantly re-established in 2020-21, ostensibly to combat COVID-19 and drug trafficking. However, sources note these roadblocks are common in the north and east, and far less common around Colombo, which does not reflect relative COVID-19 risks in these locations.
2.55 The military maintains a significant presence in the north. Military involvement in civilian life has decreased overall since the end of the war, although military involvement in some civilian activities, particularly the economy, continues in the Northern Province (see Economic conditions in the north and east). The Sri Lankan military comprises approximately 350,000 active and reserve service members; 280,000 Army, 50,000 Navy and 30,000 Air Force. Approximately 160,000 – 200,000 joined between 2006 and 2009. Retirement is permissible after 22 years of service. Much of the work currently done by the military includes: construction of roads, hospitals and houses; the renovation of dams; hospitality (such as running resorts or other tourism activities); and growing food (dairy farming, rice and vegetable cultivation).[3]
[3] DFAT, Country Information Report – Sri Lanka, 23 December 2021, pp. 16-17.
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Tamils
3.4 According to the most recent census (2012), Tamils are the second largest ethnic group in Sri Lanka (15.3 per cent of the population). Tamil political parties are active, with the largest coalition of parties operating under the umbrella of the Tamil National Alliance (TNA). In the 2020 parliamentary elections, the TNA won 10 seats (of a total 225) during the landslide victory of President Rajapaksa’s Sri Lanka People's Freedom Alliance (SLPFA). There are two Tamil parties in the Government’s ruling SLPFA coalition: the Tamil Makkal Viduthalai Pulikal (TMVP) (formerly known as the Karuna group), and the Eelam People's Democratic Party (EPDP), which have a combined total of three seats in the Sri Lankan Parliament. There is one Tamil cabinet minister as of November 2021: Minister for Fisheries, Douglas Devananda of the EPDP. This represents a decline in political influence for Tamils from the previous Sirisena Government.
3.5 Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs, though other sources suggest this is because many Tamils speak neither Sinhala nor English. Even the Tamil-dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil-speaking police officers and military personnel in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities. In April 2021, Sri Lanka Police announced plans to recruit 2,000 Tamil speakers for the north and east, given that very few of the mostly Sinhalese officers (with around 700 police officers working in the Northern Province and 1,100 in the Eastern Province) speak fluent Tamil. All police basic training is reportedly conducted in Sinhala limiting accessibility to most Tamils.
3.6 DFAT assesses there is no official discrimination on the basis of ethnicity in public sector employment. Rather, Tamils’ under-representation is largely the result of language constraints and disrupted education because of the war.
3.7 DFAT is aware that some Sinhalese from the south have resettled in the north and east with government assistance in the post-war period. Local sources in the north expressed concern about the construction of Buddhist statues and temples in non-Buddhist populated areas. DFAT is unable to verify claims that Sinhalese settlers in the north and east have received preferential treatment to establish businesses.
Monitoring, harassment, arrest and detention
3.8 Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested or detained by security forces during the war. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner (see Liberation Tigers of Tamil Eelam).
3.9 Members of the Tamil community and NGOs report that authorities continue to monitor public gatherings and protests in the north and east, and practise targeted surveillance and questioning of individuals and groups. Security forces are most likely to monitor people associated with politically-sensitive issues, including those related to the war, such as missing persons, land release and memorialisation events (see Civil society organisations and government critics and Media).
3.10 Communities in the north and east report that monitoring is undertaken by military intelligence and the Police Criminal Investigation Department, though in many cases officers dress in plain clothes and do not identify themselves. According to local sources, those participating in public gatherings and protests are often photographed. In the east, local informants within the community (including neighbours and business owners) reportedly undertake monitoring on behalf of the authorities. Intelligence agencies also monitor links to foreign groups, including some in the Tamil diaspora (see Liberation Tigers of Tamil Eelam).
3.11 LTTE cemeteries in the north and east were destroyed by government forces during and after the war. Some have subsequently been restored. It is illegal to commemorate the birthday of LTTE leader Prabhakaran (26 November), or Maaveerar Naal (‘Great Heroes’ Day’ in Tamil, 27 November), although some Tamils are known to defy this ban. The public display of LTTE symbols, including the LTTE flag and images of Prabhakaran, is also banned.
3.12 Tamils have been arrested in 2021 under the Prevention of Terrorism Act (PTA) for commemoration of the war (see Prevention of Terrorism Act). In May 2021, on the eve of commemoration of the end of the civil war in Mullaithivu district, the location at which various estimates suggest up to 40,000 civilians died in the closing phase of the war, authorities placed the district under strict COVID-19 quarantine isolation. According to local sources, Tamils who tried to commemorate the day were harassed or arrested by police. For example, 10 Tamils including two women were detained from 19 May 2021 until at least late July for holding a socially-distanced candle-lit vigil on a beach in Batticaloa, Eastern Province. On 19 May 2021, the Government of Sri Lanka, including President Rajapkasa, celebrated the same occasion as War Heroes Day.
3.13 DFAT assesses that surveillance of Tamils in the north and east continues, with particular surveillance of those associated with politically-sensitive issues. DFAT also assesses that physical violence against those being monitored is not common, and that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment.[4]
[4] DFAT, Country Information Report – Sri Lanka, 23 December 2021, pp. 18-20.
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Liberation Tigers of Tamil Eelam (LTTE)
3.39 At its peak in 2004, the LTTE had an armed force of approximately 18,000 combatants. The LTTE was proscribed as a terrorist organisation by a number of countries, including Australia. It was supported by foreign funding, primarily from the Tamil diaspora, and both voluntary and forced recruitment of Tamils. Funding from the Tamil diaspora was sometimes attained through means of intimidation and coercion, including threats against local family members and kidnapping for ransom. Within Tamil Eelam, the LTTE imposed its authority in a brutal fashion, reportedly murdering Tamil rivals and critics.
3.40 Towards the end of the war, in 2009, government security forces arrested and detained a large number of LTTE members. Most were sent to government-run rehabilitation centres. A smaller number were prosecuted through Sri Lanka’s court system. Security forces also questioned or monitored many civilians for possible LTTE activity, and for civil resistance or anti-government sentiment. Although not officially mandated, in many areas the military took a visible and active role in civilian life. The previous Sirisena Government publicly committed to reducing military involvement in civilian activities, but observers have expressed concern that this has reversed and the military’s role is growing again.
3.41 While the LTTE was comprehensively defeated, Sri Lankan authorities remain concerned over its potential re-emergence, and to separatist tendencies in general. Sources report that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members, supporters and other separatists, including ‘stop’ and ‘watch’ electronic databases. DFAT understands these databases remain active. ‘Stop’ lists include names of those individuals who have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals whom the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities.
3.42 Former LTTE members face no legal barriers to participating in public life, including politics. In the August 2015 parliamentary elections, the TNA did not allow ex-LTTE members to run on their ticket, but ex combatants established the Crusaders for Democracy party and ran for election. While the party did not win any seats, its participation demonstrated the relative openness of the electoral process. The party did not contest the 2020 parliamentary elections.
3.43 The LTTE has not carried out any attacks since 2009; however, individuals linked to the LTTE have been involved in what are alleged to be thwarted attacks. DFAT assesses that the LTTE no longer exists as an organised force inside Sri Lanka, and any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans. Local sources told DFAT that the Tamil community had abandoned militancy and was committed to addressing its grievances through political means.
3.44 The International Truth and Justice Project (ITJP), an NGO which documents torture and sexual violence by the security forces in Sri Lanka, claims that, while ex-LTTE cadres exist, they are no longer affiliated in any way with an extant LTTE, and are subject to harassment and discrimination by the Government. The Sri Lankan Government may not accept that the LTTE is finished, arresting several Tamils in 2021 under the Prevention of Terrorism Act (PTA) for alleged LTTE-supportive behaviour (see Prevention of Terrorism Act). In July 2021, a Tamil man was deported from Qatar to Sri Lanka at the request of Counter-Terrorism Investigation Department (CTID) for allegedly promoting the LTTE. In its May 2021 decision on the refugee status of Tamil activists in the UK, the UK Upper Tribunal found that the present Government of Sri Lanka was possessed of a ‘determination to prevent any form of resurgent separatism’.
Rehabilitation
3.45 Since the end of the war, successive Sri Lankan Governments have managed a large-scale ‘rehabilitation’ process for former LTTE members. The aim of the 24 rehabilitation centres was to process LTTE members who surrendered in the final stages of the war and to assist them to adjust to a life after war, with a focus on vocational training. According to Sri Lankan Government statistics from March 2019, 12,191 former LTTE members (including 2,265 women) had completed rehabilitation. Some centres previously used to rehabilitate former LTTE members have since been redeployed for the purposes of rehabilitating drug addicts and possibly Muslim detainees under the PTA (see Rehabilitation of non-LTTE members).
3.46 Local sources have previously estimated that between 4,000 and 6,000 former LTTE members are undisclosed and non-rehabilitated, the majority of whom may now be living overseas. Military sources have previously estimated the number of undisclosed and non-rehabilitated former LTTE numbers within Sri Lanka as being low, including approximately 280 individuals in Jaffna (Northern Province).
