1731711 (Refugee)

1731711 (Refugee) [2022] AATA 3559 (22 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Joshua Le Vay
CASE NUMBER:  1731711
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Rachel Da Costa
DATE:22 August 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 August 2022 at 10:02am
CATCHWORDS
REFUGEE – Protection visa – Sri Lanka – race – Tamil – religion – Hindu – fears harm from the Sri Lankan army and associated groups – imputed political opinion – applicant does not have real or perceived links to the LTTE – situation in Sri Lanka has changed significantly for the better – a failed asylum-seeker – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 5 December 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 25 April 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background and migration history
In his Safe Haven Enterprise visa application form, the applicant provides the following information. He was born in Jaffna, Northern Province, Sri Lanka on [date]. He is of Tamil ethnicity and Hindu religion. He speaks, reads and writes Tamil and English and speaks Hindi. He is in contact with relatives outside Australia. He departed Sri Lanka legally from Colombo airport on [date] October 2010[1] using his Sri Lankan passport issued [in] 2005, which has now expired.
[1] According to the applicant’s evidence this is an error and should read 2009 and not 2010.
From [birth] to September 1990, the applicant lived in Jaffna, Northern Province, Sri Lanka. He attended primary school in Jaffna. From September 1990 to June 2004, the applicant lived at [a] Refugee Camp, Sivaganga District, India. He completed primary and secondary school in Sivangaga. From [year range], he attended [school] and obtained a [qualification]. From December 2001 to January 2002, he worked [for a] firm in Devakottai, India. From February 2002 to May 2004, he worked as a Manager at [a workplace], India.
In 2004, the applicant returned to Sri Lanka. From May 2004 to April 2005, he was unemployed and was supported by his family. From April 2005 to March 2006, he worked in [Shop 1], [Mannar], Northern Province, Sri Lanka. From March 2006 to May 2006, he was unemployed.
From 21 May 2006 to 12 June 2009, he lived and worked in [Country 2]. He worked as [an occupation] in [a workplace], [Country 2]. From June 2009 to October 2009, the applicant lived in [Mannar] District, Northern Province, Sri Lanka. During this time he was unemployed.
From 3 October 2009 to 7 October 2009, the applicant was in [Country 3]. From 7 October 2009 to 10 February 2011, the applicant lived in [Country 4]. In [Country 4], he worked as [an occupation]. From 10 February 2011 to 19 September 2011 the applicant lived in [Country 5].
He arrived in Australia on [date] September 2011 as an unauthorised maritime arrival. From [September] 2011 to [April] 2012, he was detained on Christmas Island and [named] Immigration Detention Centre.
The applicant attached a number of documents to his Safe Haven Enterprise visa (SHEV) form relating to his education, refugee status in India, contact with the UNHCR in [Country 4] and [Country 5], birth certificates for himself and other family members and other documents relating to his identity and nationality.
The applicant’s migration history since arriving in Australia, as extracted from the delegate’s decision record and other documents before the Tribunal, is as follows:
·     [Date] September 2011 – applicant arrived in Australia as an unauthorised maritime arrival
·     21 October 2011 – applicant attended entry interview
·     26 January 2012 – applicant lodged application for a Protection Obligations Evaluation (POE)
·     30 January 2012 – applicant attended POE interview
·     21 March 2012 – POE outcome (negative)
·     26 April 2012 – UJ-449 and WE-050 visas granted – applicant released from detention
·     2 October 2012 – Independent Protection Assessment (IPA) (positive)
·     25 April 2016 – application for a SHEV lodged
·     22 November 2017 – applicant attended Departmental interview with delegate
·     5 December 2017 – delegate’s decision not to grant the applicant a SHEV
·     15 December 2017 – application for review lodged with the Tribunal
Evidence before the Department
Statutory declaration attached to SHEV application form
In a statutory declaration declared on 18 February 2016 and attached to his SHEV application form, the applicant makes the following claims:
·     His race is Tamil. His religion is Hindu. He has never been married and has no children.
·     His father is deceased and his mother and sister are in Australia waiting to have their refugee status assessed. He has one sister remaining in Sri Lanka.
·     He resided his entire life in Sri Lanka until he travelled to Australia. He is a citizen of Sri Lanka.
·     He was forced to flee Sri Lanka to avoid serious harm. Due to his race, gender, age and area of origin he faced many difficulties in Sri Lanka.
·     In approximately March 2006, he was working at [Shop 1] in Mannar when the Sri Lankan Navy attended the shop. They searched the shop while the applicant and the shop owner were present. The Navy personnel found a bill of sale with the applicant’s signature on it. He was questioned about who purchased the material [and] he said he was not sure. The Navy personnel threatened him and said he should be aware of the purchase given his name was on the bill.
·     The applicant was taken away to the Navy camp for further interrogation. He was shown the material [that] was mentioned on the bill and was told it had been confiscated from a smuggler who assisted the LTTE.[2] He was further questioned about his knowledge of LTTE operations in the area and whether he was connected to the LTTE.
[2] The LTTE is the Liberation Tigers of Tamil Eelam, a militant group which supported Tamil statehood: see DFAT Country Information Report Sri Lanka 23 December 2021, 2.2.
·     While interrogated, he was harmed by different members of the Sri Lankan Navy. He was hit in the jaw with the butt of a rifle which injured him and made him bleed. He was also beaten.
·     He was detained with other men. The next day, the owner of the shop came to the camp and arranged his release. Both the shop owner and the applicant were required to sign an undertaking.
·     The following day, the applicant returned to work at the shop. The police came to the shop and interrogated him further. The police kept the shop under surveillance and harassed and interrogated customers. The police would steal items from the shop. Due to the harassment, the applicant left his job at the shop. The shop owner eventually closed the shop.
·     Because of the constant interrogation, the applicant felt it was not safe for him to remain in Sri Lanka. He arranged to obtain a visa to travel to [Country 2]. In order to obtain the visa, he had to travel to Colombo. When he returned from Colombo he was questioned by the authorities. This made him afraid. His neighbours were also questioned.
·     He remained in [Country 2] for around three years. In 2009, he returned to Sri Lanka. Upon return, he intended to start a business, but he was unable to, given the authorities approached him and took him in for questioning.
·     He was told he was being taken to the police station but he was taken to a [house]. He was taken there by two Criminal Investigation Department (CID) officers and then more men arrived. They had weapons. He was told that the investigation against him was ongoing and he was harassed for money. He said he was unable to provide the men with money. The men requested Rp [amount]. The applicant initially refused and then decided they would continue to harm him until he paid them, so he agreed to pay the money.
·     He told his family what had happened. His brother in law gave him the details of a lawyer. The lawyer told the applicant that if he made a complaint against the men he would face further harm. She advised him to keep a low profile until he could depart Sri Lanka.
·     In 2012, his mother received two summonses requesting the applicant to attend the police station in relation to the investigation against him in 2006. His mother was harassed by the authorities at this time. His mother and sister fled to Australia because his mother could not stand the harassment.
·     He believes that if he returns to Sri Lanka he would be seriously harmed and/or killed. He fears harm from the Sri Lankan army and associated groups.
·     The applicant claims he was previously subjected to constant harassment, discrimination and harm in Sri Lanka. Given his age, race and the fact that he escaped the country near the end of the war, he would be treated with a high level of suspicion and be subjected to serious harm upon return. He would be at risk of harm as he undertook to pay money and rather than adhering to this promise, he fled the country.
·     Further, he believes he would be at risk of harm given the large amount of time he has spent abroad and given he has obtained protection in Australia. This would result in him being treated with a high level of suspicion upon return.
·     The situation for Tamils in the north of Sri Lanka remains very difficult. There is still a strong military presence and Tamils cannot live freely. He would be continuously monitored and would not be able to live freely.
·     The applicant will not be protected by the authorities in his country because he is Tamil and they are not supportive of his community.
·     Given his race, the fact he has been abroad for many years and his previous dealings with the authorities, he would be imprisoned upon return to Sri Lanka. While imprisoned, the Sri Lankan authorities may subject him to torture, cruel, inhuman and degrading treatment and punishment in order to obtain information from him.
·     He cannot relocate within Sri Lanka because he would be at risk of harm from the authorities no matter where he resides.
Irregular Maritime Arrival Entry Interview
According to the typed record of the Irregular Maritime Arrival Entry Interview conducted with the applicant on 21 October 2011, the applicant’s claims about what happened to him in Sri Lanka and why he left are basically consistent with the claims in his statutory declaration declared on 18 February 2016 attached to his SHEV application form, and claims made by him in the further interviews described below. In the Irregular Maritime Arrival Entry Interview, the applicant stated that he feared returning to Sri Lanka because of the CID/police officials who demanded Rp [amount] from him, which he did not pay. He stated that if he had paid them, other groups would have come and asked for money, and if he didn’t pay them but had stayed in Sri Lanka, these people would have harmed him.
