1730595 (Refugee)

1730595 (Refugee) [2022] AATA 5147 (16 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Jeri Levinksy (MARN: 0214675)
CASE NUMBER:  1730595
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Luke Hardy
DATE:16 November 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 November 2022 at 11:08am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion – alleged involvement with the Liberation Tigers of Tamil Eelam (LTTE) – kidnapped by paramilitaries from the Karuna group – detained by the CID - particular social group – lengthy time out of Sri Lanka – fear of detention – fear of torture – limited health care – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 5K-LA, 36,65, 499
Migration Regulations 1994
CASES
Sun v MIBP [2016] FCAFC 52
Selvadurai v MIEA (1994) 34 ALD 347
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Safe Haven Enterprise Visa which is a protection visa (PV) subclass under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a citizen of Sri Lanka. He arrived in Australia [in] March 2010 as an “unauthorised maritime arrival” (UMA). He lodged an application for refugee status assessment on 29 May 2010 but was found not to be a refugee on 8 June 2010. He sought review of that outcome but was found not to be owed protection. However, an independent merits review recommended that the Minister lift a statutory bar on further applications having found that the applicant was owed protection. The bar was lifted on 29 January 2015 and the applicant applied for a Safe Haven Enterprise Visa on 16 November 2015. The matter went before the delegate in this matter and the delegate refused the visa on 27 November 2017.
The applicant sought merits review by this Tribunal. For the purposes of this review, the applicant submitted a copy of the 27 November 2017 decision, which contains a summary of evidence prided to various delegates in all interviews then to date.
The review application was constituted to me. I find the review application valid.
The applicant appeared before the Tribunal on 10 November 2022 to give evidence and present arguments. The hearing was conducted as an MS teams meeting in view of the applicant’s health issues and concerns about catching Covid-19. The applicant was accompanied by his adviser, a registered migration agent.
The Tribunal hearing was facilitated by an interpreter in the Tamil-English medium.
Prior to the hearing I was advised that the applicant was diagnosed with anxiety and that this and his other health issues, [health conditions deleted], caused him to be frail. The adviser said her client’s mental health had been affected by the uncertainty of his legal status in Australia over a long time. In these circumstances I was asked to proceed in the matter having regard to the Tribunal’s guidelines in the taking of evidence from vulnerable persons, which discuss the potential effects of stress and anxiety on memory and the capacity to provide consistent evidence about traumatic past events. I duly heeded the adviser’s requests. For example, I took special care to describe the inquisitorial process to the applicant, explained the need to ask occasionally challenging questions and introduced a break in the hearing so that the applicant take a short rest. Overall, I am satisfied that the applicant was not prevented from giving cogent evidence by any circumstances beyond his control.
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 (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, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ("the complementary protection criterion"). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No 84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, 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.
CONSIDERATION OF Claims and evidence
The issues
The key issue in this case is whether, on accepted evidence, the applicant is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims
The applicant’s claims relate to the dynamics and conflict arising in, and from, the long civil war in Sri Lanka that ended with the government’s crushing of the LTTE, or Tamil Tiger, insurgency in the country’s north and east in May 2009.
Entry interview
The applicant is an ethnic Tamil who claims to have been born and raised Eastern Province. He claims to have lived in the capital in Colombo from [year deleted] until January 2010 when he left Sri Lanka by air, on a Sri Lankan passport, for [Country 1].
In his entry interview, the applicant reportedly claimed that he was taken on [[in] November 2009 by CID officials in a white van to police headquarters and was held “under suspicion.” He claimed he was released 20 days later on [in] December 2009. He claimed that the conditions of his release were simply that if ever he were called to attend the police HQ he should come. He claimed he reported his arrest and detention to the Human Rights Commission two days later.
The applicant claimed that a paramilitary group took him from Colombo in a white van [in] December 2009 to [a] province where they held him in a camp and demanded a ransom. He claimed he was able to escape this group and then leave Sri Lanka.
Refugee Status Assessment claims
The applicant claimed on 29 May 2010 that he never had any problems or contact with the authorities or with paramilitaries or Tamil Tigers until 2009 after the civil war had ended.
The applicant, who claims his given name is “[applicants name deleted],” claimed that the CID arrested him off the street in a white van. He said they were looking for a Tamil insurgent called “[abbreviated name deleted].” He claimed meanwhile that “[abbreviated name deleted]” was the usual abbreviation of his own name. Essentially, he claimed he was arrested in a case of mistaken identity as he had never had any contact with people who had bene active in the Tamil insurgency.
I note that “[abbreviated name deleted]” is a very common generic ending for Tamil family names (apparently meaning “lord”) and that, given this, a Tamil male would more successfully distinguish himself or be distinguished, say, by any other part of his name. Incidentally, “[applicants name deleted]” is given as the applicant’s family name in the driver licence he submitted to the Minister in this matter as evidence of his identity, although the more significant and relevant fact is simply that it is one of the two elements of his name.
The applicant claimed he was detained two days without charge, detained another eight days before being brought before a magistrate under the Prevention of Terrorism Act (PoTA), presumably because the police still believed he was the “[abbreviated name deleted]” for whom they had been searching. However, the applicant plainly stated in a statutory declaration dated 23 May 2010, just on six months after the alleged events, that his lawyer “successfully argued” to the magistrate that the police had arrested entirely the wrong “[abbreviated name deleted]].” Here, though, the evidence appears confused because the applicant claims he was only released “on bail” with the court ordering him to report to the police every Saturday. Also, in this version of events, the applicant was detained only ten days not twenty. He said he was able to obtain the passport quickly because he paid the scheduled fee for an “emergency” passport.