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TREATMENT OF RETURNEES
Exit and Entry Procedures
5.17 Unsuccessful asylum seekers, both those subject to removal or departing voluntarily, are returned to Sri Lanka either using commercial or charter flights. In some cases, they may be accompanied by security escorts. On arrival in Colombo, returnees will be presented to Sri Lankan Immigration where they will be interviewed by the Chief Immigration Officer. Depending on the circumstances of their departure from Sri Lanka and their personal history, they may be interviewed by other agencies including CID, Sri Lankan State Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI). These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Those who have departed illegally will be referred to CID at the airport and charged accordingly. Once charged they are taken to the courts at Negombo where they are bailed and released.
5.18 DFAT is not aware of returnees in 2021 being detained for matters other than illegal departure (such as, for former membership of the LTTE). However, due to COVID-19, returnees have been returned to Sri Lanka in smaller numbers overall than in previous years. According to the IOM, in 2021 up to September, there had been 107 returnees, 19 of these from Australia. Local sources also report that Tamils overseas are much less likely to return voluntarily to Sri Lanka under the current Government.
5.19 The IOM meets Australian-assisted voluntary returnees (i.e. not deportees) after immigration clearance at the airport and provides some cash and onward transportation assistance, along with legal assistance provided by the Sri Lankan Legal Aid Commission for those charged with illegal departure. Prior to departure from Australia, Australian Border Force provides removed returnees with cash to assist their return.
5.20 For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.
Offences under the Immigrants and Emigrants Act
5.21 The Immigrants and Emigrants Act (1948) (the I&E Act) governs exit from and entry to Sri Lanka. Returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the I&E Act. Sections 34 and 35 (a) of the I&E Act make it an offence, respectively, to depart Sri Lanka other than via an approved port of departure, such as a seaport or airport, and/or without a valid passport. Returnees who departed Sri Lanka legally are not required to face a court, as no offence under the I&E Act applies. Sri Lanka has a mature people smuggling industry. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine, though DFAT is unaware of a prison sentence being given for illegal departure by itself. Facilitators or organisers of people smuggling ventures, including captains and their crew, are charged with more serious offences and typically refused bail.
5.22 Those charged are required to appear in court in the location where the matter was first heard, reportedly Negombo Courts, near the airport, which involves legal and transport costs. While the frequency of court appearances depends on the magistrate, DFAT understands that most individuals charged under the I&E Act appear in court every 3-6 months, regardless of their plea, for bail hearings. In addition to their own court hearings, those charged may be summonsed as witnesses in cases against the facilitators or organisers of people smuggling ventures. The cases of those charged with illegal departure may take years to resolve, requiring on-going court appearances (and illegal departees have no reasonable prospect of a defence). It is unclear to DFAT why such cases take so long. One source suggested that cases are taken forward in court only when all members of a people smuggling venture have been located; while another local source suggested it was simply due to the workings of the Sri Lankan justice system. For many returnees, this means they are subject to the slow processes of the Sri Lankan legal system; some returnees told DFAT that it was difficult and stressful having to return periodically to Colombo for a further hearing in a case where they were uncertain of the outcome.
5.23 While those convicted of the offence of illegal departure may theoretically face a custodial sentence, in practice, local sources suggest, a fine is always imposed and typically this fine is LKR 50,000 - 200,000 (AUD350-1400). Sources suggest those who are unable to pay the fine are permitted to pay in instalments but, if still unable, may be imprisoned for 14 days.
5.24 The severity of the fine for those charged under the I&E Act does not necessarily increase for those who have departed Sri Lanka illegally on more than one occasion. DFAT notes that, while the fines issued for passengers of people smuggling ventures are often low, the cumulative costs associated with regular court appearances over protracted lengths of time can be high. Anecdotal evidence suggests there is an acceptance within the Tamil community that illegal maritime ventures to Australia in search of asylum would be futile at this point in time.
5.25 The minimum age of criminal responsibility in Sri Lanka is 12 years. Under Sri Lankan law, anybody over the age of 12 at the time of their alleged offence is treated as an adult. Children over the age of 12 can therefore be charged with breaking the I&E Act, so long as they were 12 or older at the time of the alleged offence. No charges are imposed against children under 12 years of age or those persons who were younger than 12 at the time of the alleged offence.
5.26 DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure.
Conditions for Returnees
5.27 Between 2010-11 and 2018-19, 3,716 Sri Lankan nationals returned from the Australian community or were removed from Australian onshore immigration detention centres to their country of origin or a third country. Between 2002 and September 2021, the IOM has facilitated the return of 876 Sri Lankans from Australia. Many others returned from the US, Canada, the UK and other European countries. Most returnees are Tamil. Although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin and they have existing family links, or because of the relatively lower cost of living compared to the south.
5.28 Refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. Most returnees have incurred significant expenses or debt to undertake their outward journey. Some voluntary returnees receive reintegration assistance in the form of transport and livelihood support upon return to Sri Lanka from the Government, UN agencies and NGOs, but this requires a returnee to meet strict eligibility guidelines and is minimal. Failed asylum seekers receive limited reintegration assistance. Many returnees have difficulty finding suitable employment and reliable housing on return. Those who have skills that are in high demand in the labour market are best placed to find well-paid employment. The IOM provides eligible returnees with livelihood assistance and makes regular visits to monitor the welfare of returnees.
5.29 Multiple local sources said that some returnees, especially those in the north and east with suspected LTTE links, have been the subject of monitoring by the authorities, involving visits to returnees’ homes and telephone calls by the CID. DFAT understands that most returnees, including failed asylum seekers, are not actively monitored on an ongoing or long-term basis. DFAT is unable to verify whether monitoring, where it occurs, is specific to former LTTE cadres. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had no protection concerns and had not experienced harassment by the authorities, nor received monitoring visits, but DFAT cannot determine if this is the case for all such returnees.
5.30 Bureaucratic inefficiencies present a significant challenge to reintegration for returnees. Refugee returnees, particularly those who returned without UNHCR or IOM facilitation, can experience delays in obtaining necessary identification documents and proof of citizenship. Lack of documentation inhibits access to social welfare schemes and the ability to open bank accounts, find employment or enrol in educational institutions. Limited job availability in the north and east further contributes to difficulties in securing employment and housing. DFAT assesses that reintegration issues are not due to failure to obtain asylum, but rather due to the employment and accommodation difficulties returnees may face. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they were able to reintegrate into their communities and find employment. DFAT understands that returnees may face financial difficulties reintegrating into their communities, including due to sale of their belongings to fund irregular ventures overseas, but do not experience societal discrimination for seeking asylum elsewhere.
5.31 Some refugees and failed asylum seekers reported being pressured upon return to their communities, chiefly for being beneficiaries of financial reintegration assistance. Others experienced resentment upon return because they spent family funds on what proved to be a futile attempt at irregular migration. Overall, DFAT understands that societal discrimination is not a major concern for returnees, including failed asylum seekers. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had not experienced significant societal discrimination following their return.
5.32 DFAT assesses that returnees face a low risk of societal discrimination upon return to their communities. DFAT further assesses that, where it occurs, surveillance of returnees can contribute to a sense of mistrust of returnees within communities.[5]
[5] DFAT, Country Information Report – Sri Lanka, 23 December 2021, pp. 47-49.