Protection Obligations Evaluation (POE)
In a statutory declaration declared 30 January 2012 in support of his Protection Obligations Determination, the applicant made claims in very similar terms to those set out above.
The applicant’s lawyers submitted country information in support of the applicant’s POE. The submissions contain excerpts from various articles dated 2009 and 2010 which the lawyers state support the applicant’s claims and exemplify the situation in Sri Lanka where murders and terror of innocent civilians is commonplace. The articles relate to acts of violence against Tamil people during and soon after the end of the civil war and discuss the ongoing uncertainty and insecurity for Tamils in Sri Lanka at that time.
In his POE interview on 30 January 2012, the applicant reiterated his claims and provided further detail in response to questions.
He also submitted a document from a lawyer dated 25 October 2011 which states that the applicant came to the lawyer on 30 September 2009 for advice. The lawyer’s letter states that the applicant told the lawyer that two CID persons abducted him to a place where there were four people with arms threatening him to get some money as ransom or otherwise they would give evidence that he is an LTTE person and he mentioned he had signed some written documents at the Navy camp. The lawyer states that the applicant asked whether he could complain about this matter to the police. The lawyer goes on to state that they know that on a previous occasion [in] March 2006, while the applicant was working in [Shop 1] in Mannar, the applicant was arrested by the Sri Lankan Navy on suspicion, tortured and released after getting his signature on documents on the condition that he should appear before them whenever he is required to do so. The lawyer states that the prevailing conditions are not suitable for Tamil youths to go to the police station or army camps or Navy camps for investigation purposes as they will be either subjected to torture or wilful disappearance.
The POE officer found that based on the applicant’s written and verbal testimonies, he was not satisfied that the applicant was interrogated and beaten on suspicion of selling items for LTTE use. Consequently, he was not satisfied that the police abducted the applicant and told him they were aware of him being detained by the Sri Lankan Navy. The officer accepted that the applicant was questioned by the Navy in the course of routine inquiries. The officer considered country information, including that submitted by the applicant’s lawyers, and stated that he was not satisfied that Tamil males are being systematically targeted for persecutory harm. He also considered that the security situation in the region had improved significantly. Based on the applicant’s written and oral submissions, the officer was not satisfied that the applicant would suffer harm at the hands of paramilitary groups/police for a Convention reason. He was also not satisfied that the applicant’s fear was well-founded for the purposes of the Refugees Convention. The officer found that the applicant is not a person to whom Australia owes protection obligations. The applicant’s case was automatically referred for IPA.
Independent Protection Assessment (IPA)
On 2 October 2012, the Independent Protection Assessor made their decision and recommended that the applicant be recognised as a person to whom Australia has protection obligations.
The applicant’s claims and evidence, including the content of his interview with the IPA assessor, are set out in detail in the IPA decision. His claims remain broadly consistent with his claims in the POE.
The Tribunal notes the following additional relevant information provided by the applicant at the IPA interview, as set out in the assessor’s decision:
· The applicant returned to Mannar, Sri Lanka from [Country 2] for one month in February 2008 for his father’s funeral.
· The applicant provided two new documents in Sinhalese (untranslated) described as “summonses” and dated [date] March 2012 and [date] March 2012, both of which he claimed were given to his mother. They are described in paragraphs 39 and 40 of the IPA assessor’s decision. Translations of these documents provided before the IPA assessor made her decision, indicate that the documents require the applicant to report to [the] police station on [date] March 2012 and [date] March 2012 for inquiry into a complaint made [in] March 2006.[3]
[3] IPA decision paragraph 75. The Tribunal notes that [date] March 2006 is the date the applicant claims he was arrested by the Sri Lankan Navy when he worked in [Shop 1].
The IPA assessor accepted the applicant’s claims that in 2006 he was detained, interrogated and beaten by the Sri Lankan Navy in relation to an investigation into goods purchased from the store where he worked, for use by the LTTE. The IPA assessor also accepted that the authorities visited the applicant’s house to question him further and that he left Sri Lanka at this time due to anxiety about further harassment. The IPA assessor accepted that the applicant was the victim of an extortion attempt involving the police and paramilitary personnel. She accepted that he fled Sri Lanka on account of his genuine subjective fear of persecution on the basis of imputed political opinion and his ethnicity and because he feared the Sri Lankan Army/paramilitary organisations would harm him because he failed to pay the police the Rp [amount] he had agreed to pay. She also accepted that summonses had been given to the applicant’s mother requiring the applicant to present himself for investigation and that he feared persecution because of imputed political opinion by reason of seeking asylum in Australia.
The IPA assessor considered whether the applicant’s fears of persecution were well-founded. She considered that the applicant’s risk is elevated by the fact that he was, and continues to be, the subject of investigation. She accepted that the authorities have shown ongoing interest in his whereabouts since he left Sri Lanka and could not rule out the possibility that he would be detained and questioned on return to Sri Lanka on the basis of an imputed link to the LTTE and that he may suffer serious harm as a result. She found that based on the applicant’s profile as a possible supporter of the LTTE, together with his status as a returned asylum seeker and his Tamil ethnicity, she accepted he faced a real chance of persecution from the Sri Lankan police, the military arms of the Sri Lankan government and paramilitary organisations now and in the foreseeable future because of a Convention reason. Therefore, the assessor found the applicant is a person in respect of whom Australia has protection obligations and that he met the criterion for a protection visa.
The interview with the Department
On 22 November 2017, the applicant attended an interview with a delegate of the Minister where he answered questions and provided evidence about his claims and the situation for him if he returns to Sri Lanka.
As reflected in the delegate’s decision, the delegate noted in the interview that the applicant had been consistent in his claims about what happened to him and overall, he was inclined to accept the applicant’s claims as credible. However, his main concern was looking to the future and country information indicated that the situation in Sri Lanka has changed significantly for the better since the applicant arrived in Australia, so he might find the applicant would not be persecuted if he returned to Sri Lanka based on his profile.
Post-interview submissions
On 29 November 2017, the applicant’s lawyer provided submissions to the Department in support of the applicant’s case. The purpose of the submissions was stated to be to summarise the applicant’s claims and to address concerns raised by the delegate in the interview.
The submissions reiterate that the applicant fears harm on account of his Tamil race, his imputed political opinion and his membership of a particular social group which is a returnee from the West/failed asylum seeker. The submissions state that the applicant’s circumstances should be considered cumulatively, and it is likely that if he returned to Sri Lanka he would be of high interest to the authorities because of his profile. The submissions set out extensive country information from sources including Human Rights Watch, the Officer of the High Commissioner for Refugees, Amnesty International and the International Crisis Group relating to the punishment of Tamils by the Sri Lankan authorities when they are perceived to be LTTE affiliates and more generally. They submit that in light of the country information and the applicant’s personal circumstances, he is at risk of being subjected to serious harm upon return to Sri Lanka.
The delegate’s decision

On 5 December 2017, a delegate of the Minister refused the applicant’s application for a SHEV. The delegate was prepared to accept the applicant’s two main claims about the incidents in 2006 and 2009 and found them to be credible. The delegate noted that they had considered the following:
·     the applicant stated that he did not encounter any problem at Colombo airport when he left on [date] October 2009 because he left the country as soon as he was targeted;
·     the applicant worked in [Country 2] from 2006 to 2009 and returned to Sri Lanka for his father’s funeral in 2008 and on his returns/departures did not encounter any problem at the airport;
·     he left the country in 2009 on his own passport from the Colombo airport without encountering any problem.
The delegate concluded that the applicant did not have any adverse profile that caused adverse attention from the Sri Lankan authorities. The delegate added that the fact the applicant chose to depart the country legally is an indication he was confident that he would not encounter any issue leaving the country legally by air. The delegate made the following further findings about the applicant:
·     he is a Tamil;
·     he is a Hindu;
·     he was questioned in 2006 by the Navy and the CID regarding the sale of goods to the LTTE by the [store] where he was employed;
·     he was targeted for extortion by two CID officers in 2009;
·     he was not of adverse interest to the Sri Lankan authorities when he left the country in 2009;
·     he left Sri Lanka legally using his own passport on [date] October 2009.
The delegate noted that the applicant had stated that his mother and sister had also left Sri Lanka (and come to Australia) since he left, due to harassment by the authorities.
The delegate assessed the applicant’s current profile and the latest country information in considering the applicant’s claim that he will be targeted by the authorities if he returns to Sri Lanka. The delegate did not accept the applicant’s claim that his personal circumstances and the situation in Sri Lanka had not changed since he was found to be owed protection obligations in 2012. The delegate did not accept that the 2006 incident has persisted to the point that if the applicant returns to Sri Lanka he will be targeted by the authorities and harmed. Based on country information, the delegate found it was unlikely the applicant will be targeted for extortion again if he returns to Sri Lanka.