Though claiming to have been “bailed” in a matter invoking the PoTA, the applicant claimed he applied for an received a passport on the day of his release from remand.
The applicant claimed he did not try to report to police on the Saturday immediately following his release as he understood the regime to commence on the Saturday before that. I note that the Saturday following [in] December release on bail [in] December 2009.
The applicant claimed that [in] December 2009 he was abducted by men he discovered to be members of the Karuna paramilitary group and taken to a Karuna camp in [a] Province. He claimed the group knew he was originally from Eastern Province and demanded a ransom to help them fund candidates in then-imminent elections. He claimed he was held for five days and then taken by the group to be transferred to another place. He claimed he took advantage of a toilet stop, during which his captors let themselves be distracted by a cigarette break, to escape and return to Colombo by bus using money lent by a friend.
The applicant claimed he was able to depart Sri Lanka legally by air [in] January 2010 because a local people smuggler organised a [Country 1] visa and “knew the immigration officer at the airport.”
The applicant claimed fear of harm from the Karuna group because he had escaped from them. He also claimed fear of harm from the CID because he had breached bail conditions.
The delegate in this instance did not accept the applicant’s claims were credible.
Independent Merits Review claims
The applicant submitted an application for independent merits review on 6 July 2010. He now claimed that he was tortured during his detention by the CID. The first reviewer asked why he had not mentioned this in previous evidence and he said that he had been afraid that the Australian authorities would have suspected he was a Tamil Tiger. He also gave quite a different reason for not mentioning the torture, being that he had previously been interviewed by female officers and had felt too embarrassed to tell them. By this evidence he seemed to suggest that had his interviewers been male he would not have been afraid to provide information that, elsewhere he said, might cause them to suspect that he had been a Tamil Tiger. There seemed to be a logical problem in the applicant’s evidence here.
The applicant told the first reviewer that he might have been arrested because he used to help [individuals] who had moved from Eastern Province to Colombo. He told the first reviewer he could not recall any of their names.
The first reviewer evidently asked the applicant why he went immediately to a passport office and not to a doctor after having been tortured in detention. In reply, the applicant evidently said he did not think of his health at that time.
Noting the applicant claimed to have obtained a “normal passport,” the first reviewer put to him that this and its subsequent use without difficulty potentially indicated that he was not of interest to Sri Lankan authorities as claimed. In response, the applicant evidently claimed that anyone can get a passport in Sri Lanka. The first reviewer put to the applicant that independent reporting appeared to indicate that a person of particular interest to the authorities would not be able to have difficulty trying to obtain a passport. In reply, the applicant evidently said that because he had been released by a court on bail he was not such a person. Noting this evidence, I recall that the applicant was purportedly placed on weekly police reporting conditions, in a matter relating to the PoTA, all of which suggests that he would have been of immense interest to the authorities. However, there is also evidence to the effect that the applicant’s lawyer had succeeded in convincing the court that the police had no case against him, which makes the purported bail conditions appear factually incongruous. In fact, the first reviewer reminded the applicant that his original claim on this subject was that he was released unconditionally and that the police merely advised him to come to them if further called. The first reviewer asked the applicant why he had not mentioned having been released on bail and subject to a regime of reporting conditions. In reply, the applicant evidently said that he had not known initially than he needed to give that much detail. It appears to me however that this is not a matter of detail having been added but of a new claim having been introduced and having significantly contradicted the initial claim.
The first reviewer asked how the applicant could have been released so quickly if he had been arrested and charged under the PoTA. The applicant then introduced a new claim about his father-in-law having paid a bribe used influence over the magistrate.
The first reviewer put to the applicant that the claim about the [relative]’s intercession with a bribe was new evidence not hitherto provided. The applicant said that he did not find out about it until some time after he first sought protection in Australia. The first reviewer did not accept this explanation as plausible in the claimed circumstances.
The applicant submitted a purported 6 April 2010 letter from the Sri Lankan CID acknowledging his arrest and detention on [in] November 2009 “for two weeks,” not twenty days, or ten, “on suspicion.” The letter states that the applicant was bailed by a magistrate [in] December 2009. Another letter, purportedly from the Sri Lankan Human Rights Commission and dated [in] April 2010, states that the applicant’s wife reported [in] November 2009 that he had been arrested [in] November 2009 “under suspicion.” The author of the letter sates that a Human Rights Commission staff member visited the applicant in detention [in] November 2009. The letter states that the applicant was released on conditional bail [in] December 2009.
The first reviewer expressed concern that the police letter did not simply state that the applicant had been charged, as he claimed he had been. The first reviewer expressed concern that the alleged charge under the PoTA was not mentioned. In response, the applicant said the police would not normally cite a charge. He said that was a job for lawyers. The first reviewer was concerned that this was not a satisfactory explanation as the letter omitted what seemed to be the whole point of the police’s encounter with the applicant.
The first reviewer expressed concern at the credibility of the claims about the Karuna group abduction. The first reviewer, having regard to independent country information, put to the applicant that the Karuna group did not operate in Colombo at the time claimed. The applicant did not appear to address this position directly.
The applicant told the first reviewer that when he escaped he was taken to a toilet in a shop that had a back door. He indicated that none of the doors were guarded while he escaped via the shop’s back door. The first reviewer questioned the plausibility of the situation described.
The applicant also provided evidence to the first reviewer about his abduction and detention by the Karuna group, and also about his escape and return to Colombo, that was inconsistent in detail from earlier evidence. The first reviewer was not satisfied that the applicant’s evidence about the Karuna encounter was truthful.