Slightly more recent relevant information is contained in a report prepared by the Country of Origin Information Services Section (COISS) of the Department of Home Affairs dated 10 March 2022 – Common Claims – Sri Lanka – extracts of which follow (underlining added):
Tamils
Mistreatment, monitoring and harassment of Tamils in the north and east has increased since the November 2019 presidential election. Reports of monitoring, surveillance, intimidation and harassment of Tamils in day-to-day life by security forces in the north and east of the country have increased since the election of Gotabaya Rajapaksa as president in November 2019,[6] and include a number of reported assaults and arrests and the alleged torture of Tamil civilians.[7] In at least one reported case in 2021, this has resulted in the death of a Tamil civilian in police custody.[8] In January 2022, a Tamil fisherman and activist who had campaigned against military encroachment in the north, was found dead; local politicians and community members in Jaffna alleged he was murdered by the Sri Lankan Navy and called for an inquiry.[9] Communities in both the north and east have reported that monitoring is undertaken by military intelligence and the police Criminal Investigation Department (CID), though in many cases officers dress in plain clothes and do not identify themselves.[10] In the east, community informants – including neighbours and business owners – also reportedly undertake monitoring on behalf of the authorities.[11] A January 2020 UK Home Office fact-finding mission found that while employment opportunities in the north of Sri Lanka and access to housing and land remain limited, opportunities had nevertheless increased prior to the onset of the COVID-19 pandemic.[12] In December 2021, DFAT assessed that ordinary Tamils living in the north and east are at low risk of official harassment and that physical violence against those being monitored is not common.[13]
[6] ‘Jailing Activists and Pardoning Murderers: Monitoring Ten Issues of Concern in Sri Lanka in 2021’, Sri Lanka Campaign for Peace and Justice, February 2022, p.19, 20220218122156; ‘Report of a Home Office fact-finding mission to Sri Lanka’, UK Home Office, 20 January 2020, pp.11,49, 20200123162928; ‘Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka’, OHCHR, 18 February 2020, p.7, 20200221140652
[7] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, pp.7–8, 20220303152645; ‘Sri Lanka: End the use of and repeal the draconian PTA’, Amnesty International, 17 February 2022, p.5, 20220218110132; ‘Sri Lanka military’s latest assault weapon: Barbed wire wrapped palm frond’, Journalists for Democracy in Sri Lanka, 25 January 2022, 20220203171722; ‘Sri Lanka: Torture and Sexual Violence by Security Forces 2020–2021’, Yasmin Sooka and Frances Harrison, International Truth and Justice Project, September 2021, pp.24–27, 20210909092512; ‘Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association’, United Nations Human Rights Council, 05 May 2020, p.13, 20200622112923; ‘Repression of Dissent in Sri Lanka: 1st–31st May 2020’, INFORM Human Rights Documentation Centre, 29 June 2020, p.10, 20200702160949; ‘Report of a Home Office fact-finding mission to Sri Lanka’, UK Home Office, 20 January 2020, pp.11,49, 20200123162928; ‘Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka’, OHCHR, 18 February 2020, p.7, 20200221140652; ‘Country Reports on Human Rights Practices for 2020 - Sri Lanka’, US Department of State, 30 March 2021, p.22, 20210401122412; ‘Tamil youth hospitalised following Sri Lankan army assault in Mannar’, Tamil Guardian, 25 August 2020, 20200828165229; ‘Sri Lankan police arrest ten Tamils in Jaffna’, Tamil Guardian, 11 August 2020, 20200812105606; ‘Falsely arrested and tortured disabled Tamil man submits complaint at Human Rights Commission’, Tamil Guardian, 03 June 2020, 20200604080654
[8] ‘Jailing Activists and Pardoning Murderers: Monitoring Ten Issues of Concern in Sri Lanka in 2021’, Sri Lanka Campaign for Peace and Justice, February 2022, p.31, 20220218122156; ‘Sri Lanka: Torture and Sexual Violence by Security Forces 2020-2021’, Yasmin Sooka and Frances Harrison, International Truth and Justice Project, September 2021, p.33, 20210909092512; ‘Tamil youth was ‘tied to a tree’ and attacked before being ‘beaten to death’’, Tamil Guardian, 05 June 2021, 20210607115206; ‘Tamil youth beaten to death by Sri Lankan Intelligence officials’, Tamil Guardian, 03 June 2021, 20210604102211
[9] ‘Sri Lanka: Family seeks impartial investigation into killing of Tamil fisherman’, Journalists for Democracy in Sri Lanka, 14 January 2022, 20220203172035; ‘Anger in Jaffna after leading Tamil protestor killed by Sri Lankan navy’, Tamil Guardian, 12 January 2022, 20220124113539
[10] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.19, 20211223094818
[11] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p. 19, 20211223094818
[12] ‘Report of a Home Office fact-finding mission to Sri Lanka’, UK Home Office, 20 January 2020, p.12, 20200123162928
[13] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p. 20, 20211223094818
Tamils with certain profiles – such as political activists and journalists – are more likely to attract the attention of authorities. Civil society groups report ongoing harassment and intimidation of family members of individuals who disappeared during the war.[14] Individuals and groups seeking to commemorate the end of the war and fallen LTTE combatants have experienced security forces surveillance, have been stopped from marking these occasions, and in some instances have been arrested – including under the Prevention of Terrorism Act (PTA)[15] – while authorities have proscribed hundreds of Tamil individuals and Tamil organisations, including several diaspora organisations.[16] Despite attention turning to rights violations against the Muslim community in the wake of the 2019 Easter Sunday bombings, a July 2021 report stated that the majority of reported violations continued to be against Tamil Sri Lankans.[17] Tamils maintain they suffer discrimination in areas such as access to university education, government employment, housing and health services;[18] however, a number of sources state that they are not targeted solely on account of their ethnicity.[19] In December 2021, DFAT assessed that while Tamils are under-represented in public sector employment, even in the north and east, this is largely due to language constraints and disrupted education as a result of the war, rather than official discrimination.[20]
[14] ‘Human Rights in Sri Lanka in 2021’, Sri Lanka Campaign for Peace and Justice, 21 December 2021, 20211222090819; ‘Heeding Victims’ Voices: The Struggle of Tamil Families of the Disappeared in Sri Lanka’, Dharsha Jegatheeswaran, Just Security, 03 March 2021, 20211126104053
[15] ‘Jailing Activists and Pardoning Murderers: Monitoring Ten Issues of Concern in Sri Lanka in 2021’, Sri Lanka Campaign for Peace and Justice, February 2022, p.27, 20220218122156; ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.39, 20211223094818; ‘Sri Lanka: Torture and Sexual Violence by Security Forces 2020-2021’, Yasmin Sooka and Frances Harrison, International Truth and Justice Project, September 2021, p.3223, 20210909092512; ‘Sri Lanka army soldiers attack Tamil journalist covering commemoration for civil war dead’, Committee to Protect Journalists (CPJ), New York, 02 December 2021, 20211203112236; ‘Sri Lankan security forces block Sencholai massacre commemoration in Mullaitivu’, Tamil Guardian, 14 August 2021, 20210817153024; ‘Sri Lankan troops break up Tamil remembrance of civil war dead’, Aljazeera, 29 November 2021, 20211130153802; ‘Sri Lankan police threatens to quarantine Tamil families of the disappeared in Batticaloa’, Tamil Guardian, 10 December 2020, 20201211100748; ‘Jaffna Uni student arrested and further crackdown on Karthikai festival’, Tamil Guardian, 29 November 2020, 20201130112301; ‘Sri Lankan police interrogate Tamils over Maaveerar Naal press conference’, Tamil Guardian, 06 December 2020, 20201208164636; Tamil; ‘Abandoned Promises? Preserving Human Rights and Pursuing Accountability in Gota’s Sri Lanka’, Sri Lanka Campaign for Peace and Justice, February 2020, 20200330123213; ‘Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association’, United Nations Human Rights Council, 05 May 2020, p.13, 20200622112923; ‘Repression of Dissent in Sri Lanka: 1st–31st May 2020’, INFORM Human Rights Documentation Centre, 29 June 2020, pp.3, 13, 20200702160949; ‘Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka’, OHCHR, 18 February 2020, p.7, 20200221140652; ‘Report of a Home Office fact-finding mission to Sri Lanka’, UK Home Office, 20 January 2020, p.12, 20200123162928
[16] ‘UN High Commissioner raises concerns of harassment of Tamils and Muslims in Sri Lanka’, Tamil Guardian, 21 June 2021, 20210622103318; ‘Tamil organisations speak out against Sri Lanka’s ban’, Tamil Guardian, 04 April 2021, 20210406172318; ‘Human rights priority countries: ministerial statement for January to June 2021’, United Kingdom Foreign, Commonwealth ＆ Development Office, 23 November 2021, 20211125085659
[17] ‘Repression of Dissent in Sri Lanka: 1st January–31st March 2021’, INFORM Human Rights Documentation Centre, July 2021, p. 15, 20210826101133; Also see: ‘Repression of Dissent in Sri Lanka: 1st–31st May 2020’, INFORM Human Rights Documentation Centre, 29 June 2020, p.21, 20200702160949
[18] ‘Country Reports on Human Rights Practices for 2020 - Sri Lanka’, US Department of State, 30 March 2021, p.28, 20210401122412; ‘Freedom in the World 2021 - Sri Lanka’, Freedom House, 03 March 2021, 20210304102827
[19] E.g. ‘Repression of Dissent in Sri Lanka: 1st–31st May 2020', INFORM Human Rights Documentation Centre, 29 June 2020, pp.3, 10, 22, 20200702160949; ‘Report of a Home Office fact-finding mission to Sri Lanka’, UK Home Office, 20 January 2020, p.12, 20200123162928; ‘Country Policy and Information Note Sri Lanka: Tamil Separatism’, UK Home Office, May 2020, p.9, 20200527172009
[20] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p. 19, 20211223094818
A significant military presence remains in the north and east of the country. While security checkpoints on major roads in the north and east were removed in 2015,[21] some were re-established in the aftermath of the 2019 Easter Sunday bombings and continue to monitor and restrict population movements.[22] Some of this has been associated with the military-led response to the COVID-19 pandemic amid accusations that this has been more strictly policed in minority dominated areas.[23] Government figures show that, by October 2021, around 92 per cent of private land occupied by the military during or following the war had been returned to its owners[24] but displacement of Tamil civilians remains a concern.[25] Although most civilians displaced by the war have resettled, those still displaced mostly live in Jaffna, Kilinochchi, Mannar, and Batticaloa Districts in the north and east, and are unable to return home for reasons that include the presence of land mines and restrictions designating their homes as part of military high security zones.[26] There have also been longstanding reports of the destruction of property before it is handed back and the harassment of individuals who have protested against continuing military occupation.[27] Objections have also been raised that military involvement in sectors of Sri Lanka’s economy challenges the ability of civilians to make a living.[28]