In relation to the applicant’s claims that he would be targeted for being a Tamil who lived in the north or an area previously controlled by the LTTE, the delegate found that the applicant was not of interest to the Sri Lankan authorities for any reason when he left the country. Given the improved situation in the north of the country and noting the applicant does not have real or perceived links to the LTTE, the delegate found the chance of the applicant facing persecution for this reason is remote even if there is an ongoing military presence in the area. The delegate also found that the level of discrimination described as possible for Tamils in this area, if it were to occur, would not amount to serious harm.
In relation to the applicant’s claim that his Tamil ethnicity would lead to an imputed association with the LTTE, the delegate found the chance of this to be remote, and also noted the applicant was not politically active in Sri Lanka and does not have a political profile.
In relation to the applicant’s claim that he will be harmed because in 2006 he was questioned about the sale of goods to the LTTE from the [store] where he worked, the delegate found that based on country information, the applicant would not be of interest to Sri Lankan authorities. The delegate found that the applicant does not have a profile of interest to the Sri Lankan authorities and the chance that he would face serious harm because of any real or perceived links to the LTTE is remote.
In relation to the applicant’s claim that he will be harmed as a failed Tamil asylum seeker who departed the country legally, the delegate considered country information and found that it is likely the applicant would have his identity checked and be questioned at the airport on arrival. However, noting the applicant does not have a criminal background and was not of interest to the authorities when he left the country, the delegate found the applicant would not be exposed to harassment or harm that would amount to serious harm on his return for this reason.
The delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
The Tribunal notes that the summonses, referred to in paragraph 20 above, were mentioned by the applicant in his interview but are not referred to in the delegate’s decision. As discussed below, these documents were provided by the applicant to the Tribunal prior to his hearing.
Evidence before the Tribunal
The review application
On 15 December 2017, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant provided a copy of the delegate’s decision with his application for review.
Documents provided prior to the hearing
On 14 February 2022, the applicant’s representative lodged a request for access to documents under the Freedom of Information Act1982 (Cth) (FOI request), seeking access to all documents on the Departmental and AAT files. On 16 February 2022, the FOI request was partially transferred to the Department in respect of the documents held on the Department’s file.
On 9 March 2022, the Tribunal provided electronic copies of relevant documents on the Tribunal file to the applicant’s representative, in accordance with their request.
On 19 May 2022, the Tribunal contacted the applicant’s representative and asked whether they could provide copies of the ‘summonses’ referred to in paragraph 20 above, as these documents did not appear to be on the Department or Tribunal files despite references to them having been provided. The applicant’s representative provided copies of these documents to the Tribunal on 20 May 2022.
On 19 May 2022, the applicant’s representative wrote to the Tribunal, noting that Departmental documents they had sought pursuant to the FOI request had not yet been provided. The representative noted that the documents sought were documents submitted by the applicant to the Department, and requested that the Tribunal provide copies of these documents. The applicant’s representative provided a completed Consent to release personal information form. On 20 May 2022, the Tribunal explained to the applicant’s representative that it was not possible for it to release the Departmental documents pursuant to s 362A of the Act as this is a protection case, as opposed to a migration case. However, after further discussions with the applicant’s representative, the Tribunal provided the applicant’s representative with copies of the following key documents from the Departmental file in order to facilitate preparation for the upcoming hearing:
·     Application for a Safe Haven Enterprise visa Form 790B and 790C;
·     POE determination and referral;
·     IPA statement of reasons.
The applicant’s representative confirmed that having been provided with copies of these documents, the applicant was content to go ahead with the hearing.
On 23 May 2022, the applicant’s representative provided the following documents to the Tribunal in advance of the hearing:
·     SHEV grant notice of the applicant’s sister dated 2 January 2018;
·     SHEV statement and identity documents of the applicant’s sister;
·     SHEV grant notice of the applicant’s mother dated 2 January 2018;
·     SHEV statement and identity documents of the applicant’s mother;
·     Letter of support from [Organisation 1] dated 11 May 2022;
·     Two photographs of the applicant with others at [Organisation 1] dated 30 January 2020 and 3 February 2020;
·     Two undated photographs of the applicant at what appears to be a march in support of refugees in Sydney; in one photograph the applicant is holding a sign, the visible part of which says “[deleted]”;
·     Undated photograph of the applicant standing in front of a set of photographs of people who appear to be in uniform.
In relation to the SHEV documents, the applicant’s representative explained in his email that they had the consent of the applicant’s sister and mother to share the information contained in their SHEV applications with the Tribunal, however the applicant’s sister and mother had not consented to sharing this information, which is sensitive, with the applicant.
The Tribunal sought clarification from the applicant’s representative as to the purpose of providing the SHEV documents relating to the applicant’s mother and sister to the Tribunal. The representative explained that aspects of their statements support the applicant’s claims about what happened in Sri Lanka. The applicant has not claimed or suggested that he should be regarded as a member of the same family unit as his mother or sister, both of whom currently hold a SHEV.
The hearings
The applicant appeared before the Tribunal on 24 May 2022 and 3 August 2022 to give evidence and present arguments. The hearing on 3 August 2022 was held to discuss claims and issues arising out of the applicant’s post-hearing submissions. The Tribunal hearings were conducted with the assistance of an interpreter in the Tamil and English languages. The Tribunal is satisfied that the applicant was able to participate in the hearing in a meaningful way.
The applicant was represented in relation to the review and his representative attended the hearings.
Post-hearing submissions dated 1 June 2022
On 1 June 2022, the applicant’s representative provided further submissions to the Tribunal which footnote various articles in support. In those submissions, the applicant’s representative summarises the applicant’s account of events and submits that the applicant continues to fear return to Sri Lanka for the reasons he has previously given. He submits that the applicant maintains that he fears he would be suspected of having links with the LTTE due to his ethnicity, his previous detention, the previous targeting of him and his family by the authorities and his activities in Australia. He submits that the authorities continued to have an active interest in the applicant after he left Sri Lanka and the risk of persecution is exacerbated by the fact that he has been absent from Sri Lanka since October 2009 and resident in Australia. He notes that the applicant’s mother and sister have been recognised as refugees in Australia since the refusal of the applicant’s SHEV application. It is submitted that the applicant and his family were subjected to a pattern of harassment and abuse by the Sri Lankan authorities over a significant period, from 2006 to at least 2012, when the applicant’s mother and sister fled Sri Lanka. It is also submitted that there is evidence of ongoing extortion of Tamils by the military.
In relation to the applicant’s activities in Australia, his representative submits that the applicant volunteers for [Organisation 1] and has attended Heroes Day and Mullivaikkal Remembrance Day commemorations for LTTE soldiers and others who were killed in the civil war. It is submitted that the applicant has been involved with these activities over a number of years and has not done so to strengthen his claims to be a refugee. The applicant wishes to engage in similar activities if he returned to Sri Lanka.
The submissions refer to country information which indicates that people participating in public gatherings and protests in Sri Lanka have been photographed and may be arrested and detained for commemorating the war. It also refers to the banning of Heroes Day by the Sri Lankan government in November 2020 and the tightening of security around certain events and the potential consequences for people who participate. It is submitted that there is a real risk the applicant would be arrested and detained if he were to engage in the kinds of activities he has been carrying out in Australia and that this treatment would amount to persecution, especially in light of his previous detention, the history of targeting his family, the circumstances of his departure from and return to Sri Lanka and his history of attending pro-Tamil/LTTE activities outside Sri Lanka.
The submissions refer to the decision of the UK Upper Tribunal in KK and RS (Sur place activities: risk) Sri Lanka[4] and the relevance of some of the findings in that decision to the applicant’s activities in Australia and how he might be treated as a result, if he returned to Sri Lanka. The submissions state that as the applicant is not in possession of a passport he would be required to submit himself to the Sri Lankan authorities to obtain a travel document and would undergo an interview during this process in which he would be asked about his own and his family’s LTTE connection and sympathies, including any activities in Australia. It is also submitted that the Sri Lankan government is reasonably likely to have obtained information on whether an individual is associated with particular diaspora organisations and the nature of their involvement. The submissions state that the applicant has been involved with [Organisation 2] in Australia, which is a proscribed organisation, even though he did not specify this in his evidence to the Tribunal. The submissions also state that Indian authorities are particularly sensitive to the LTTE regrouping to take advantage in Sri Lanka of the current economic and political crisis.
Additional post-hearing submissions dated 24 June 2022
[4] [2021] UKUT 0130 (IAC) (‘KK and RS’).
On 24 June 2022, the applicant’s representative submitted further post-hearing submissions in which it is submitted that in light of the deteriorating conditions in Sri Lanka due to the financial crisis, the fact that the applicant has previously been targeted for extortion in Sri Lanka in 2009 and that he now runs a successful [business] in Australia and has a share portfolio worth over [amount], he is at heightened risk of extortion resulting in serious harm. A number of articles from The Guardian referring to the deteriorating economic situation in Sri Lanka and the civil unrest, were submitted in relation to the economic situation.