Second Independent Merits Review claims
The recommendation of the first reviewer was that the applicant did not meet the definition of a refugee and was not a person to whom Australia owed protection. However, the recommendation failed to be acted upon and a fresh review was sought.
The second reviewer’s report appears in the applicant’s immigration file and its main points are described in the delegate’s 27 November 2017 decision that was submitted to the Tribunal.
The second reviewer’s account of the second independent merits review is a version of events provided by the applicant that does not appear to have been challenged at any stage before the second reviewer found the applicant to be a credible witness. Most of the evidence noted by second reviewer is a visceral but unsupported account of torture at the hands of the CID. The applicant repeated the claim about the Human Rights Commission delegate visiting him at the police station, but said the visit took place two days before the torture started. The second reviewer found that the police and Human Rights Commission letters supported the applicant’s overall claims. The second reviewer reported having weighed a range of then-current material, then concluding that the applicant was a credible witness who faced a real chance of being persecuted at that time for reasons of his ethnicity and imputed political opinion. It is hard not infer from the record, however, that the second reviewer merely accepted at face value just one version of the applicant’s purported experiences.
In any event, the second reviewer recommended that the Minister raise the bar preventing a protection visa application.
SHEV Application

In his 16 November 2015 SHEV application, the applicant claimed he was detained [in] November 2009 by police officers who called out the name “[abbreviated name deleted]” when he was walking on the street and arrested him when he turned to see who had called him. He said he later found out from his lawyer, who visited him in detention, that the police had been looking for a person in Colombo called [abbreviated name deleted] after a tip-off from LTTE captives in[District 1], in Northern Province. The lawyer said he had been told that a certain “[abbreviated name deleted]” had been helping the LTTE in Colombo. The applicant claimed in this new submission that he told his lawyer he had been helping some LTTE members in Colombo who had stayed in his house there over the years. He said he had told his lawyer that he had helped those [indivduals] look for jobs in Colombo. He claimed to have told his lawyer that some of those [individuals] must have come to Colombo for LTTE-related activities.
The applicant claimed to have signed his name at the police station, after release by the magistrate, on every Saturday except the one after Christmas when he was in Karuna custody. That would have been [in] December 2009. The applicant claimed that after his escape, the Karuna sent men to his house [in] December 2009 looking for him.
The delegate in the present application made findings about the alleged arrest of the applicant [in] November 2009, finding “no proven evidence to indicate that any of these letters was a bogus document.” The delegate accepted he was arrested by the CID in Colombo [in] November 2009. The delegate found however, that the claim about torture were a late fabrication. The delegate did not accept on the quality of evidence submitted that the applicant was released form police custody on payment of a bribe. The delegate found that the applicant was released because the police found they had no reason to hold him, having originally arrested him on the basis of mistaken identity.
The delegate observed that had the applicant thought he needed a smuggler to help him get out of Sri Lanka he would have engaged that person before applying for his passport rather than after receiving it. The delegate did not accept that the applicant had to rely on any evasive measures to avoid being impeded in his effort to depart Sri Lanka in January 2010.
Taking in all of these considerations, and in spite of accepting that the two supporting letters were genuine, the delegate did not accept that the applicant was a person of concern to the authorities at the time he left Sri Lanka. The delegate did not accept that he had been charged or bailed, or that he had been subjected to reporting conditions, let alone that he had breached any. The delegate gave weight to the applicant having departed Sri Lanka legally.
Regarding the Karuna group claims, the delegate found them all to be fabricated, which means the delegate did not accept that the Karuna group sent men to his house terrorising his wife [in] December 2009.
The applicant made a new claim to the delegate. He claimed that he had been in detention during the time of a notorious February 2014 data breach.
Relevant to this claim, I note the following independent report from the Office of the Australian Information Commissioner[1] provides the following details:
[1] “Department of Immigration and Border Protection: Own motion investigation report”, Office of the Australian Information Commissioner , November 2014, “Management initiated review: privacy breach – data management”, KPMG, 20 May 2014,
On 19 February 2014, the OAIC received information that a database containing the personal information of 'almost 10,000' asylum seekers was available on DIBP’s website (the data breach).
Each month, DIBP publishes a document titled Immigration Detention and Community Statistics Summary on its website ( The document includes statistics about asylum seekers. For accessibility reasons, DIBP publishes the document in Adobe PDF and Microsoft Word versions.
On 10 February 2014, DIBP published the Microsoft Word version of the January 2013 issue of the Immigration Detention and Community Statistics Summary, dated 31 January 2014 (the Detention report).
In preparing the Microsoft Word version of the Detention report for web publication, DIBP embedded the Microsoft Excel spreadsheet that had been used to generate the statistics used in the Detention report. The spreadsheet included the personal information of approximately 9,250 asylum seekers (the listed individuals) and was accessible through the Detention report.
DIBP was notified about the breach by the Guardian Australia at 9.15am on 19 February 2014. DIBP removed the Detention report from its website by 10.00am on that date. The Detention report was available on DIBP’s website for about eight and a half days.
DIBP also identified that the Detention report was also available on The Internet Archive (Archive.org) from 11 February 2014. DIBP wrote to Archive.org on 24 February, seeking removal of the report. Archive.org complied with this request on 27 February. The Detention report was available on Archive.org for about 16 days.
The categories of personal information compromised in the data breach consisted of:
a. full names
b. gender
c. citizenship
d. date of birth
e. period of immigration detention
f. location
g. boat arrival details
h. reasons why the individual was deemed to be unlawful.