[21] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.17, 20211223094818
[22] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.17, 20211223094818; ‘Freedom in the World 2021 – Sri Lanka’, Freedom House, 03 March 2021, 20210304102827; ‘Fear returns to Sri Lanka after bombings’, Human Rights Watch, 10 May 2019, 20190513142002; ‘Sri Lankan military harass and block Tamil journalists travelling to Mullaitivu despite having permits’, Tamil Guardian, 22 May 2021, 20210524151145; ‘Army fires at tractor illegally transporting sand for failing to stop at checkpoint’, Colombo Page, 22 April 2021, 20210423124946; ‘Human rights priority countries: ministerial statement for January to June 2021’, United Kingdom Foreign, Commonwealth ＆ Development Office, 23 November 2021, 20211125085659
[23] ‘DFAT Country Information Report - Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.17, 20211223094818; ‘Sri Lanka: Experts dismayed by regressive steps, call for renewed UN scrutiny and efforts to ensure accountability’, OHCHR, 05 February 2021, 20210208205940; ‘No more lockdowns, but checkpoints persist in Mullaitivu’, Tamil Guardian, 17 November 2021, 20211119091121 ; ‘Old Ghosts in New Garb: Sri Lanka’s Return to Fear’, Amnesty International, 17 February 2021, e.g. p.52, 20210218125037
[24] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.5, 20220303152645
[25] ‘Promotion reconciliation, accountability and human rights in Sri Lanka: Report of the Office of the High Commissioner for Human Rights’, OHCHR, 27 January 2021, p.12, 20210203162131; ‘Freedom in the World 2021 - Sri Lanka’, Freedom House, 03 March 2021, 20210304102827; ‘Country Reports on Human Rights Practices for 2020 - Sri Lanka’, US Department of State, 30 March 2021, p.20, 20210401122412; ‘Promoting reconciliation, accountability and human rights in Sri Lanka’, United Nations Human Rights Council, 08 February 2019, p.8, 20190311120409
[26] ‘DFAT Country Information Report - Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.46, 20211223094818; ‘Country Reports on Human Rights Practices for 2020 - Sri Lanka’, US Department of State, 30 March 2021, p.20, 20210401122412
[27] ‘Promoting reconciliation, accountability and human rights in Sri Lanka’, United Nations Human Rights Council, 08 February 2019, p.8, 20190311120409
[28] ‘Sri Lanka’s militarisation continues with army involvement in milk production’, Tamil Guardian, 13 December 2020, 20201215150506; DFAT Country Information Report - Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.11, 20211223094818
Civil society groups are concerned that the government is seeking to suppress Tamil identity and culture, especially in the north and east. In February 2020 the Sri Lankan government broke with recent practice and stopped the singing of the national anthem in Tamil at Independence Day celebrations,[29] while the Rajapaksa government has permitted the construction of Buddhist shrines in the predominantly minority Northern and Eastern provinces.[30] In June 2020 a task force was appointed to ‘manage archaeological heritage’ in the Eastern Province whose make-up was entirely Sinhalese and included a number of serving and former military officers among its membership.[31] Minority communities fear that efforts to identify sites of Buddhist archaeological significance are part of a push to change the demographics of the region.[32] Land disputes between the government and minority communities are increasing; between January and November 2021, OHCHR recorded 45 reports of such disputes.[33] In September 2020, 358 acres of land claimed by Tamil farmers in Trincomalee District was taken over by the government after the area was identified as a Buddhist archaeological site.[34] In January 2021 the Mullivaikal Memorial at the University of Jaffna commemorating the deaths of Tamils who died in the closing stages of the war was destroyed, with Sri Lanka security forces preventing students from impeding the demolition.[35] The University later said the monument would be rebuilt.[36] In May 2021, a similar memorial plaque was vandalised in the northern Mullaitivu district, but the army denied involvement in the destruction.[37]
[29] ‘Sri Lanka scraps Tamil national anthem at Independence Day’, Associated Press (AP), 04 February 2020, 20200205170238
[30] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.5, 20220303152645; ‘Report of the Special Rapporteur on freedom of religion or belief A/HRC/40/58/Add.1’, United Nations Human Rights Council, 28 February 2020, p.8, 20200306152353
[31] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.5, 20220303152645; ‘Sri Lanka’s slide into authoritarianism’, Sri Lanka Campaign for Peace and Justice, 10 June 2020, 20200612151317; ‘Sri Lankan Presidential Task Forces are “grounded in Sinhala-Buddhist nationalist ethos” and signal deepening militarisation – PEARL’, Tamil Guardian, 4 June 2020, 20200605073146
[32] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.5, 20220303152645
[33] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.5, 20220303152645
[34] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.5, 20220303152645
[35] ‘Erasing Tamil Legacy in Sri Lanka’, Jurist, 02 February 2021, 20210609140642; ‘Sri Lanka erasing memories of massacres through monument demolition - C.V. Wigneswaran’, Tamil Guardian, 09 January 2021, 20210111134912
[36] ‘Sri Lanka: Tamil war monument to be rebuilt after hunger strike’, British Broadcasting Corporation (BBC), 11 January 2021, 20210112115515
[37] ‘Tamils’ war memorial in Sri Lanka’s Mullaitivu found vandalised’, Hindu, The, 13 May 2021, 20210521122112
In March 2021, the United Nations Human Rights Council passed a resolution condemning Sri Lanka for its failure to provide justice and accountability to victims of crimes committed during, and in the aftermath, of Sri Lanka’s civil war. The resolution establishes an accountability process to collect, analyse, and preserve evidence of international crimes committed in Sri Lanka for use in future prosecutions.[38] It follows President Rajapaksa’s decision in 2019 to withdraw from commitments to promote reconciliation and accountability made to the United Nations by the previous Sirisena government.[39] These commitments included the establishment of four ‘transitional justice mechanisms’: an Office on Missing Persons, an Office for Reparations, a truth and reconciliation commission and a tribunal to investigate and try civil war era crimes.[40] While the Sirisena government made progress on the first two, President Rajapaksa has also been accused of undermining this; for instance, through the appointment of close allies to oversee each organisation.[41] The government’s commitment to a domestic mechanism for reconciliation and accountability has been questioned.[42] Moves to amend the constitution to devolve more power to the Tamil and Muslim dominated north and east have also been shelved.[43] President Rajapaksa has also followed through with an election commitment to protect from prosecution or release military officers accused of civil war era crimes – including, in March 2020, a soldier sentenced to death for the murder of eight Tamil civilians.[44] In August 2021 Sri Lanka’s Attorney General said he would not pursue charges against former Navy Commander Wasantha Karannagoda relating to his alleged involvement in the abduction and murder of 11 Tamil youths in 2008 and 2009.[45] [46]
[38] ‘Sri Lanka: Landmark UN Resolution Promotes Justice’, Human Rights Watch (HRW), 25 March 2021, 20210329104943
[39] ‘Freedom in the World 2021 - Sri Lanka’, Freedom House, 03 March 2021, 20210304102827
[40] ‘Sri Lanka: Resolution 30/1 Implementation Monitor Statistical and Analytical Review No. 4’, Verite Research, 01 March 2019, 20190318141458
[41] ‘New Appointments in Sri Lanka Torpedo what left of the Transitional Justice Mechanisms – Yasmin Sooka’, Sri Lanka Brief, 01 June 2021, 20210602114655
[42] ‘Human Rights and Democracy: 2020 Foreign, Commonwealth & Development Office report’, United Kingdom Foreign, Commonwealth ＆ Development Office, 08 July 2021, 20210715104548; ‘Sri Lanka faces renewed pressure over war crime accountability’, Nikkei Asian Review, 10 February 2021, 20210211145015
[43] ‘A Dangerous Sea Change in Sri Lanka’, International Crisis Group (ICG), 29 January 2020, 20200615164541; ‘Sri Lanka: Resolution 30/1 Implementation Monitor Statistical and Analytical Review No. 4’, Verite Research, 01 March 2019, 20190318141458; ‘Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka’, OHCHR, 18 February 2020, 20200221140652
[44] ‘Sri Lanka frees soldier who killed 8 Tamils’, Hindu, The, 27 March 2020, 20200330121709
[45] ‘Will not proceed with charges against Karannagoda, AG informs court’, Colombo Page, 04 August 2021, 20210805114734; ‘Sri Lanka: Authorities falter on accountability in ‘Navy 11’ case’, Amnesty International, 04 August 2021, 20210805112632
[46] Country of Origin Information Services Section of the Department of Home Affairs dated 10 March 2022 – Common Claims – Sri Lanka, pp.1–5
…
Political opinion
Tamil political party supporters
Tamil parties are generally able to operate freely and contest elections, although there have been increasing reports of the monitoring and harassment of hard-line parties. August 2020 parliamentary elections saw a fragmenting of the Tamil vote, with an increase in votes for both government aligned parties[47] and a corresponding growth in support for hard-line Tamil parties seeking greater autonomy for the country’s north-east. [48] The Tamil National Alliance (TNA) remains the largest single Tamil party, but saw its share of seats drop from 16 in the last parliament to 10.[49] While widely considered to be a moderate party, in December 2020, Public Security Minister Sarath Weerasekara said that a failure to ban the TNA following the end of Sri Lanka’s civil war had been a mistake, and accused the party of encouraging the resurgence of the LTTE.[50] On 6 August 2020, Sri Lankan police broke up a gathering outside a Jaffna election office where TNA members were engaged in an internal party dispute over preferential votes.[51] However, in general there have been few reports of political violence against party members in recent years.[52] There is some limited freedom to express Tamil nationalist ideas;[53] however, more hard-line Tamil parties, including Tamil National People’s Front (TNPF) members involved in planned Remembrance Day and Martyrs Day activities in 2020, have reported recent harassment on the part of Sri Lankan authorities.[54] More generally, civil society organisations state that systemic discrimination negatively affects Tamils’ political participation.[55] [56]