Further post-hearing submissions dated 1 August 2022
On 1 August 2022, the applicant’s representative submitted further post-hearing submissions as follows:
· Financial statements for the year ended 30 June 2022 for the applicant’s business;
· Letter dated [July] 2022 on the letterhead of [Organisation 2] signed by [Mr A], [Position 1] for Australia. In the letter, [Mr A] states that the applicant is known to him as an active member of the Tamil diaspora in Sydney and describes the types of activities the applicant has been involved in which have included “creating awareness of events, participated in protests and meetings in relation to the plight of Eelam Tamils in Sri-Lanka under the oppressive Sri Lankan government”. He goes on to say that the applicant has helped organise pro-Tamil ideology events and has “delivered vital contributions in pro-Tamil community activities and events and we have often discussed the politics that occur in Sri-Lanka” and “he has demonstrated that he has positive sentiments towards the Tamil struggle for independence”. [Mr A] goes on to say that “it is also known that political advocates like [the applicant] once returned to Sri Lanka are immediately captured and detained, kept in prison without any hearings for years, or made to disappear without trace.”
Nationality
The applicant claims to be a citizen of Sri Lanka and provided to the Department documentary evidence of his identity and citizenship, including copies of the bio-data pages of his Sri Lankan passport issued [in] 2005, his Sri Lankan birth certificate, his National Identity Card and his Sri Lanka driving licence. The delegate was satisfied that the applicant was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Sri Lanka. The Tribunal finds Sri Lanka is his receiving country for the purpose of assessing his claims for protection.
Consideration of claims and evidence
The relevant law
A Safe Haven Enterprise visa is a class of temporary protection visa, the purpose of which is to provide protection and to encourage enterprise through earning and learning while strengthening regional Australia: ss 35A(3A) and (3B).
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

The applicant gave evidence that his lawyer at the time helped him to fill out his SHEV application and that his lawyer and an interpreter helped him with his statutory declaration that he provided in support of his SHEV application. He confirmed there were no mistakes or changes he wished to point out.
During the hearings, the Tribunal discussed with the applicant his family, his education, his employment, his travel and migration history, his involvement with the Tamil community in Australia, the problems he experienced in Sri Lanka and why he fears returning to Sri Lanka. Overall, the Tribunal found the applicant to be a credible witness. However, as discussed below, that does not mean the Tribunal necessarily accepts all his claims.
In considering the applicant’s claims, the Tribunal has taken into account all the country information provided by the applicant in support of his claims, as well as other country information including the most recent DFAT Country Information Report on Sri Lanka from 23 December 2021[5] (‘DFAT Report’). Where necessary, the Tribunal refers specifically to that information below.
The applicant’s background and travel history
[5] DFAT Report.
Based on the evidence provided by the applicant, the Tribunal accepts that the applicant is a Tamil and a Hindu and that he was born in Jaffna in the Northern Province of Sri Lanka in [year]. The Tribunal accepts that from 1990 to 2004 the applicant and his family lived in India as refugees. The Tribunal accepts that in 2004, the applicant and his family returned to Sri Lanka and lived in Mannar, which is also in the Northern Province. The Tribunal accepts that in May 2006, the applicant left Sri Lanka and went to work in [Country 2] for three years. The Tribunal accepts that during this time, the applicant returned to Sri Lanka for around one month in February 2008 for his father’s funeral. The Tribunal accepts that the applicant finished working in [Country 2] in June 2009 and returned to Sri Lanka. The Tribunal accepts that the applicant departed Sri Lanka in October 2009 and has not returned there since. The Tribunal accepts that after leaving Sri Lanka the applicant travelled from [Country 3] to [Country 4] to [Country 5], and arrived in Australia by boat from [Country 5] in September 2011. The Tribunal accepts that the applicant has one [sister] still living in Sri Lanka, who lives in the Mannar district and he is in contact with her once or twice per year. The Tribunal accepts that the applicant’s mother and his other sister left Sri Lanka by plane from Colombo airport in August 2012 and arrived in Australia by boat in April 2013 and remain in Australia.
The Tribunal accepts the applicant’s evidence that he had no problems departing or arriving at Colombo airport in 2006, 2008 or 2009 and that he departed legally each time on his passport. The Tribunal accepts that he departed on his own passport from Sri Lanka on

[date] October 2009.
In the hearing, the Tribunal put to the applicant that he travelled to and from Sri Lanka in 2006, 2008 and 2009 legally on his passport and he did not have problems at Colombo airport, which suggested that he was not of adverse interest to the authorities. The applicant responded that he did not have a problem at the airport but the last time he knew it would be a problem and that is why he left and couldn’t go back. As discussed with the applicant, country information indicates that at the time of the applicant’s travels overseas, the Sri Lankan authorities had strict procedures in place at the airport in Colombo for departing passengers, including checkpoints on approach to the airport and detailed documentation checks inside the airport. A Department of Immigration and Emigration database available to immigration officers contained details of persons of concern to the authorities. Arriving passengers would also be checked by immigration officers against an alert list.[6] In the Tribunal’s view, the fact that the applicant did not encounter problems at the Colombo airport during his departures or arrivals from 2006 to 2009 indicates that he was not of adverse interest to the Sri Lankan authorities during this time, and the Tribunal finds as such.
Events in Sri Lanka and the applicant’s involvement with the LTTE
[6] United Kingdom: Home Office, Country of Origin Information Report - Sri Lanka, 11 November 2010, available at: 7 July 2022]
On the basis of the evidence provided by the applicant to the Department and the Tribunal, the Tribunal is prepared to accept that in March 2006, the applicant was questioned, detained overnight and beaten by the Sri Lankan Navy and later questioned and harassed by the police in his area, regarding the sale of goods from the [shop] where he worked, to people connected to the LTTE. The Tribunal accepts that the owner of the [shop] arranged the applicant’s release from detention and they both signed a document. The Tribunal notes that the applicant has referred to this as both a blank document[7] and an undertaking,[8] however the Tribunal does not consider this discrepancy to be significant. The Tribunal accepts that as a result of the harassment from the police, the applicant decided to leave Sri Lanka and go to work in [Country 2]. The Tribunal accepts that the applicant travelled to Colombo to obtain his visa and was questioned, but not harmed, by the authorities on his return. The Tribunal accepts that he departed Sri Lanka in May 2006.
[7] Statutory declaration of 30 January 2012.
[8] Statutory declaration of 18 February 2016.
As set out above, the Tribunal accepts that the applicant returned to Mannar, Sri Lanka for about one month in February 2008 following the death of his father. The Tribunal finds that the applicant did not have any problem with the authorities during this visit.
The Tribunal accepts that the applicant returned from [Country 2] in June 2009 and that [in] September 2009, he was taken by some CID officers to a house for questioning. The Tribunal accepts that at the house there were some other armed people who were not in uniform and were possibly from a paramilitary group, although the applicant does not know which one. The Tribunal accepts that these people told the applicant that the investigation into the 2006 incident was not finished and that if he didn’t pay them Rp [amount] they would harm him and they would start up the investigation from 2006 again. The Tribunal accepts that the applicant was released after he said he would pay the money in two or three days. The Tribunal accepts that the applicant consulted a lawyer and decided to leave Sri Lanka and that he did not pay any money to these people. He departed Sri Lanka on [date] October 2009 and has not returned since.
On the basis of the evidence given by the applicant in the hearing, the Tribunal accepts that he was never a member of the LTTE in Sri Lanka or elsewhere and that he was never approached by the LTTE for recruitment or training. The Tribunal accepts that he agreed with the LTTE’s policies but not their fighting, that he did not show any outward support for the LTTE and did not engage in any activities in support of the LTTE. The Tribunal accepts that he just listened and that he is opposed to violence.
In relation to the 2006 incident, the Tribunal put to the applicant that the fact he was released after only 24 hours, along with country information that indicates this type of arrest and questioning of young Tamil men was common at the time,[9] suggested the Navy and authorities did not in fact suspect him of being connected to the LTTE at the time. The applicant responded that these actions showed they had an interest in him. The Tribunal accepts that the actions of the Navy and police show they had an interest in him at that time, however, on the basis of the applicant’s evidence about his quick release and the country information, it does not accept that the authorities truly considered him to be involved with the LTTE. The Tribunal’s view is strengthened by its finding above about the applicant’s unhindered departure from the airport in Colombo around two months after this event, having obtained a visa for [Country 2].
[9] DFAT Report 3.8.
In relation to the 2009 incident, the Tribunal put to the applicant that country information indicated extortion by the police and paramilitary groups was quite common at this time[10] and it might find that the people who attempted to extort him were engaging in an opportunistic attempt to obtain money rather than any genuine attempt to reactivate an investigation of the 2006 incident. The applicant responded that he had continuous fear because of this incident and the harassment of his mother and sister continued even after he left Sri Lanka. The Tribunal does not accept the applicant’s response. The Tribunal considers that if the 2006 investigation into the applicant were ongoing, he would have been approached by the authorities when he returned to Sri Lanka for one month in 2008, or soon after he arrived back in Sri Lanka in June 2009, as they would have been aware of his presence. The fact that the people who tried to extort him did not approach him until he had been back in Sri Lanka for a few months and threatened to reopen the 2006 investigation if he did not pay them money, suggests that they were attempting to scare him and extract money rather than pursuing any genuine, ongoing investigation by the authorities into his connections with the LTTE in 2006. The Tribunal’s view is strengthened by its findings in relation to the applicant’s unhindered travel referred to above, and its finding that the applicant was not considered to be involved with the LTTE back in 2006 when the original incident occurred.