The Commissioner was particularly concerned about this information being publically [sic] available due to the vulnerability of the listed individuals…
To assess whether DIBP had reasonable security safeguards in place, in accordance with IPP 4(a), the Commissioner considered information from DIBP and the report on the data breach by KPMG (the KPMG report) about the security safeguards in place prior to the data breach, and what security safeguards would have been reasonable in the circumstances to protect the personal information held. This included considering DIBP’s particular circumstances, such as:
 the sensitivity of the personal information held
 the risk to the individuals concerned if the personal information is not secure
 its information handling practices
 the ease with which a security measure can be implemented.
The Commissioner also had regard to the guidance set out in the OAIC’s Guide to information security.
Where there is a known risk to data security, IPP 4 would generally have required that reasonable steps be taken to mitigate that risk.
The Commissioner found that the data breach was caused by the failure of a number of Departmental policy documents to adequately mitigate against the known risk of embedded data. This included the failure of DIBP to make Departmental staff aware of the risk of embedded data. These failures led to the errors by Departmental staff who created and cleared the Detention report.
Further, this data breach may also have been avoided if DIBP had processes in place to de-identify data where particular areas of the agency do not require access to the full data set…
DIBP advised that, once it became aware of the data breach, it took the following steps to contain the data breach:
 Removed the Detention report from its website. The report was available on DIBP’s website for about eight and a half days.
 Undertook a search engine analysis to confirm that the report was no longer available through public search engines, and checked DIBP’s website to ensure that all source information containing personal information was removed.
 Conducted a detailed examination of information obtained through DIBP’s website about the number of times the Detention report was accessed and the location of the IP addresses that attempted to retrieve the file.[6]
 Obtained assurances from the journalists that had discovered the data breach that the information had not been, and would not be, disseminated further.
 Wrote to Archive.org to seek the removal of the Detention report. The report was available on Archive.org for about 16 days.
In addition to taking steps to contain the data breach, DIBP took the following steps to respond to the data breach:
 Engaged an external consultant (KPMG) to undertake a review of the data breach, including to identify departmental vulnerabilities, policies or management practices that contributed to the data breach, and provide recommendations to prevent recurrence.
 Undertook an internal risk assessment to assess the risk of harm to the listed individuals.
 Commenced a process of notifying the listed individuals.
DIBP advised that it has taken a number of steps to mitigate against future data breaches of this nature, including the following:
 Removed personal information from the underlying datasets prior to the immigration detention and community statistics reports being prepared. It also intended to implement the approach of analysing and reporting on ‘sanitised’ datasets that have personal information automatically removed.
 Reviewed all processes relating to the creation, review and publication of online content. DIBP notes that it intends to regularly update these processes. These materials will be available to all staff on DIBP’s intranet.
 Rolled out face-to-face staff training and an awareness campaign, to highlight the changes to the Privacy Act. Privacy e-learning training material is also being developed. It also intended to develop a new security training program and strengthen its existing mandatory security e-learning package, both focusing on issues such as the handling of private or sensitive data and associated risks.
 Conducted a research and evaluation forum for staff involved in research activities to cover specific privacy issues around client data handling.
The Minister for Immigration and Border Protection has announced that from 1 July 2015, the functions of DIBP and the Australian Customs and Border Protection Service will be integrated into a new department. DIBP advised that this process will include changes to its information management practices, which will be ‘managed as a discrete function separate to the ICT implementation function’. DIBP has further advised that ‘this organisational design feature’ will ‘create an internal checking mechanism to ensure that information and ICT practices occur in a way that is consistent with departmental and ICT policies and will… enhance the department’s performance with respect to meeting its privacy obligations’.
The information lifted did not evidently include any relating to any visas sought by the detainees affected. Nevertheless, the applicant claimed fear of the Sri Lankan authorities inferring on the basis of his migration history that he had sought asylum in Australia. The delegate correctly noted that the applicant had in fact departed Sri Lanka legally, and gave weight to that in assessing this particular claim.
The delegate assessed the applicant’s claims relating to the chance of being persecuted for reasons of his Tamil ethnicity. The delegate cited a number of human rights reports indicating that Tamil ethnicity alone is not a factor attracting persecution in Sri Lanka. The delegate also referred to the applicant having faced no potentially relevant problems until [in] November 2009 after which, the delegate found, he was released without condition.
Independent country information
I have had regard to the following material from DFAT in its Country Information Report: Sri Lanka of 23 December 2021:
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 …
3.13      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 …
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 ...
3.45      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 ...
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).
3.52      DFAT assesses that, while they may be monitored, Tamils with former links to the LTTE, and who are not politically active, are generally able to lead their lives without concern for their security as a result of their past association with the LTTE ...
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 ...
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 …
5.45      DFAT assesses that document fraud is common in Sri Lanka, and there is capacity for fraud in the process for reissuing lost documents.