[47] ‘Sri Lanka’s 2020 Parliamentary Election Results – Analysis’, Eurasia Review, 18 August 2020, 20200818104748; ‘Rajapaksa Rule’, Foreign Policy, 14 August 2020, 20200817165533; ‘Incident report - bomb blast. (LTTE, EPDP, Devananda). Cable CL 38062.’, CX11714; ‘The Tamil Makkal Viduthalai Pulikal (TMVP) and Karuna factions; their relationship with each other; reports concerning their treatment of Sinhalese and Tamil citizens; whether they are still active as paramilitary groups’, Canada: Immigration and Refugee Board of Canada (IRB), 17 February 2012, CX288326
[48] ‘Sri Lanka’s 2020 Parliamentary Election Results – Analysis’, Eurasia Review, 18 August 2020, 20200818104748
[49] ‘DFAT Country Information Report - Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.18, 20211223094818; ‘Non-career lawmakers secure political authority’, Daily Mirror (Sri Lanka), 13 August 2020, 20200813135432
[50] ‘Failure to proscribe TNA after the war was a mistake: Sarath Weerasekara’, Daily Mirror (Sri Lanka), 04 December 2020, 20201204142424
[51] ‘Freedom in the World 2021 - Sri Lanka’, Freedom House, 03 March 2021, 20210304102827; ‘Sri Lankan police attack Tamils in Jaffna as frustration mounts over recount’, Tamil Guardian, 06 August 2020, 20200807130249; ‘Internal strife within ITAK takes disturbing turn’, Daily Mirror (Sri Lanka), 29 August 2020, 20200902130420
[52] ‘Sri Lankan police attack Tamils in Jaffna as frustration mounts over recount’, Tamil Guardian, 06 August 2020, 20200807130249; ‘Internal strife within ITAK takes disturbing turn’, Daily Mirror (Sri Lanka), 29 August 2020, 20200902130420
[53] ‘KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT’, Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, p.77, 20210601113225
[54] ‘Tamil political party repeatedly harassed by Sri Lankan police’, Tamil Guardian, 19 February 2020, 20200221135103; ‘Sri Lanka cites COVID-19 to order TNPF leaders into isolation ahead of Mullivaikkal Remembrance Day’, Tamil Guardian, 17 May 2020, 20200518074536; ‘Sri Lankan police enter TNPF offices in Jaffna to stop Maaveerar Naal commemorations’, Tamil Guardian, 27 November 2020, 20201130114324
[55] ‘Freedom in the World 2021 - Sri Lanka’, Freedom House, 03 March 2021, 20210304102827
[56] Country of Origin Information Services Section of the Department of Home Affairs dated 10 March 2022 - Common Claims – Sri Lanka, pp. 9–10
…
Former LTTE members
Those with indirect and past connections with the LTTE, unless at a very high level of the organisation or expressed in criminal acts or war crimes, are unlikely to be of significant interest to the Sri Lankan security forces. Authorities distinguish between so-called ‘low profile’ and ‘high profile’ former LTTE members when assessing their potential security risk.[57] ’Low-profile’ former LTTE members include former combatants, those employed in administrative or other roles, and those who may have provided a high level of non-military support to the LTTE during the war.[58] ‘High-profile’ former LTTE members include individuals who held senior positions in the LTTE’s military wing and civilian administration, and those suspected of terrorist or serious criminal offences during the war, or of providing weapons or explosives to the LTTE.[59] According to the Department of Foreign Affairs and Trade’s (DFAT) most recent country information report, low-profile LTTE members who come to the attention of the Sri Lankan authorities – particularly if they are suspected of having a combat role during the war – would likely be detained for questioning and may be sent for rehabilitation.[60] Following their release, a low-profile former LTTE member may be monitored but would not generally be prosecuted.[61] The number of high-profile former LTTE members living in Sri Lanka is assessed to be small and the majority have already come to the attention of authorities.[62] Any remaining high-profile former LTTE members who came to the attention of the authorities would likely be arrested, detained and prosecuted, and, once they had completed their sentences, would likely be subjected to some form of rehabilitation and continued monitoring.[63]
[57] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 04 November 2019, p.35, 20191104135244
[58] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.26, 20211223094818
[59] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.25, 20211223094818
[60] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.26, 20211223094818
[61] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.26, 20211223094818
[62] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.25, 20211223094818
[63]‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.7, 20220303152645; ‘DFAT Country Information Report - Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, pp.25–26, 20211223094818
Sri Lankan authorities may monitor returning former Liberation Tigers of Tamil Eelam (LTTE) members. The LTTE no longer exists as an organised force in Sri Lanka,[64] and only a few incidents involving former LTTE members have been recorded since the end of the war.[65] For example, in December 2020 a Tamil family, including a woman alleged to be a former LTTE cadre, was stopped while travelling from Kandy to Jaffna in possession of what police said was an explosive, while in July 2020 there was a failed attempt by a former LTTE cadre to carry out a suicide bombing.[66] Nevertheless, the government is sensitive to the potential re-emergence of the LTTE,[67] and former LTTE members may be monitored.[68] Northern Province sources allege that security services’ intimidation of ex-LTTE members has increased since President Rajapaksa’s Sri Lanka Podujana Peramuna (SLPP) swept local government elections in February 2018,[69] while there were reports following the 2019 Easter Sunday bombings that Sri Lankan security forces sought to co-opt ex-LTTE members as informants.[70] The extent of monitoring typically depends on an individual’s seniority within the LTTE; ongoing involvement with politically-sensitive issues, including protests relating to disappeared persons; and links to the Tamil diaspora, particularly elements considered radical by the government.[71] For example, in June 2020 a prominent Norway-based activist was reportedly detained at Colombo’s airport when seeking to leave Sri Lanka – he was released after questioning.[72] Defence Secretary Kamal Gunaratne claimed in August 2020 that remnants of the LTTE were attempting to recruit new supporters and vowed the government would not permit room for separatism.[73]
[64] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.25, 20211223094818
[65] E.g. ‘Ex-LTTE cadre, wife and sister arrested with firearms, explosives’, Colombo Page, 13 October 2019, 20191014130858; ‘An Accidental Bomb Blast Identified an Active LTTE Intelligent Agent’, Asian Tribune, 07 July 2020, 20200709151217; ‘Tamil family arrested by Sri Lankan police’, Tamil Guardian, 08 December 2020, 20201209152104; ‘Sri Lankan intelligence arrest two Tamils for allegedly manufacturing firearms’, Tamil Guardian, 22 October 2020, 20201023103006
[66] ‘Tamil family arrested by Sri Lankan police’, Tamil Guardian, 08 December 2020, 20201209152104; ‘KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT’, Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, p.74, 20210601113225
[67] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.24, 20211223094818
[68] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, pp.19, 49, 20211223094818 ; ‘Report of a Home Office fact-finding mission to Sri Lanka’, UK Home Office, 20 January 2020, p.16, 20200123162928
[69] ‘Report of a Home Office fact-finding mission to Sri Lanka’, UK Home Office, 20 January 2020, p.15, 20200123162928
[70] ‘Sri Lankan military orders former LTTE cadres to become informants’, Tamil Guardian, 1 May 2019, 20190710121751
[71] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, pp.25–27, 20211223094818 ; ‘KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT’, Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, p.119, 20210601113225
[72] ‘Key LTTE activist in Norway - Nadaraja Sethuparan arrested at BIA’, Asian Tribune, 23 June 2020, 20200624105850
[73] ‘Sri Lankan Defence Secretary claims ‘need to eliminate separatist ideology’ in North-East and Tamil diaspora’, Tamil Guardian, 17 August 2020, 20200818105547
Individuals advocating more broadly for Tamil separatism may also attract the attention of Sri Lankan authorities.The majority of available sources indicate that those who hold a ‘significant role’ in Tamil separatist activities: e.g. through holding leadership positions in Tamil diaspora groups, particularly those deemed to hold radical views; those formerly part of the LTTE, particularly in high-profile roles; those suspected of raising funds for the LTTE during the war; and those who actively advocate for Tamil statehood would likely be of particular interest to the Sri Lankan authorities.[74] However, a May 2021 UK Upper Tribunal decision ruled that lower profile individuals active in the diaspora who express a belief in Tamil separatism may also attract attention,[75] and that Sri Lankan authorities draw no material distinction between violent separatism, as espoused by the LTTE, and non-violent advocacy for that end.[76] Individuals seeking to commemorate the end of the war and LTTE combatants killed during it have reported security forces surveillance, have been prevented from doing so, and in some cases have faced arrest – including under PTA.[77] For example, Martyrs Day commemorations (marked in honour of Tamil fighters killed during the war) were held in 2019, following the change of government, although there were incidents of harassment by local authorities, along with the arrest of some individuals involved in preparations.[78] However, commemorations were banned in 2020, with police citing a prohibition on gatherings due to COVID-19.[79] Some commemorations went ahead in spite of the ban, and there were a number of reports of these being disrupted or of those responsible being arrested under the PTA.[80] Authorities have arrested at least 70 people under the PTA for sharing commemorative social media posts containing LTTE images or Tamil nationalist iconography.[81]
[74] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, pp.25–27, 20211223094818; ‘KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT’, Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, pp.119–120, 20210601113225
[75] ‘KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT’, Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, e.g. pp.133–134, 142–143, 20210601113225
[76] ‘KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT’, Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, p.76, 20210601113225