[10] Canada: Immigration and Refugee Board of Canada, Sri Lanka: 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, 8 February 2012, LKA103950.E (accessed 7 July 2022); Canada: Immigration and Refugee Board of Canada, Sri Lanka: Information on the Eelam Peoples Democratic Party (EPDP), including on the relationship between the EPDP and the Sri Lankan Army, whether they mistreat Tamil populations in the north or in Colombo; if so, whether they extort Tamils, 27 September 2010, LKA103588.E (accessed 7 July 2022)
Accordingly, the Tribunal finds that the applicant was not of adverse interest to the authorities and not suspected of being connected to the LTTE when he departed Sri Lanka in 2009. The situation in relation to the applicant’s mother and sister is considered further below.
Summonses given to the applicant’s mother in 2012
The Tribunal is prepared to accept that the two documents submitted by the applicant and referred to as ‘summonses’ dated [date] March 2012 and [date] March 2012[11] are genuine documents and that they came from the police in Mannar. The Tribunal accepts the applicant’s evidence that these documents were given to his mother. Despite what appear to be some discrepancies in the translation of these documents into English, the Tribunal accepts that these documents request the applicant to come to the police station in Mannar on [date] March 2012 and [date] March 2012 for an inquiry in relation to the 2006 incident.
[11] See paragraphs 40 and 20 above.
The applicant agreed in the hearing that these documents were from the police and not from a court, and he agreed that they did not indicate there were any formal charges or court proceedings existing against him at the time, in relation to the 2006 incident. The Tribunal accepts this.
Despite accepting that the summonses are genuine documents and that they indicate the police had some kind of interest in the applicant in March 2012, the Tribunal does not accept that in 2012 there was an ongoing police (or any other) investigation into the applicant in respect of the 2006 incident. The Tribunal has found above that based on the applicant’s evidence and his travel history, he was not of adverse interest to the authorities and not suspected of being connected to the LTTE when he departed or arrived in Sri Lanka in 2006 or in 2008 or 2009. The Tribunal does not consider it to be plausible that in 2012, three years after the war had ended with the military defeat of the LTTE and the greatly improved security situation in the north and east,[12] the police were going to commence or reopen an investigation into the applicant and his possible links to the LTTE in respect of the 2006 incident.
The applicant’s activities in Australia
[12] DFAT Country Information Report Sri Lanka 31 July 2013, 2.11, 2.13.
The applicant did not discuss with the delegate in his interview, or provide any evidence to the Department, about his involvement with Tamil-related activities in Australia.
As mentioned above, the day before the first Tribunal hearing the applicant provided some photographs of himself and a letter of support from [Organisation 1].
The Tribunal asked the applicant whether he has been involved in Sri Lankan or Tamil politics in Australia. The applicant gave evidence that he gets involved in refugee activities or prayers for martyrs. He said that last time there was a Mullivaikal[13] function he took part to give his prayers to people who died in the war. Sometimes he attends meetings in support of refugees generally in Australia, sometimes he attends meetings in support of Sri Lankan refugees. He started getting involved about five years ago and doesn’t attend these refugee events often; maybe once per year. His most recent involvement was two or three months ago and he carried a poster at a rally, which is shown in one of the photos he provided to the Tribunal. The rallies are directed at telling the problems of refugees to the Australian government in a non-violent way.
[13] Mullivaikal Remembrance Day is a day observed by some Sri Lankan Tamil people to remember the people who died in the final stages of the civil war. It is held on 18 May which is the date on which the civil war ended in 2009 and is named after the village where the final battle took place: (accessed 6 July 2022)
The Tribunal asked the applicant about the photo he provided of him standing in front of a board. He said it was taken on Martyrs Day[14] when they give respect to the fighters who died in the civil war. The photo he provided is from November 2021 and it is a screenshot from a friend who took a video at the event. He said that the event happens once a year. Usually, it is held outdoors [but] this time it was in a hall [because] of the COVID-19 pandemic. He has attended many times. He said when it is held outdoors, the event normally starts at [time] and he arrives an hour or so early to help if needed, then he pays his respects and leaves.
[14] Martyrs Day or Great Heroes Day or Maaveerar Naal is observed on 27 November and is a remembrance day observed by Sri Lankan Tamils to remember the deaths of LTTE fighters who died in the civil war: (accessed 6 July 2022)
The Tribunal asked the applicant whether he was involved in any other Tamil community activities in Australia. He said he is involved with the [Organisation 1] doing community events. He clarified that this is in relation to the broader community rather than the Tamil community. The Tribunal asked the applicant whether there were any other organisations he was involved with in the Tamil community and he said he was involved with things to do with the community but he did not do anything against the Sri Lankan government. The Tribunal asked him whether he was involved in any activities that supported a separatist agenda for Tamils. He said he was not, and nobody has invited him to do that. He just supports the community and refugees.
The applicant gave evidence that the photos of him from the [Organisation 1] in 2020 are at a Tamil community [event].
In the post-hearing submissions provided by the applicant’s representative, it is submitted that the applicant has volunteered for the [Organisation 1] since 2014 and that he attends Heroes Day and Mullivaikkal Remembrance Day every year. It is submitted that the applicant has photographic evidence of his attendance at these events and his involvement with the [Organisation 1]. It is submitted that his motive for attending these events and involvement with the [Organisation 1] over a number of years is not to strengthen his claim to be a refugee. The submissions also state that although the applicant did not specify in his evidence to the Tribunal, he has a history of engagement in Australia with [Organisation 2] because he “assists [Organisation 2] in relation to organising Heroes Day and Mullivaikkal Remembrance Day, eg with transport and setting up.” The submissions go on to state that [Organisation 2] is a proscribed organisation in Sri Lanka[15] and the UK Upper Tribunal in KK and RS held that proscription is “reasonably likely to entail a higher degree of adverse interest in a particular organisation and, by extension, individuals known or perceived to be associated with it.”
[15] The submissions state that proscription of groups is made where there are reasonable grounds to believe that they “…commit or attempt to commit, participate in or facilitate the commission of, terrorist acts…”
As noted in paragraph 53 above, on 1 August 2022, the applicant submitted a letter from the [Organisation 2] signed by [Mr A], [Position 1] for Australia. In the letter, [Mr A] states that the applicant is known to him as an active member of the Tamil diaspora in Sydney and describes the types of activities the applicant has been involved in which include having helped “creating awareness of events, participated in protests and meetings in relation to the plight of Eelam Tamils in Sri-Lanka under the oppressive Sri Lankan government”. He goes on to say that the applicant has helped organise pro-Tamil ideology events and has “delivered vital contributions in pro-Tamil community activities and events and we have often discussed the politics that occur in Sri-Lanka” and “he has demonstrated that he has positive sentiments towards the Tamil struggle for independence”. [Mr A] goes on to say that “it is also known that political advocates like [the applicant] once returned to Sri Lanka are immediately captured and detained, kept in prison without any hearings for years, or made to disappear without trace.”
The Tribunal has considered the applicant’s evidence about his activities in Australia relating to refugees. The Tribunal accepts that the applicant has been involved with the [Organisation 1] for a number of years and accepts the photos he has provided from 2020 as genuine. The Tribunal accepts that the applicant attends meetings or rallies in support of refugees in Australia, including Sri Lankan refugees, around once per year and that he started doing this around five years ago. The Tribunal finds that these rallies are peaceful and are directed at the Australian government, rather than at foreign governments including the Sri Lankan government. The Tribunal accepts the photos of the applicant attending a refugee rally a few months ago in Sydney are genuine.
In terms of the applicant’s claims and evidence about his specific involvement with Tamil community activities in Australia, the Tribunal notes that in his interview with the delegate, the applicant did not claim to have been involved in any Tamil community or refugee activities in Australia and did not make any new claims to the delegate about why he could not return to Sri Lanka, for example, on the basis of activities he had engaged in while in Australia. In the second Tribunal hearing, the applicant was asked about this and he explained that at the time of his interview with the delegate he was not aware that people who participated in events like Mullivaikkal Day or Heroes Day had problems when they returned to Sri Lanka but now he knows, and that is why he included it in his submissions to the Tribunal. The Tribunal is prepared to accept this explanation for why the applicant did not mention his attendance at such events to the delegate. However, the Tribunal also considers that if the applicant had been significantly or actively involved in pro-Tamil/LTTE political activities in Australia at that time, he would have been aware that this might cause problems for him if he returned to Sri Lanka.[16] Accordingly, the Tribunal finds that the applicant’s involvement at this time was not significant or active.