I have had regard to other information about the Karuna group. In particular, I note a 2019 report published by Amnesty International that includes a short synopsis of Karuna’s political career following the end of the civil war:
In 2009, ‘Colonel Karuna’ or Vinayagamoorthy Muralitharan, a commander in the LTTE, accused of “organizing massacres, conscripting child soldiers and executing local journalists”, joined the Sri Lanka Freedom Party (SLFP), after the war ended, and was made Minister for National Integration. He then went on to form his own political party, known as Tamil United Freedom Party (TUFP) in 2017. Colonel Karuna continues to enjoy impunity for the serious human rights violations carried out by the LTTE during his time as a commander. [2]
[2] “Flickering hope: Truth, justice, reparation and guarantees of non-recurrence in Sri Lanka,” Amnesty
I note that in late 2018, as part of a broader political crisis engulfing Sri Lanka, several sources surfaced indicating a re-emergence of Karuna. As COISS summarised in a Situation Update in December 2018:
A 4 December 2018 Daily News article said that a rehabilitated ex- LTTE fighter had been arrested for the murder of two policemen killed in Batticaloa district on 30 November 2018. The article said that the murders were in retaliation for the stopping of a Martyrs Day event. However, a number of Sri Lankan MPs – including members of the Tamil National Alliance, the largest Tamil party – have raised allegations about the possible involvement of Karuna Amman, a former LTTE leader turned government-aligned paramilitary leader and politician, and the Eelam Peoples Democratic Party in the murder of the two policemen and a number of other recent criminal incidents in the north and east of the country. According to TNA MP M.A Sumanthiran, Karuna Amman had become ‘active’ following the appointment of Rajapaksa as Prime Minister on 26 October 2018.[3]
[3] “Questions raised in Parliament over Karuna Amman’s tweet,” adaderana.lk (Ada Derana), 30 November 2018.
Independent reporting indicates that suspicions of Karuna’s involvement appear to have dissipated more recently given the arrest of suspects connected with the Easter Sunday 2019 terrorist bombings, whom authorities have blamed for the killing of the slain police.[4] More broadly, during the late 2018 crisis which saw former president Mahinda Rajapaksa briefly sworn in as Prime Minister, Karuna is reported to have come out in support of Rajapaksa, stating that he was pleased with the change, and calling on Tamils to support the ‘new government’.[5] Karuna is reported at the time to have been a strong supporter of Rajapaksa, and to have been actively courting Tamil National Alliance MPs to defect and support Rajapaksa’s Prime Ministerial bid.[6]
[4] “Suspect arrested for killing of Vavunathivu Police officers released,” Colombo Page, 12 May 2019.
[5] “Karuna comes out of hiding to hail return of Rajapaksa,” Tamil Guardian, 30 October 2018
[6] “‘MR Promised To Release Tamil Prisoners, President Promised Release Of Lands, Why Is TNA Supporting Ranil?’ Karuna Asks,” Asian Mirror, 15 May 2019.
I note that the TMVP no longer operates as a paramilitary group.[7] Generally, the independent evidence supports the position that the Karuna group has ceased functioning as a paramilitary force since the end of the war in 2009 and evolved into a minority civilian political party, although not without alleged instances of targeted political violence.
[7] “Sri Lanka: Country Report,” Asylum Research Centre (ARC), 07 July 2020.
Currently, Sri Lanka is beset by severe economic collapse that has seem the Rajapaksa brothers, one President and one Prime Minister, run out of office. This situation appears to be affected the whole population generally and not just, say, Tamils in particular. According to a UN report[8] from July 2022,
Sri Lankan President Gotabaya Rajapaksa stepped down on 15 July, after fleeing the country as protestors stormed key government buildings in the capital Colombo. New leadership has been elected by the Parliament today.
Mass protests broke out in March following heavy shortages of food, fuel, medicines, and other essential items compounded by a series of ill-conceived economic reforms like tax cuts and servicing debt payments that ate into the country’s forex reserves. Prolonged disrupted access to food and healthcare has severely affected people with illnesses, pregnant women and lactating mothers who are in serious need of life-assistance.
[8] “Sri Lanka: UN experts sound alarm on economic crisis,” UNHCHR, 20 July 2022,
It is often the case that members of social minorities are more grievously affected by national crises that the general population. However, I note that Tamils are not mentioned in the UN’s singling out of minorities disproportionally affected by the recent crisis.
Evidence at the Tribunal hearing
At the hearing, the applicant was generally calm and coherent. He said his wife and children all live in Colombo, his children studying and his wife keeping house with some support from funds he remits home out of his work in Australia. The applicant said he had been employed as a [occupation deleted] in two [companies].
Early in the hearing, the applicant acknowledged the Karuna group having evolved into a legitimate minor political party. He acknowledged that the Karuna group had been motivated at the time of his alleged kidnap merely by a short-term monetary consideration. I questioned why, in the first place, they would have even bothered to come looking for a [occupation deleted] in Colombo to abduct to Eastern Province for money. He said they would have done that because they knew he had been born in [District deleted] , which is in Eastern province. He then said everything had changed in any event and that he no longer feared the Karuna group. He essentially indicated that he was no longer seeking protection from the Karuna group and that his claims were all about his profile with the CID and discrimination on the basis of his Tamil ethnicity.
I invited the applicant to tell me about his problems with the CID and he said he was arrested and detained for ten days in 2009. I took him to earlier evidence about having been detained for twenty days and he said that “twenty” was the correct number of days.
The applicant described what the CID said to him when they arrested him. He said he was walking towards “the shop” when they stopped him and asked him if he was “[abbreviated name deleted]” and when he said he was they said “You’re connected to the Tigers” or “You’re connected to the LTTE.” He said the CID officers accused him there and then of being connected to the LTTE because his name was “[abbreviated name deleted].” This evidence was substantially different from what the applicant had previously claimed when he told the delegate that he only found out from his visiting lawyer that the CID suspected him of being an LTTE affiliate due to his name being “[abbreviated name deleted].” I consider this discrepancy concerning.
I put to the applicant that it seemed odd that a Tamil name would be reduced to “[abbreviated name deleted]” given its generic presence on so many Tamil names. In reply, he said, “I don’t know.”