[77] ‘Sri Lanka maintains detention of Tamils commemorating Mullivaikkal’, Tamil Guardian, 29 July 2021, 20210730104553; ‘Arrests in Jaffna as Sri Lankan police block Thileepan commemorations’, Tamil Guardian, 15 September 2020, 20200916075319; ‘Sri Lankan police crackdown on rememberance of Thileepan’, Tamil Guardian, 16 September 2020, 20200921124107; ‘Repression of Dissent in Sri Lanka: 1st – 31st May 2020’, INFORM Human Rights Documentation Centre, 29 June 2020, pp.3, 13, 20200702160949; ‘Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka’, OHCHR, 18 February 2020, p.7, 20200221140652; ‘Good Governance allows the Martyrs Day – ‘Maveerar Naal’ celebrations on the sly’, Asian Tribune, 26 November 2017, CXC90406618275; ‘Thousands attend Maaveerar Naal commemorations at destroyed Thuyilum Illam in Kilinochchi’, Tamil Guardian, 27 November 2017, CXC90406620312; ‘Martyrs Day’ events end in N-E’, Ceylon Today, 28 November 2017, CXC90406620309; ‘LTTE’s martyrs remembered at Valvettithurai’, Valvettithurai.org, 21 November 2017, CISEDB50AD7706; ‘Defying Confusing Magisterial Orders Prabhakaran’s Birthday Celebrated Widely’, Colombo Telegraph, 27 November 2018, CXBB8A1DA39486; ‘Mahaveer Naal celebrated without any major incidents in the North’, Asian Tribune, 28 November 2017, CXC9046618423; ‘Sri Lankan regime backing away from conflict resolution vows’, Asia Times, 5 December 2017, CXC90406618789
[78] ‘Tamil nation commemorates Maaveerar Naal 2019’, Tamil Guardian, 27 November 2019, 20191128160424; ‘Trouble brews in post-election Sri Lanka’, Aljazeera, 08 December 2019, 20191209095947
[79] ‘Sri Lanka: 2020 Heroes’ day commemorations are banned in North and East’, Sri Lanka Brief, 21 November 2020, 20201126120248
[80] ‘Sri Lankan police enter TNPF offices in Jaffna to stop Maaveerar Naal commemorations’, Tamil Guardian, 27 November 2020, 20201130114324; ‘Priest arrested for organizing LTTE Heroes’ Day commemorations’, Colombo Page, 28 November 2020, 20201130113318; ‘Maaveerar Naal marked by Tamil politicians across the North-East’, Tamil Guardian, 27 November 2020, 20201130113709
[81] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.10, 20220303152645
In March 2021, the Rajapaksa government announced it would establish new rehabilitation centres to ‘de-radicalise’ individuals promoting extremist ideologies. The plan, part of regulations enacted under the PTA, reportedly gives the government the power to arrest and transfer people to a rehabilitation centre for up to two years.[82] An extraordinary gazette dated 12 March 2021 said that this will apply to individuals suspected of holding ‘radical’ or ‘extremist’ views or who cause or plan acts of violence or religious, racial, or communal disharmony.[83] Authorities will be able to choose rehabilitation in lieu of prosecution,[84] and in May 2021, a close Rajapaksa ally was appointed as ‘rehabilitation facilitator’ for the north and east.[85] A Supreme Court ruling in early August 2021 temporarily suspended the plan while it considers arguments against it.[86] Critics, including the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, have warned that the regulations may jeopardize the rights and liberties of persons who may be detained arbitrarily, especially religious and ethnic minorities, and may curtail political dissent with no effective due process guarantees.[87]
[82] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.10, 20220303152645; ‘What is behind the anti-Muslim measures in Sri Lanka?’, Aljazeera, 12 April 2021, 20210413125122
[83] ‘Sri Lanka To Set Up Rehabilitation Centers For Extremists – Analysis’, Eurasia Review, 15 March 2021, 20210316115940
[84] ‘Sri Lanka To Set Up Rehabilitation Centers For Extremists – Analysis’, Eurasia Review, 15 March 2021, 20210316115940
[85] ‘Rajapaksa ally appointed as rehabilitation facilitator for North-East of Sri Lanka’, Tamil Guardian, 05 May 2021, 20210506220746
[86] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.10, 20220303152645; ‘Supreme Court suspends presidential order for de-radicalization of extremists’, Colombo Page, 05 August 2021, 20210806143527
[87] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.10, 20220303152645
The Prevention of Terrorism Act (PTA) has been used to arrest hundreds of mostly Muslim Sri Lankans as part of investigations into the 2019 Easter Sunday bombings, although most have now been released. Prior to the Easter Sunday bombings, government statistics indicated that the majority of individuals held under the PTA were Tamils detained in many cases for years in connection with serious security offences.[88] Since the Easter Sunday bombings, hundreds of Muslims have been arrested under the PTA, some without evidence.[89] Government data indicate that, as of 2 December 2021, 333 people were detained under the PTA, of whom 16 were convicted, 11 were under appeal and the remaining were detained as suspects.[90] Eighty-one PTA detainees have been released since June 2021.[91] The Human Rights Commission of Sri Lanka recorded 109 arrests under the PTA in 2021.[92]
[88] ‘Sri Lankan Minister claims all pending pre-2016 PTA cases ‘to be concluded in next three months’, Tamil Guardian, 15 August 2021, 20210819124012; Country Information Request CI181005093018339 – Current status of PTA in Sri Lanka’, Department of Foreign Affairs and Trade, 5 November 2018, CXBB8A1DA37923; ‘UN Special Rapporteur (Ben Emmerson) on human rights and terrorism in Sri Lanka’, Australian Department of Foreign Affairs and Trade, 14 August 2017, p.2, CISEDB50AD5239; ‘PTA suspended pending passage of new Counter Terrorism Law’, Island, The, 8 February 2017, CXC90406620371; ‘Human rights and counter terrorism: UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism concludes visit to Sri Lanka, Preliminary findings of the visit to Sri Lanka’, Office of the United Nations High Commissioner for Human Rights, 14 July 2017, CXC90406610453; ‘Locked up without evidence: Abuses under Sri Lanka’s Prevention of Terrorism Act’, Human Rights Watch, 29 January 2018, p.5, CIS7B83941158; ‘Report of the Working Group on Arbitrary Detention on its visit to Sri Lanka’, UN Human Rights Council, 23 July 2018, p.7, CIS7B839419490; ‘Police arrest 2289 over Easter Sunday terror attacks – Police Spokesman SP Ruwan Gunasekara’, The Sunday Reader, 3 June 2019, 20190711142139; ‘Over 2,280 suspected arrested since Easter Sunday terror attacks’, Daily News, 5 June 2019, 20190710120316; ‘Brother of Suicide Bomber Arrested’, Daily News, 10 May 2019, 20190510123043; ‘Govt urged to review ‘security reforms’ as 60 suspects taken in under PTA’ The Island, 25 April 2019, 20190508133730; ‘Official list of detainees under PTA’, Ceylon Today, 30 July 2017, CXC90406612037; ‘Promotion reconciliation, accountability and human rights in Sri Lanka: Report of the Office of the High Commissioner for Human Rights’, OHCHR, 27 January 2021, p.13, 20210203162131
[89] ‘“In a Legal Black Hole”: Sri Lanka’s Failure to Reform the Prevention of Terrorism Act’, Human Rights Watch (HRW), 07 February 2022, p.6, 20220209162013
[90] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.10, 20220303152645
[91] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.10, 20220303152645
[92] ‘“In a Legal Black Hole”: Sri Lanka’s Failure to Reform the Prevention of Terrorism Act’, Human Rights Watch (HRW), 07 February 2022, p.8, 20220209162013
Torture and ill-treatment of detainees has been most closely associated with detention under the PTA but can also occur during general police investigations. The systemic use of torture by police is well-documented, and is particularly associated with those arrested and detained under the PTA.[93] Reports indicate that ill-treatment and torture by the police also occurs in non-PTA cases in order to extract confessions or elicit evidence against the accused, and has resulted in deaths.[94] While the risk of torture has decreased since the end of the war, DFAT assesses that it is still used, including as a routine tool of policing.[95] Multiple local sources have told DFAT that police routinely mistreat suspects during criminal investigations, including using torture to extract confessions.[96] DFAT states that torture, where it occurs, is not confined to a particular geographic region or ethnic group, but is a nationwide problem which affects all communities; however, it is more likely to affect poor and marginalised groups, such as members of criminal groups and LGBTI individuals.[97] DFAT assesses that, while Sri Lankans face a low risk of torture overall, those detained face a moderate risk of torture, particularly if they are poor, associated with criminal elements, or are perceived to challenge the government.[98] A number of human rights groups claim that Tamils have been disproportionately affected and police are generally not held accountable.[99] Tamil asylum seekers continue to make periodic claims of torture on account of their ethnicity and accusations of ties to the LTTE.[100] DFAT states that few reports of torture are investigated or verified within Sri Lanka, making it difficult to determine the exact prevalence of torture.[101] In recent years, the Human Rights Commission of Sri Lanka (HRCSL) has carried out routine visits to detention sites; however, in its December 2021 report, DFAT was not able to confirm if these visits continue.[102] Local sources have told DFAT that, since the passage of the 20th Amendment to the Constitution, the HRCSL is no longer truly independent and much less effective in its anti-torture role.[103]
[93] ‘BTI 2022 Country Report - Sri Lanka’, Bertelsmann Stiftung, 23 February 2022, p.14, 20220224093201; ‘Promotion reconciliation, accountability and human rights in Sri Lanka: Report of the Office of the High Commissioner for Human Rights’, OHCHR, 27 January 2021, p.10, 20210203162131; ‘Country Reports on Human Rights Practices for 2020 - Sri Lanka’, US Department of State, 30 March 2021, p.6, 20210401122412
[94] ‘Country Reports on Human Rights Practices for 2020 - Sri Lanka’, US Department of State, 30 March 2021, p.6, 20210401122412; ‘Promotion reconciliation, accountability and human rights in Sri Lanka: Report of the Office of the High Commissioner for Human Rights’, OHCHR, 27 January 2021, p.10, 20210203162131’
[95] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.41, 20211223094818
[96] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.40, 20211223094818
[97] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.40, 20211223094818
[98] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.41, 20211223094818
[99] ‘Freedom in the World 2021 - Sri Lanka’, Freedom House, 03 March 2021, 20210304102827; ‘Human Rights Watch World Report 2018’, Human Rights Watch, 18 January 2018, p.507, NGED867A63
[100] ‘Sri Lanka: Torture and Sexual Violence by Security Forces 2020–2021’, Yasmin Sooka and Frances Harrison, International Truth and Justice Project, September 2021, pp.24–27, 20210909092512
[101] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.41, 20211223094818
[102] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.41, 20211223094818
[103] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.41, 20211223094818