[16] DFAT Country Information Report Sri Lanka 24 January 2017.

The applicant’s evidence given in the first Tribunal hearing about his involvement with the Tamil community and events in Australia is set out in paragraphs 81 to 83 above. He said that he has attended Mullivaikkal Remembrance Day events and Martyrs Day commemorations in Sydney and that he has assisted with set up at Martyrs Day events in the past, if needed, for an hour or so before the event commenced, then he pays his respects and leaves. He did not refer to being involved with the [Organisation 2] and said he was not involved in anti-government or Tamil separatist activities.
In his post-hearing submissions dated 1 June 2022, it is submitted that the applicant has a “history of engagement with the [Organisation 2] in Australia”. The submissions state that the applicant “assists the [Organisation 2] in relation to organising Heroes Day and Mullivaikkal Remembrance Day, eg with transport and setting up”. The letter from the [Organisation 2] dated [July] 2022 states that the applicant has “helped in organising pro-Tamil ideology events which include but are not limited to Martyrs Day, Black July and Mullivaikkal Remembrance annual events”. It does not explain the nature of his assistance. It also refers to other assistance and support provided by the applicant.
In the second Tribunal hearing, the Tribunal put to the applicant its concern that the information he had provided after the first hearing about his activities in the Tamil community and connection to [Organisation 2] suggested a higher level of involvement than he had previously claimed, which raised a concern for the Tribunal about whether he was trying to exaggerate or embellish that claim. The Tribunal also put to the applicant that it might find aspects of the information in the letter from [Organisation 2] to be vague and lacking in detail, as well as coming from an organisation that had an interest in supporting his claims for protection, and this might lead the Tribunal to prefer the evidence the applicant gave in the first Tribunal hearing. The applicant responded that he requested the letter from [Organisation 2] because he did not have many photos to show his involvement in those activities. His representative submitted that the applicant was not attempting to exaggerate his evidence.
The Tribunal has considered these responses. In the first Tribunal hearing, the applicant was asked about his involvement with Tamil community activities and had ample opportunity to respond. The Tribunal prefers, and accepts, the applicant’s oral evidence given in the first Tribunal hearing about his involvement in these activities as it was given spontaneously in the first Tribunal hearing rather than being provided after the Tribunal had expressed its concerns about aspects of the applicant’s claims and evidence. The Tribunal considers that the evidence contained in the applicant’s post-hearing submissions and the letter from [Organisation 2] are attempting to suggest that the applicant has had a more extensive engagement or involvement with [Organisation 2] than he claimed in the first Tribunal hearing, and to this extent it gives that further evidence no weight.
For example, even if the Tribunal accepts that [Organisation 2] is responsible for organising the Mullivaikkal Remembrance Day and Heroes Day events the applicant has attended in the past, the Tribunal considers that to say assisting with set up for an hour or so before the event starts, if needed, amounts to assisting [Organisation 2] to organise Heroes Day and Mullivaikkkal Remembrance Day, is an exaggeration of the applicant’s level of involvement. The Tribunal does not accept that this type of activity engaged in twice a year at most, as opposed to being a member of [Organisation 2] and attending meetings or fundraising, for example, is the type of activity that would result in the applicant being perceived to be engaged or associated with [Organisation 2] in a manner that would be reasonably likely to entail a higher degree of adverse interest from the Sri Lankan authorities, as suggested in the submissions. This is discussed further below.
Likewise, based on the applicant’s evidence in the first Tribunal hearing, the Tribunal considers the statements in the letter from [Mr A] about the applicant having helped in “creating awareness of events, participated in protests and meetings in relation to the plight of Eelam Tamils in Sri-Lanka under the oppressive Sri Lankan government” and that the applicant has helped organise pro-Tamil ideology events and has “delivered vital contributions in pro-Tamil community activities and events and we have often discussed the politics that occur in Sri-Lanka” and “he has demonstrated that he has positive sentiments towards the Tamil struggle for independence”, are also an exaggeration compared to the applicant’s own evidence, as well as being vague and lacking in meaningful detail.
The Tribunal notes that the applicant’s oral evidence to the Tribunal is that he is not involved, and has not been invited to be involved, in any activities that support a separatist agenda for Tamils and he is opposed to violence and the Tribunal accepts this evidence. The Tribunal accepts his evidence that he is not involved in any activities against the Sri Lankan government, that he is not involved in any activities that support a separatist agenda for Tamils and that he has not been invited to be involved in any such activities. The Tribunal has also accepted the applicant’s evidence, referred to above, that he is opposed to violence. The Tribunal is prepared to accept that the applicant has attended Mullivaikkal Remembrance Day events in Sydney, including in 2021 and several Martyrs Day commemorations in Sydney. The Tribunal is prepared to accept that the applicant has assisted with set up at Martyrs Day events in the past, if needed, for an hour or so before the event commenced. The Tribunal accepts the photo of the applicant that he says is from his attendance at the November 2021 Martyrs Day commemoration as genuine.
The Tribunal acknowledges that Mullivaikkal Remembrance Day and Martyrs Day commemorations are, self-evidently, pro-Tamil, however the significance of the applicant’s attendance at these events must be considered in context. This is discussed further below.
Documents provided in relation to the applicant’s mother and sister
As discussed in paragraphs 43 to 45 above, prior to the Tribunal hearing the applicant’s representative provided copies of SHEV statements and grant notices relating to the applicant’s mother and sister. These were provided to the Tribunal with the caveat that the applicant’s sister and mother had not consented to sharing the contents of the SHEV statements with the applicant because they contain sensitive information. The applicant’s representative explained that the purpose of providing these documents to the Tribunal was because aspects of the SHEV statements of the applicant’s mother and sister support the applicant’s claims about what happened to him in Sri Lanka.
The Tribunal has considered these documents. In the first Tribunal hearing, the Tribunal explained to the applicant that it had read and considered the documents. The Tribunal noted that they contain information which is basically consistent with the applicant’s claims about what happened to him in Sri Lanka. The Tribunal explained that in its view, the other information contained in the statements is not relevant to the applicant’s claims and it would not have regard to that information in making its decision. The Tribunal invited the applicant and his representative to comment on this. They did not have anything to add.
In his post-hearing submissions, the applicant refers to his mother and sister being subject to ongoing harassment from the Sri Lankan authorities after he left Sri Lanka and submits that this, along with the summonses, indicates that the police had an ongoing interest in his family. The Tribunal has considered this submission. Based on the information contained in the SHEV statements, the Tribunal is prepared to accept that the applicant’s mother and sister continued to be harassed by the authorities until they left Sri Lanka.
Does the applicant meet the refugee criterion?

100. In his SHEV application form and supporting documents, and confirmed with the applicant in the Tribunal hearing, the applicant claims that he fears harm if he returns to Sri Lanka for the following reasons:
·     as a Tamil man from the Northern Province of Sri Lanka he will be suspected of being a member or supporter of the LTTE;
·     because he was arrested and interrogated in 2006, he will be suspected of being a member or supporter of the LTTE;
·     because the police and paramilitary members attempted to extort him in 2009 over what happened in 2006;
·     because the authorities continued to show an interest in him up to 2012 with the summonses;
·     as a returned asylum seeker who has been absent from Sri Lanka for an extended period since around the time the war ended.
101. During the Tribunal hearing and in his post-hearing submissions, the applicant also made the following claims as to why he fears harm if he returns to Sri Lanka:
·     due to his voluntary work at [Organisation 1] and annual attendance at Heroes Day and Mullivaikkal Remembrance Day in Australia;
·     his intention to commemorate Heroes Day and Mullivaikkal Remembrance Day if he returns to Sri Lanka;
·     he does not hold a current Sri Lankan passport;
·     he is at heightened risk of extortion due to his success in business in Australia and the economic conditions in Sri Lanka.
102. The Tribunal has considered each of these claims individually and cumulatively, as appropriate, below.
103. The Tribunal has considered the applicant’s claim that he fears harm if he returns to Sri Lanka because as a Tamil man from the Northern Province of Sri Lanka he will be suspected of being a member or supporter of the LTTE. As discussed above, the Tribunal accepts the applicant is a Tamil and that while he lived in Sri Lanka he lived in the Northern Province. Country information discussed with the applicant during the hearing indicates that the Sri Lankan Constitution forbids discrimination on the ground of race, religion, language, caste, political opinion and other grounds.[17] Ethnicity was certainly an issue during the civil war and remains a sensitive issue in Sri Lanka today.[18] These days, Tamils comprise most of the population in the Northern Province, however many Tamils also live in Colombo, looking for greater economic opportunities and many Tamils moved to Colombo during the war to escape the fighting.[19] Tamils are the second largest ethnic group in Sri Lanka and Tamil political parties are active.[20] DFAT assesses that Tamils in Sri Lanka face a low risk of official or societal discrimination based on their ethnicity[21] and there is no official discrimination on the basis of ethnicity in public sector employment.[22] Country information does not support the view that the Sri Lankan government views the entire Tamil cohort as holding separatist views or being politically active in any meaningful way.[23] DFAT assesses that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment.[24] Based on the country information above, the Tribunal does not accept that simply as a Tamil male from the Northern Province of Sri Lanka, the applicant would be suspected of being a member or supporter of the LTTE. Accordingly, the Tribunal finds that the applicant would not face a real chance of serious harm arising from these circumstances if he returned to Sri Lanka in the reasonably foreseeable future.