The applicant told me he had never had any contact whatsoever with any LTTE affiliates. He said, however, that the CID demanded he confess to being an LTTE operative. I put to him that in searching for someone with no stranger lead than the nickname or name particle “-[abbreviated name deleted],” the CID would likely have done a bit of homework before focusing on him as the suspect for the “[abbreviated name deleted]” they had been seeking. I put to him it seemed hard to believe that their investigation ever would have led them to a then-middle aged [occupation deleted] who had been living in Colombo for nineteen years. In reply, the applicant said, “Yes.”
I asked if, in the course of his detention, the CID made any more detailed accusations about his alleged LTTE links and he said, “No.” He said they just wanted him to confess to being the “[abbreviated name deleted]” they had been seeking. I asked him if he had ever suggested to the CID that there might be thousands of men with “-[abbreviated name deleted]” in their names in Colombo and that they had simply arrested the wrong “[abbreviated name deleted].” He said he could not remember having done so.
I asked the applicant about the letters submitted in support of his claims about having been detained by the CID. He said his lawyer in Sri Lanka had gathered them and sent him scans of them by email. I asked him to tell me how we could be sure these letters were authentic, given the reported ease with which such documents can be fabricated in Sri Lanka. In reply, the applicant said his lawyer in Australia asked his lawyer in Sri Lanka if the documents were genuine and the latter said they were. He argued the good faith of the lawyer in Sri Lanka by holding up a copy of the latter’s Sri Lankan practicing certificate.
Discussing the claim about conditional bail, I put to the applicant that previous decision makers had found it hard to believe that he would have been bailed and able to leave Sri Lanka legally while suspected of terrorism under the PoTA. In reply, he said that of one pays a bribe one can pass by without trouble.
I asked the applicant why the state would have granted bail in 2009 to a person charged under the PoTA due to suspected involvement in the recently-crushed LTTE insurgency, but he did not respond on the point of the question. He said he was granted bail, was then abducted by the Karuna group and then thought there was no point staying in Sri Lanka. I brought the applicant back to the point of the question and he said his [relative] who worked in a government department had a friend in the CID who he bribed. This explanation, however, did not appear to explain how the magistrate was co-opted into granting bail.
I reminded the applicant that the claims about his [relative] interceding with a bribe were not in his original claims and he said he might not have known what to say at the time. I reminded him that he had told an earlier decision-maker that the reason for the omission was that he did not find out about his[relative]’s input until after he came to Australia, and he then reiterated that he did not originally know what to say in the first instance after arriving here, implying that he already knew of his[relative]’s intercession but had not known whether to mention it. In this way, the applicant contradicted his claim about not having known initially that his [relative]had interceded.
In addition to telling me initially that he was only detained for ten days, whereas the purported police letter indicated fourteen and other evidence indicated twenty, the applicant told me he had been required to report to the police station every Sunday. I questioned this, asking him of he had been required to report on Sundays or Saturdays, as elsewhere claimed, and he said he could not remember. He said his memory had become impaired due to his recent cardiac problems. I put to him that quite substantial factual inconsistencies appeared to have arisen in the course of his evidence from the very beginning, such that more recent heart problems could not explain them all, and he said, “Maybe. I can’t remember.”
I asked the applicant to explain in more detail how he was able to pass through Colombo airport and depart the country unhindered having been bailed as a suspected terrorist. I asked specifically for detail about how he was able to pass through the immigration/security hall after completing check-in. In reply, he said he was told by his “people smuggler” to line up at the booth staffed by a man in a blue shirt with a blue pen in his shirt pocket. He said this turned out to be the first booth in the immigration/security hall. I asked the applicant if the immigration/security officials there were not all uniformed, and hence perhaps all wearing blue shirts. He did not confirm or deny that they were uniformed; he just said that one of them had a blue pen in his pocket and the others did not. I expressed a concern that this seemed potentially far-fetched. I asked because the plot described pre-supposed, or took potentially expensive pains to ensure, that all other officials in the immigration/security hall would not be wearing blue shirts on the day and would not just happen to have blue pens in their pockets. The applicant responded to the concern, saying, “I don’t know.”
Noting that he had told me in the hearing that he never had any contact with people involved in the Tamil insurgency, I referred the applicant evidence he had given an earlier decision-maker about having helped some [individuals] who had been involved with the LTTE. He had said in his statement of claims to the delegate in the present SHEV application that, while in police custody, he told his lawyer he had been helping some LTTE members in Colombo who had stayed in his house, and claimed to have told his lawyer that some of those [individuals] must have come to Colombo for LTTE-related activities. I asked the applicant if he remembered having claimed that he had [helped] LTTE members during their stays in Colombo and he said he did not. When I repeated more or less what he had previously claimed, he then said he did remember. I then asked him to provide more detail about this and he said he could not remember all the people he had ever spoken to in his home. I asked him what help he had provided and he described temporary accommodation and assistance in job-seeking. Basically he described [the] people who had moved from Eastern Province to find work and lodgings in the capital. So far, they sounded to me like internal economic migrants. I asked the applicant to tell me specifically what factor or factors caused him to think that these people were members of the LTTE and he said their names were “announced” in a newspaper. I asked him to give me more detail as to what he meant. He then said he had seen many names in newspapers but could not, or had not been able to, identify them. I asked him if he could explain how he came to suspect that the names he saw in newspapers might be names of [the individuals] he had assisted in Colombo, and he said that the newspapers gave names and provincial origins of LTTE suspects. Here, I found the applicant’s evidence confused. I asked myself if the confusion was due to age, health and the vagaries of memory, but on the evidence before me, and recalling that he told me plainly that he had never had any contact with LTTE members, it appeared the applicant might improvising about a conversation with a lawyer than never happened.