The government has introduced a bill to amend the PTA which critics say is ineffective and does not adequately address human rights concerns. In January 2022, the government gazetted a bill to amend the PTA.[104] The United Nations High Commissioner for Human Rights and civil society groups have criticised the bill, calling for the PTA to be repealed and a moratorium on its use in the interim.[105] They said the proposed amendments failed to address aspects of the PTA which have enabled human rights abuses and the targeting of minorities, critics and journalists.[106] These include: a vague, overly broad offence of terrorism; the admissibility of confessions despite evidence of torture of PTA detainees; a lack of due process safeguards at the time of arrest; the use of arbitrary arrest and prolonged detention, and a lack of judicial scrutiny.[107]
Fear of harm from paramilitary groups or gangs
Paramilitary groups have disbanded although some gang activity continues in the north. At the conclusion of the civil war, military intelligence and security personnel, sometimes allegedly working together with paramilitary groups, were responsible for the detention of civilians accused of having LTTE connections.[108] Although paramilitaries are no longer active, there are reports that former members of Tamil paramilitary groups are engaged in criminal activities.[109] Since mid-to-late 2017, there have been periodic reports of violent attacks in Jaffna and the Northern Province committed by members of the so-called ‘Aava’ (or ‘Ava’) gang,[110] while there have also been reports of substantial gang violence more broadly in the north.[111] Some Tamil sources say that the Aava gang is enabled by Sri Lanka military intelligence, but DFAT has not been able to verify this.[112] Several former paramilitary leaders are involved in mainstream politics. Following Gotabaya Rajapaksa’s election as president in November 2019, former paramilitary leader Douglas Devananda was appointed fisheries minister; another former paramilitary leader, Pillayan, was elected in August 2020 parliamentary elections despite being in remand custody over the killing of a political opponent, and charges against him were dropped in January 2021.[113] Karuna Amman, former leader of the paramilitary Karuna Group, and later the Tamil party Tamil Makkal Viduthalai Pulikal (TMVP), is now a member of the Sri Lanka Freedom Party (SLFP), part of the government’s ruling coalition.[114] Overall, incidents of extra-judicial killing, disappearances and abductions, including incidents of violence involving former LTTE members, have decreased considerably since the end of the civil war.[115] [116]
…
Complementary protection
Failed asylum seekers who departed illegally
Failed asylum seekers who depart Sri Lanka irregularly by boat are generally considered to have committed an offence under the Immigrants and Emigrants Act. Under the Act, Sri Lankan citizens must only leave Sri Lanka from approved ports of departure using a valid Sri Lankan passport.[117] On arrival at the airport in Colombo, returnees are interviewed by Sri Lankan Immigration; depending on their circumstances of their departure and their history, other agencies such as the Criminal Investigations Department (CID), the Sri Lankan State Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI) may also conduct interviews.[118] Returnees who departed Sri Lanka illegally will be referred to the Criminal Investigations Department (CID) at the airport and charged accordingly.[119] Once charged, returnees are taken to Negombo Magistrate’s Court where they are typically bailed and released.[120] The cases of those charged with illegal departure may take years to resolve, requiring on-going court appearances.[121]
Returnees who illegally departed Sri Lanka are fined. Although it is theoretically possible for those convicted of illegal departure to face a custodial sentence, in practice, according to local sources, a fine is imposed, typically LKR 50,000 - 200,000 (AUD350-1400).[122] Those who are unable to pay the fine may pay in instalments, but if still unable, may be imprisoned for 14 days.[123] Fines may be issued to act as a deterrent towards joining boat ventures in the future.[124] Children over the age of 12 can be charged with breaking the Immigration and Emigrants Act, as long as they were 12 or over at the time of the offence.[125] DFAT is not aware of any returnees in 2021 being detained for matters other than illegal departure, although the number of returnees was reduced due to COVID-19.[126] DFAT is also not aware of any returnees being mistreated at the airport.[127]
Organisers and facilitators of people smuggling ventures face criminal prosecution. Persons who departed illegally are interviewed by authorities at the airport upon arrival in Sri Lanka; and that information can be used to identify captains or organisers of people smuggling ventures.[128] Facilitators and organisers of irregular migration from Sri Lanka, including captains and their crew, may be charged with an offence under section 45 C of the Immigrants and Emigrants Act.[129]They are typically refused bail.[130] Those found guilty normally receive prison sentences of between one and three years depending on the extent of their involvement, with sentences usually closer to three years.[131] Individuals prosecuted are typically limited to on-board crew, including those skippering and operating asylum-seeking vessels.[132] However, authorities have also prosecuted high level syndicate leaders linked to people smuggling ventures.[133]
Sri Lankan authorities collect and maintain intelligence on returnees, including through the use of ‘stop’ and ‘watch’ electronic databases accessible at Colombo airport. Different agencies, including the Department of Immigration and Emigration, the State Intelligence Service, the Criminal Investigation Department and sometimes the Terrorism Investigation Division process returnees upon arrival at Colombo airport.[134] Those with a former LTTE connection are likely to be questioned, although sources indicate this would depend on the case.[135] These agencies check travel documents and identity information against immigration and intelligence databases and records of outstanding criminal matters.[136] Credible sources state that, as part of this process, police will seek to confirm the identity of returnees travelling on temporary travel documents.[137] Where there are outstanding criminal warrants, criminal procedures will apply.[138] ‘Stop’ lists include names of those individuals that have an extant court order, arrest warrant or order to impound their Sri Lankan passport.[139] Those who appear on this list will reportedly be detained at the airport.[140] ‘Watch’ lists include names of those individuals that the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities.[141] A May 2021 UK Upper Tribunal decision found that additional questioning over and above the confirmation of identity for those travelling on a temporary travel document is only reasonably likely to occur where an individual’s name appears on one of these lists.[142] [143]
[104] ‘Constitutionality of PTA amendment bill challenged in SC’, Daily Mirror (Sri Lanka), 14 February 2022, 20220218114502; ‘“In a Legal Black Hole”: Sri Lanka’s Failure to Reform the Prevention of Terrorism Act’, Human Rights Watch (HRW), 07 February 2022, p.1, 20220209162013
[105] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.9, 20220303152645; ‘Sri Lanka: End the use of and repeal the draconian PTA’, Amnesty International, 17 February 2022, p.3, 20220218110132; ‘Civil Society statement on proposed amendments to Prevention of Terrorism Act’, Daily FT, 08 February 2022, 20220216170455
[106] ‘Civil Society statement on proposed amendments to Prevention of Terrorism Act’, Daily FT, 08 February 2022, 20220216170455
[107] ‘Sri Lanka: End the use of and repeal the draconian PTA’, Amnesty International, 17 February 2022, p.3, 20220218110132; ‘Civil Society statement on proposed amendments to Prevention of Terrorism Act’, Daily FT, 08 February 2022, 20220216170455
[108] ‘Written statement* submitted by ASSOCIATION CULTURELLE DES TAMOULS EN FRANCE, a non-governmental organization in special consultative status’, Association Culturelle Des Tamouls En France, United Nations Human Rights Council, 25 February 2022, p.2, 20220303165142; ‘Country Reports on Human Rights Practices for 2015 – Sri Lanka’, US Department of State, 13 April 2015, p.7, OGD95BE926320
[109] ‘Focus Sri Lanka’, State Secretariat for Migration, Switzerland, 29 July 2021, p.8, 20220304153758
[110] ‘DFAT Country Information Report - Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.17, 20211223094818; ‘We will not allow Aava group to raise its head: Law & Order Minister’, Lanka Business Online, 17 November 2017, CXC90406617954; ‘Sri Lanka police arrest six members, including leader of criminal Ava gang’, Colombo Page, 7 August 2017, CXC90406611722
[111] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.17, 20211223094818; ‘North in the grip of armed gangs again’, Sunday Times (Sri Lanka), 11 July 2021, 20220304162027
[112] ‘Sri Lankan police arrest Tamil youth over alleged gang affiliation’, Tamil Guardian, 12 October 2021, 20211013101949; ‘DFAT Country Information Report - Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.17, 20211223094818
[113] ‘Jailing Activists and Pardoning Murderers: Monitoring Ten Issues of Concern in Sri Lanka in 2021’, Sri Lanka Campaign for Peace and Justice, February 2022, p.13, 20220218122156; ‘Sri Lanka’s interim cabinet under new President sworn-in’, Colombo Page, 22 November 2019, 20191231122548; ‘Four members of Rajapaksa family find place in Sri Lanka cabinet’, Aljazeera, 12 August 2020, 20200813134733; ‘Court allows remanded MP-elect Pillayan to attend sessions of new parliament’, Colombo Page, 18 August 2020, 20200819210740
[114] ‘DFAT Country Information Report - Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.25, 20211223094818
[115] ‘DFAT Country Information Report - Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.17, 20211223094818
[116] Country of Origin Information Services Section of the Department of Home Affairs dated 10 March 2022 – Common Claims – Sri Lanka, pp 13–19
[117] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818; ‘Immigrants and Emigrants Act (Sri Lanka), No. 20 of 1948 (1 November 1949), CISBE8E6BE638
[118] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818
[119] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818
[120] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818
[121] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.48, 20211223094818
[122] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.48, 20211223094818
[123] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.48, 20211223094818
[124] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 04 November 2019, p.68, 20191104135244
[125] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.48, 20211223094818
[126] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818
[127] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818