[17] DFAT Report 3.1.
[18] DFAT Report 3.1.
[19] DFAT Report 3.2.
[20] DFAT Report 3.4.
[21] DFAT Report 3.1–3.3.
[22] DFAT Report 3.6.
[23] UK Home Office, Country Policy and Information Note Sri Lanka: Tamil Separatism, June 2021, 2.4.2.
[24] DFAT Report 3.13.
104. The Tribunal has considered the applicant’s claim that because he was arrested and interrogated in 2006, he will be suspected of being a member or supporter of the LTTE. As discussed with the applicant in the hearing, country information indicates that during the war, many Tamils were monitored, arrested and detained and the security forces also imputed LTTE support on the basis of ethnicity, however the country information does not indicate that everyone who was arrested was imputed to be a member or supporter of the LTTE.[25] As discussed above, the Tribunal accepts the applicant’s evidence that he was arrested and interrogated in 2006, and questioned on returning from Colombo to obtain his visa for [Country 2], however the Tribunal has found that the applicant was not actually suspected at the time, or subsequently, of being connected to the LTTE. The Tribunal also accepts the applicant’s evidence that he has never been involved with the LTTE. On this basis, and given the event in question happened in 2006, which is now 16 years ago, the Tribunal finds that the applicant would not face a real chance of serious harm arising from these circumstances if he returned to Sri Lanka in the reasonably foreseeable future.
[25] DFAT Report 3.8.
105. The Tribunal has considered the applicant’s claim that he fears harm because the police and paramilitary members attempted to extort him in 2009 over what happened in 2006. As discussed with the applicant in the hearing, country information indicates that at the time, extortion by police imposters and various paramilitary groups was taking place in Sri Lanka.[26] Some of these people threatened to label individuals as LTTE activists or to harm them if they did not pay.[27] Country information does not indicate that these paramilitary groups still exist.[28] Some former paramilitary leaders and groups have entered Sri Lankan politics.[29] Country information indicates that police officers may engage in petty corruption, such as taking bribes instead of issuing traffic fines, but it does not indicate that they engage in extortion.[30] The Tribunal has considered the reference in the applicant’s post-hearing submissions dated 1 June 2022 to an article which includes the sentence, “In addition to its extortion of Tamils, the military operates an intensive surveillance system and routinely intimidates and harasses dissidents.”[31] The Tribunal has read this article and notes that it does not include further mention of extortion, nor does it explain what it means by extortion or provide detail on the type or extent of extortion that it claims takes place by the military or provide any more specific information on who, other than “Tamils”, is extorted and why. The DFAT Report does not refer to the military being engaged in extortion. It refers, for example, to the military in the north and east being active in a number of commercial businesses, mostly in the Northern Province, and that it retains some important land that it acquired during the war.[32] As discussed with the applicant in the second hearing, given the generality of the information contained in the article provided by the applicant and the lack of detail, the Tribunal does not accept that the Sri Lankan military engages in extortion of Tamils and gives this article no weight in assessing the applicant’s claims in this regard. Further, in light of the country information that the type of paramilitary groups who attempted to extort the applicant no longer exist and the police are not known to engage in extortion, combined with the Tribunal’s finding that there was no ongoing investigation into the applicant in respect of the 2006 incident, and the length of time that has passed, the Tribunal finds that the applicant would not face a real chance of serious harm arising from these circumstances if he returned to Sri Lanka in the reasonably foreseeable future.
[26] Sri Lanka – LKA39845 – Tamil-speaking Muslims – LTTE – Collaboration – Paramilitaries – Extortion, Country of Origin Information Section (COIS) 2 February 2012; Sri Lanka: Activity of the LTTE in Sri Lanka, including arrests, whether LTTE members have been responsible for extortion, disappearances or bombings since the government defeated the LTTE, and whether the LTTE has the capacity to regroup within Sri Lanka, Research Directorate, Immigration and Review Board of Canada, LKA 105432.E (accessed 11 August 2022); Sri Lanka: Information on the Eelam Peoples Democratic Party (EPDP), including on the relationship between the EPDP and the Sri Lankan Army, whether they mistreat Tamil populations in the north or in Colombo; if so, whether they extort Tamils, Immigration and Review Board of Canada, LKA103588.E (accessed 11 August 2022)
[27] As above.
[28] Country of Origin Information Services Section (COISS), Department of Home Affairs, Common Claims – Sri Lanka, 10 March 2022, page 18
[29] DFAT Report 3.4; Country of Origin Information Services Section (COISS), Department of Home Affairs, Common Claims – Sri Lanka, 10 March 2022.
[30] DFAT Report 2.11, 2.12.
[31] DFAT Report 2.18

106. In a separate but related claim in his post-hearing submissions, the applicant claims that he is at heightened risk of extortion due to his success in business in Australia and the current economic conditions in Sri Lanka. The Tribunal accepts the evidence provided by the applicant about his business and financial situation in Australia. In terms of the risk of extortion, the applicant did not submit any specific additional evidence to support this claim, although the Tribunal has considered the more general evidence and country information about extortion referred to in paragraph 105 above. In the second Tribunal hearing, the Tribunal put to the applicant that it was not aware of country information that indicates extortion is a particular feature of the current economic crisis. The applicant responded that extortion has been happening and he wanted to put this across as part of his claim. The applicant’s representative referred the Tribunal to a paragraph in a UK Home Office Report from 2020 which refers to Tamils facing harassment for various reasons including being wealthy.[33] The Tribunal has considered the applicant’s response and the reference in the Home Office Report, but does not accept them. The applicant’s response is simply an assertion, which the Tribunal does not accept. The reference in the Report is to a single source having heard stories of returning Tamils facing harassment and intimidation for various reasons, including being wealthy. It does not specifically mention extortion, or provide further detail on what the harassment and intimidation might involve, whether it is more likely in some areas than others, how common it is or other particular detail. Given the generality of this information and the lack of reference to extortion, the Tribunal gives it no weight in assessing the applicant’s claim.

[33] Report of a UK Home Office fact-finding mission to Sri Lanka, published 20 January 2020, 2.3.1 (accessed 9 August 2022)

107. As discussed above, the Tribunal has accepted that the applicant was targeted for extortion in 2009, but does not consider that to be relevant to assessing the applicant’s claim that he is at heightened risk of extortion if he returned to Sri Lanka in the reasonably foreseeable future. In light of the lack of evidence to support the applicant’s claim that he will face extortion due to his financial success, the Tribunal does not accept this claim and finds that the applicant would not face a real chance of serious harm arising from these circumstances if he returned to Sri Lanka in the reasonably foreseeable future.

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.

126. As discussed above, the applicant’s evidence about his departure from Sri Lanka in October 2009, which the Tribunal accepts, is that he departed legally from Colombo airport on his own passport. This being the case, the Tribunal finds that the applicant would not be considered to have committed an offence under the Sri Lankan Immigrants and Emigrants Act (1948) which makes it an offence to depart Sri Lanka other than via an approved port of departure without a valid passport. The DFAT Report states that returnees who departed Sri Lanka legally are not required to face a court as no offence under the Immigrants and Emigrants Act (1948) applies.[38] The Tribunal finds this is the case for the applicant.
[38] DFAT Report 5.21.
127. Based on the DFAT Report, the Tribunal accepts that on return to Sri Lanka, the applicant would be subject to an interview and have his identity confirmed. Based on the evidence before it, the Tribunal finds that the applicant does not have a criminal or terrorist background, he is not subject to outstanding court orders, arrest warrants or criminal matters and so he would not be detained or persecuted during processing at the airport.
128. The Tribunal does not consider the fact that the applicant left Sri Lanka soon after the war ended to be significant or to somehow increase his risk of harm. The applicant had been absent from Sri Lanka working in [Country 2] since May 2006 and did not return to Sri Lanka (other than briefly in 2008) until June 2009, which was after the war ended in any event.[39] The Tribunal does not consider the fact that he departed Sri Lanka (legally) again a few months later would cast suspicion on him in terms of a connection to the LTTE or for any other reason.
[39] The war ended in May 2009 with the military defeat of the LTTE.