The applicant described the current circumstances of his wife and children as fairly unremarkable, but he claimed that the CID visited his house two or three times and interrogated his wife about him. He said that these visits took place perhaps over a year or eighteen months after he left Sri Lanka. He said his wife felt so pressured that she moved the family to rent elsewhere in Colombo whereupon there were no more visits from the CID. I put to the applicant that this seemed to be significant information that he had not provided in any of his early testimony or submissions. In reply, he said, “I can’t remember.” I put to him that he did not appear to have claimed previously that the CID ever visited his home (whereas, I note, he had mentioned the Karuna group visiting his wife at one stage). In reply, the applicant said he had forgotten everything after twelve years; this did not explain why he had not mentioned the CID visits much earlier in the twelve years to which he was referring.
The applicant emphasised at the hearing that he will be persecuted in the event of return to Sri Lanka for being a Tamil and for having been a person under suspicion of involvement with the LTTE who had broken bail conditions. The evidence of these bail conditions is directly contradicted, meanwhile, by his claims about his lawyer having succeeded in satisfying the magistrate that the wrong man had been arrested and charged and abut the police letting him go on nothing firmer than advice to come to them in future if asked to do so.
We spent some time during the hearing discussing the treatment of returnees to Sri Lanka. I put to the applicant that our starting point should take in the fact that he did not depart Sri Lanka illegally as he had used a passport to depart through a legal exit point. The applicant then raised the alleged breaching of bail, the alleged charge, or at least arrest, under the PoTA and his Tamil ethnicity. I put to him that for the purposes of this specific part of the hearing, I wanted us to focus on how his mode of departure from Sri Lanka would be regarded on return. The applicant said that even though he left Sri Lanka legally, he left only with a visa for [Country 1]. He implied that inferences would be drawn from his having returned not from [Country 1] but form Australia. I put to him, on independent evidence, that Sri Lankan authorities appeared to be more concerned with mode of departure (and particularly organising and profiting from unauthorised boat departure) than with what visas returnees held in foreign countries. Here, again, the applicant said he would be punished for having breached his bail and for having left Sri Lanka at all whilst on reporting conditions. He also said he has a [health condition deleted].
The applicant suggested that his past record with the CID and the allegations about the LTTE may be the reason why Australian authorities have not yet issued a security clearance after more than a decade. However, this struck me merely as bald speculation and I give no weight to it.
The applicant talked about his recent health history and time spent in ICU wards. I have duly taken his health not consideration.
I invited the adviser to make any closing oral submissions she might like to have me consider. The adviser then asked for time to make post-hearing submissions. I asked her to describe what issues she thought she might need to raise in writing rather than orally and she said she wanted to talk about the implications of failing to meet bail conditions. I put to her that I generally accepted that a person who had jumped bail and fled overseas might be of serious interest to Sri Lankan authorities in an airport interview with a returnee and did not require further submissions on that general issue. The adviser then said that any incarceration such as remand pending release on bail for having breached Sri Lankan emigration law but be persecutory in her client’s case because of his anxiety and potentially serious [health condition]. Referring to Negombo jail, as mentioned in the DFAT material, the adviser said the conditions there are reportedly dire and degrading, potentially giving rise to significant, if not serious, harm in her client’s case. I undertook to take that into consideration. There appeared to be no more issues the adviser wished to raise. I put to her that in the circumstances I was not inclining to grant time for further submissions and she did not further request any extension of time for such a purpose. I asked the applicant if he had any further claims and he said he did not.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[9] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[10]
[9] MIMA v Rajalingam (1999) 93 FCR 220 .
[10] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[11] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[12]
[11] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[12] Sun v MIBP [2016] FCAFC 52 at [69].
In this matter, I accept that the applicant is a Tamil male. I accept that Tamils, Tamil males, adult Tamil males and adult Tamil males who were “able-bodied” during the time of the civil war are, for the purposes of s.5J(1)(a), all particular social groups. I understand that the applicant claims these characteristics are cumulative factors in his claimed fear of being persecuted. Having had regard to his evidence, in particular his claims about how he was treated up until [in] November 2009 when he was arrested, he claims, in a case of mistaken identity, and having regard to the DFAT reporting cited above, I am not satisfied that the applicant faces a real chance of being persecuted in the reasonably foreseeable future, either separately or cumulatively for reasons of his Tamil ethnicity, whether as a Tamil, a Tamil male, an adult Tamil male, or an adult Tamil male who was or might have been perceived as “able-bodied” during the time of the civil war, or for reasons of membership of any similar or related social group.
I accept that the applicant was possibly one of several detainees in Australia at the time whose information was published in the February 2014 data breach. However, I am not satisfied on the evidence before me that the applicant faces a real chance of being persecuted in the reasonably foreseeable future, either separately or cumulatively for reasons of his identity and some other details having been published in the data breach. In any event, I consider it likely that Sri Lankan officials would assume that he would have unsuccessfully sought asylum in Australia in the event of his return there, irrespective of the data breach, because he has been in Australia for so long and, say, if asked to present evidence of substantive visa covering his time here, will not be able to do so. However, I give weight to the independent country information stating that failed asylum seekers, without more, are not of significant interest to Sri Lankan authorities. Specifically, I give weight to DFAT reporting that it is not aware of returnees in 2021 being detained for matters other than illegal departure, and to the fact that the applicant evidently departed legally from Sri Lanka, as even he himself has sometimes emphasised.