[128] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818; ‘Country Information Request No. LKA15302 and LKA15586: Treatment of suspected people smugglers’, Department of Foreign Affairs and Trade, 1 January 2014, CX317331
[129] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 04 November 2019, p.68, 20191104135244
[130] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818
[131] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 04 November 2019, p.68, 20191104135244
[132] ‘Asylum seekers transferred at sea by Australia to face court in Sri Lanka’, Guardian (Unlimited) (UK), 20 February 2015, CXBD6A0DE1686
[133] ‘The risky ride to nowhere’, Sunday Observer, 10 April 2016, CX6A26A6E4697
[134] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818; ‘LKA200301.E Sri Lanka: Treatment by authorities of returnees to Sri Lanka, including failed refugee claimants and family members of persons who have left Sri Lanka and claimed refugee status (2017–August 2020)’, Immigration and Refugee Board of Canada, 04 August 2020, 20201019173203
[135] ‘Report of a Home Office fact-finding mission to Sri Lanka’, UK Home Office, 20 January 2020, p.18, 20200123162928
[136] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818
[137] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818
[138] ‘Country Policy and Information Note Sri Lanka: Tamil Separatism’, UK Home Office, May 2020, p.73, 20200527172009
[139] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.24, 20211223094818
[140] ‘KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT’, Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, p.119, 20210601113225; ‘Country Policy and Information Note. Sri Lanka – Tamil Separatism’, Version 7.0, UK Home Office, 17 June 2021, p.8, 20210624114752
[141] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.24, 20211223094818
[142] ‘KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT’, Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, pp.118–119, 20210601113225; ‘Country Policy and Information Note. Sri Lanka – Tamil Separatism’, Version 7.0, UK Home Office, 17 June 2021, p.8, 20210624114752
[143] Country of Origin Information Services Section of the Department of Home Affairs dated 10 March 2022 – Common Claims – Sri Lanka, pp 22–24
Hearing, credibility, findings, and assessment
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by suppliants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Sri Lanka and accordingly his claims will be assessed against Sri Lanka.
In addition to reviewing written claims and submissions, the Tribunal has either reviewed or listened to the various interviews and oral questioning of the applicant over time including:
·POD interview on 6 February 2012
·Entry Interview on 14 April 2012
·IPA interview on 28 August 2012
·Delegate interview relating to current application on14 November 2017
The applicant been through four separate interview processes relating to his claims for protection where he has been asked detailed questions about his claims for protection. There has been a broad consistency in his core claims over time. The positive IPA assessment determined that in the relevant interview the applicant gave evidence generally in a direct manner with little hesitation. The Tribunal is of the view that this characterises most of the applicant’s oral evidence over time. Additionally, the applicant gave evidence as to being harmed during the three days that he and others were questioned under suspicion of being involved in a bomb attack that had detail and an emotional content that persuaded the Tribunal that the applicant was recounting truthfully traumatic events.
The Tribunal also notes the consistency and detail with which the applicant has described the requirement that he report weekly to the army camp after this initial questioning, including being intimidated and harmed in these encounters.
The Tribunal has noted some inconsistencies in the applicant’s oral evidence over time in contrast with written claims, but these are relatively minor and peripheral, not undermining core claims that the applicant was suspected of being involved in a bomb blast and been required to report weekly to authority subsequently.
The Tribunal is quite satisfied that the applicant and others were suspected of being involved in a bomb blast and questioned and physically harmed by authorities over a period of three days. The Tribunal is satisfied that the applicant was then required to report weekly to authorities, which he did for a significant period. The Tribunal, although considering that there may be some embellishment in the applicant’s claims as to physical harm when he reported, the Tribunal is satisfied that there was at the very least intimidating treatment.
The Tribunal has some credibility reservations that whether the other three or four individuals who were questioned at the same time went missing was the catalyst for the applicant deciding not to report and to flee the country. Nevertheless, the Tribunal is satisfied that at a certain point the applicant as a result of the volatile security situation in Sri Lanka and the ongoing requirement that he report to the army when the applicant would be intimidated resulted in the applicant and his family deciding that he should leave Sri Lanka. The Tribunal is satisfied that the applicant failed to report to the army as required resulting in the army visiting the applicant’s family home, after the applicant had left the home, but before he had left Sri Lanka.
The Tribunal has some credibility concerns over claims by the applicant that authorities have continued to visit his family seeking him after he left the country, and that his brother had been beaten by the army after running away when shots were fired near the family home 17 days before the IPA interview. This however does not cause the Tribunal to disbelieve the applicant’s claims that he failed to continue to report to the army as required and left the country.
The positive IPA assessment found that the adverse treatment of the applicant by authorities was because of his suspected involvement with the LTTE and that the army and local authorities would know of the claimant given this history. The assessment accepts that on the applicant’s arrival in Sri Lanka or shortly after the applicant would be identified as having been detained and requiring to report as a result of his involvement in or knowledge of a bombing of an army checkpoint, he would be considered as a person involved in anti-government activities and/or being a supporter of the LTTE. The assessment accepts that independent information makes clear the torture, detention and ill-treatment of those perceived as having an LTTE association occurs. On that basis the applicant was deemed as being owed protection.
The Tribunal agrees with IPA findings that the applicant failed to report as required to the army and left the country. The Tribunal is satisfied from current independent evidence that there would be either notation on centralised government systems or enquiries made about the applicant locally that would identify that the applicant was a person of adverse interest suspected of involvement in an LTTE attack and failed at a certain point to report to the army as required.
The Tribunal notes that the recent COISS research from March 2022 indicates that torture and ill-treatment of those detained by authorities continues both for those detained under the PTA and also during general police investigations. The research elaborates that ill-treatment and torture occurs in non-PTA cases in order to extract confessions or elicit evidence against the accused, including resulting in deaths. Although the prevalence of torture has decreased since the end of the war, it is assessed that it is still used as a routine tool of policing.
As indicated, the Tribunal is satisfied that upon return to Sri Lanka the applicant would be identified as a person who failed to report to the army as required following being suspected of being involved in an LTTE bomb blast. The Tribunal is satisfied that this will then result in intensive questioning by authorities as to why he failed to report and left the country, increasing suspicion that the applicant did have the claimed involvement in the bombing and LTTE involvement. The Tribunal is satisfied that on the basis of current independent evidence that the applicant faces physical mistreatment during this process of questioning.
The Tribunal considers that there is a real chance of the applicant facing not insignificant physical harassment amounting to serious harm during this process of questioning. The Tribunal considers that the essential and significant reason for the harm would be as a result of the applicant belonging to a particular social group of individuals who have failed to report as required to authorities and/or imputed past involvement in the LTTE and being involved in harmful political attacks.
As the harm would be perpetrated by instruments of the state on or soon after the applicant’s arrival in Sri Lanka, the Tribunal considers that the risk of harm applies to all parts of the country. Given that the risk of harm is from instruments of state the Tribunal does not consider that authorities are in a position to provide effective protection for the applicant.
The Tribunal is satisfied that the applicant does not have the right to enter and reside in any third country.
The Tribunal notes that on the basis of current factual findings the applicant will be owed protection in Australia as long as independent evidence substantiates that those who are seriously suspected of significant breaches of the law and questioned by Sri Lankan authorities face mistreatment and torture as part of the process. The Tribunal is not satisfied that the current economic and political upheaval in Sri Lanka eliminates or reduces this risk to less than a real chance.
Given these findings, the Tribunal is satisfied that the applicant faces a real chance of serious harm for at least some of the reasons claimed. The Tribunal is satisfied that the applicant has a well-founded fear of persecution for a reason set out in s 5J(1) of the Act.
For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
The Tribunal is not satisfied that the other applicant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the applicant daughter is the daughter of the applicant and is a member of the same family unit as the applicant for the purposes of s 36(2)(b)(i). As such, the fate of her application depends on the outcome of the applicant’s application. It follows that the other applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
decision
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii) that the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
David McCulloch
MemberAttachment - 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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Natural Justice
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Remedies
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