I do not accept on the inconsistent and sometimes fanciful evidence before me that the applicant was arrested [in] November [by] CID officers who confused him for some other “[abbreviated name deleted]” with LTTE connections or that he was charged under the PoTA and was brought before a bail court and bailed on reporting conditions that he then breached. Inconsistencies and other problematic evidence include the applicant’s lawyer having convinced the authorities including the court of a false arrest was a case of mistaken identity, with the applicant still only being released on strict bail conditions; inconsistent evidence contradicting the original claim about the applicant being let go by the police and merely advised to come to them if they needed him; inconsistency about the intercession of the [relative]; inconsistency between oral and documentary evidence about the duration of the applicant’s detention; the fact that the applicant, though charged under the PoTA, would have been bailed in the first place and then been able to get a passport simply by paying the scheduled express fee; inconsistency about whether the applicant had ever affiliated with LTTE members; and the fanciful nature of the evidence about the applicant’s passage through immigration/security ay Colombo airport through payment of a bribe. There are also other minor inconsistencies, such as the confusion over Saturdays and Sundays, and whether the applicant’s detention was over ten or twenty days. These discrepancies are inconsequential on their own but form a pattern with the poor quality of evidence the applicant has provided, from the start, to successive decision-makers over a twelve-year period; having reviewed the evidence in this matter as a whole, I give some small negative weight cumulatively to these minor inconsistencies.
The applicant’s position is that the two letters he has submitted corroborate his claims about the CID arrest and PoTA charges. However, the purported police letter gives information about the duration of the applicant’s detention that is inconsistent with the applicant’s own, and it makes no mention of any charges. I am more concerned, in this case, with the first issue rather than the second, as there is at least a discreet reference to the applicant having been “under suspicion.” The police letter is inconsistent with the applicant’s own evidence, and is accordingly unreliable on a significant point, central to the purpose of its having been sought and provided in the first place. Rather than helping to support the applicant’s claims, the purported police letter further confuses them, once again showing that deficiencies in his evidence are not limited to the passing of twelve years or the health issues he has more recently suffered. Giving some weight to concerns about this discrepancy, noting that the applicant’s own evidence is unsatisfactory in a range of ways, and also having regard to information about how readily falsified documents can be obtained for money in Sri Lanka, I give no weight to their of these letters.
On the evidence before me, I do not accept that the applicant ever helped any LTTE members, was ever called “[abbreviated name deleted],” or arrested by the CID (let alone under suspicion of being an LTTE operative called “[abbreviated name deleted]”), or detained or tortured, or charged under the PoTA, or brought before a magistrate who granted bail on reporting conditions that he breached, or released thanks to a bribe, or “smuggled” out of Sri Lanka through a ruse devised to help him clear immigration/security. It follows that I do not accept that the CID has ever visited his family to ask after him.
Given these findings, it is hard to believe the applicant’s claims about having been kidnapped in Colombo by paramilitaries from the Karuna group who demanded money from him, unintentionally let him escape when he went to the toilet and then came back to his house in Colombo looking for him again. This thread of the applicant’s claims contains many elements that are very similar to the other thread about the CID. I did not examine the Karuna claims closely because the applicant told me that times have changed and he no longer fears the Karuna group. Hence I am not satisfied on the evidence before me that the applicant has anything to fear from any paramilitaries or other non-state agents such as the Karuna group.
I find that, when the applicant returns to Colombo, he will be questioned on arrival by airport staff. He may be asked a few questions if the Sri Lankan Consulate here issues him with a single-use re-entry document instead of a passport, but no evidence before me suggests that he will be refused a new passport simply because of the length of time away. No evidence tells me that the applicant will be unable to direct Sri Lankan authorities to records of his laving departed Sri Lanka legally in 2010. I find that the process of answering questions at Colombo airport will not be so onerous as to be health-threatening, or life-threatening, because based on my findings I conclude that the applicant knows there is no history of suspicion of LTTE affiliation, no “[abbreviated name deleted],” no arrest, no torture, no action taken under the PoTA, no bail conditions breached and no illegal departure. These issues will simply not come up. Meanwhile, there is no evidence before me of the applicant having any other criminal record. I find the applicant will not be referred to the CID for any reason, let alone illegal departure. Hence, he will not be remanded even for a period of hours to face a court in the matter of illegal departure. He will not be refused bail in the matter of illegal departure because of having breached bail in the past because neither of these things happened.
I am not satisfied on the evidence before me that the applicant will be persecuted due to his profile as an aged person or an infirm one, or that his Tamil ethnicity will lead to discrimination preventing him from obtaining healthcare and social support.
Having considered all of the evidence before me in its entirety, I am not satisfied that the applicant faces a real chance of being persecuted in Sri Lanka in the reasonably foreseeable future for any reasons cited in s.5J(1)(a). His clamed fear of being persecuted is not well founded. He is not a refugee.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
“Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
“Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

100. Accepting that the applicant is a national of Sri Lanka, I find that Sri Lanka is the receiving country in this matter.
101. The applicant’s claims to complementary protection are essentially the same as his refugee claims. Those claims have failed for want of credibility and because they do not meet the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, The applicant’s protection claims can no more succeed as complementary protection claims than they have as refugee claims.
102. On consideration of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm as exhaustively defined under s.5(1) of the Act.
103. Accordingly, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
104. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).
DECISION
105. The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

International, 25 January 2019

[2022] AATA 5147

16 November 2022

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