129. In the second Tribunal hearing, the applicant was asked about his claim that having obtained protection in Australia would put him at risk of harm. The applicant clarified that he was referring to the fact that the IPA had found he was owed protection and if he went back, the authorities might suspect he had been involved in anti-government activities. The Tribunal does not accept this submission. The IPA decision recommended that the applicant be recognised as a person to whom Australia has protection obligations. The DFAT Report does not indicate that people who have been found to be owed protection at some point during their visa application process in Australia would be at risk of harm if they returned to Sri Lanka in the reasonably foreseeable future for that reason. Further, there is no reason why the Sri Lankan authorities would be aware of the IPA recommendation, and in any event, that IPA recommendation did not result in the applicant being granted a protection visa and so it would not alter the fact that the applicant would be returning to Sri Lanka as a failed asylum seeker, which is the basis on which the Tribunal has considered his situation if he returned to Sri Lanka in the reasonably foreseeable future.
130. In light of this, the Tribunal finds that the applicant would not face a real chance of serious harm arising from his circumstances as a returned asylum seeker who has been absent from Sri Lanka for an extended period, if he returned to Sri Lanka in the reasonably foreseeable future.
131. The Tribunal has considered the applicant’s claim that he would continue to commemorate Heroes Day and Mullivaikkal Remembrance Day if he returned to Sri Lanka. The Tribunal is prepared to accept that applicant’s evidence that he would continue to commemorate these annual events in Sri Lanka and finds that his involvement in such events would be quiet and peaceful, as it has been in Australia. The Tribunal also finds that, like in Australia, the applicant would not be involved in organising such events.
132. In considering this claim, the Tribunal has considered where the applicant would live if he returned to Sri Lanka. When asked about this in the Tribunal hearing, the applicant said he would not return to Sri Lanka and that he cannot live there. The evidence before the Tribunal is that the applicant has spent very little of his adult life in Sri Lanka, that he has one sister still living in Sri Lanka in the Mannar district, Northern Province, to whom he is not particularly close, and that he has other relatives in Sri Lanka but he is not in contact with them. In the Tribunal hearing and his post-hearing submissions dated 24 June 2022, the applicant gave evidence, which the Tribunal accepts, that in Australia he has started a successful [company]. The post-hearing submissions indicate that the applicant started this company in 2016, and in 2021 it had an annual turnover in excess of [amount]. The applicant also has accumulated a share portfolio worth in the vicinity of [amount]. He lives in metropolitan Sydney. In the second hearing, the Tribunal put to the applicant that based on his background, it might find that if he returned to Sri Lanka he would live in Colombo rather than in the north or east. The applicant responded that wherever he goes he will face danger. The Tribunal does not accept this response as it is not supported by the country information or the Tribunal’s findings. The DFAT Report indicates that many Tamil returnees to Sri Lanka choose to return to the north 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.[40] In the case of the applicant, the Tribunal finds that his personal links to the north are not strong and as a person who has enjoyed financial and business success in Australia, who has lived in Sydney and who has some financial resources at his disposal, he would settle in Colombo as it is the country’s commercial capital and would provide him with better opportunities and a more familiar lifestyle (albeit noting the current economic and political crisis facing Sri Lanka, which is discussed below). Therefore, the Tribunal has considered the applicant’s commemoration of Heroes Day and Mullivaikkal Remembrance Day on the basis that he would live in Colombo and commemorate those events there, rather than in the north or east of Sri Lanka.
[40] DFAT Report 5.27.
133. The DFAT Report states:
Monitoring, harassment, arrest and detention

…
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.
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 Rajapakasa, 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.

134. The post-hearing submissions dated 1 June 2022, refer to the Sri Lankan authorities tightening security in Tamil-dominated areas ahead of the Mullivaikkal Remembrance Day commemorations and possible protests. However, as discussed with the applicant in the second hearing, country information from after the 2022 event, which is more recent than the information contained in the DFAT Report, indicates that people were able to publicly commemorate Mullivaikkal Remembrance Day in Colombo without interference from the Sri Lankan security forces, including people speaking up against the current government.[41] Tamils across the north-east commemorated the event, including people gathering in Mullivaikkal village, which is the place where the final battle in the war took place. While country information indicates attendees were photographed by police investigators in Mullivaikkal, it does not indicate that participants were prevented from commemorating the event or were arrested or detained and rallies took place in other towns.[42]
[41] (accessed 6 July 2022); (accessed 7 July 2022)
[42] (accessed 6 July 2022); (accessed 7 July 2022)
135. As noted in the post-hearing submissions dated 1 June 2022, the Sri Lankan government banned Heroes Day in November 2020, however as discussed with the applicant in the hearing, country information indicates that despite this ban, some Tamils have continued to commemorate the day.[43] News reports from the time indicate that some courts in Sri Lanka issued orders preventing commemorative events in November 2021, while others refused applications by police to ban commemorations or imposed certain restrictions such as not using symbols or photographs of the LTTE if the events went ahead.[44] Country information indicates that commemorations in 2021 continued to take place in some areas, with people gathering and lighting lamps in groups or in their homes. In some areas in the north and east, Tamils were prevented from entering, or were forced out of, former LTTE cemeteries by security forces where they intended to commemorate the event. There were reports of a journalist being beaten and a prominent activist being arrested.[45] Security at checkpoints in the northern and eastern regions of Sri Lanka was intensified in the days leading up to the 2021 commemoration.[46]
[43] DFAT Report 3.11.
[44] (accessed 6 July 2022); (accessed 6 July 2022); (accessed 6 July 2022); (accessed 6 July 2022)
[45] (accessed 6 July 2022); (accessed 6 July 2022); (accessed 6 July 2022)
[46] (accessed 6 July 2022)
136. The Tribunal put to the applicant that based on the country information, it might find that if he returned to Sri Lanka and continued to commemorate these events in a quiet and peaceful way, which is what he said he intended to do, he would not face a real chance of serious harm. The applicant responded that because of the instability in Sri Lanka they have relaxed the rules but when the government is stable they will ban the functions and arrest people. The Tribunal does not accept that the country information supports the applicant’s assertion that the rules around these commemorations have been relaxed. The country information, including the DFAT Report, indicates that the focus of the security forces in relation to the commemoration of these events is on the Tamil-dominated north and east of Sri Lanka. On the basis of the country information referred to above, the applicant’s evidence that he would commemorate these events in a quiet and peaceful way, the Tribunal’s finding that he would do so in Colombo, and he would not be involved in organising these commemorative events, the Tribunal finds that the applicant would not face a real chance of serious harm arising from these circumstances if he returned to Sri Lanka in the reasonably foreseeable future. As noted in the DFAT Report, participants in these types of events may be photographed or monitored, particularly in the north and east. Even if the applicant is photographed or monitored, the Tribunal does not consider that this means he would face a real chance of serious harm as a result.
137. The Tribunal has considered the applicant’s claim in his 2016 statutory declaration that the situation for Tamils in the north of Sri Lanka remains very difficult, that there is still a strong military presence and Tamils cannot live freely, and that he would be continuously monitored and would not be able to live freely. For the reasons set out above, the Tribunal does not accept that the applicant would live in the north if he returned to Sri Lanka in the reasonably foreseeable future and so the Tribunal does not accept this claim as being relevant to the applicant’s circumstances. Therefore, the Tribunal finds that the applicant would not face a real chance of serious harm arising from these circumstances if he returned to Sri Lanka in the reasonably foreseeable future.
138. In relation to the economic and political crisis in Sri Lanka, the Tribunal accepts that the current situation in Sri Lanka is unstable and that it has resulted in civil unrest in some parts, for example, over fuel shortages.[47] It is also prepared to accept that minorities, such as Tamils, may be affected more severely, particularly in the northern and eastern areas of the country, due to the poorer economic conditions in those areas.[48] However, as discussed with the applicant during the hearing, reports indicate that the situation is impacting negatively on the Sri Lankan population as a whole rather than being directed at particular groups within the country, such as Tamils. While the Tribunal accepts that the situation for the applicant if he returned to Sri Lanka in the reasonably foreseeable future would be difficult, the Tribunal finds that he has financial resources at his disposal and he would be able to subsist. Accordingly, the Tribunal finds that the applicant would not face a real chance of serious harm arising from these circumstances if he returned to Sri Lanka in the reasonably foreseeable future.
139. The Tribunal has considered the claim in the applicant’s post-hearing submissions dated
1 June 2022 that the Indian authorities are particularly sensitive to the LTTE regrouping to take advantage in Sri Lanka of the current economic and political crisis. The Tribunal asked the applicant in the second hearing to clarify this claim and he said that the Indian media is reporting that Tamils from Sri Lanka are attempting to reorganise the LTTE. The Tribunal understands this submission to mean that authorities in Sri Lanka would be on heightened alert for any resurgent LTTE activity in the Tamil diaspora. While authorities may be on heightened alert, based on the Tribunal’s findings in relation to the applicant and his profile, the Tribunal finds that he would not face a real chance of serious harm arising from these circumstances if he returned to Sri Lanka in the reasonably foreseeable future.
140. As well as considering the applicant’s claims individually, the Tribunal has considered his accepted claims on a cumulative basis. This is that the applicant is a [age]-year-old Tamil man from the Northern Province of Sri Lanka who was arrested and interrogated by the authorities in 2006, he was the subject of an extortion attempt in 2009, he was the subject of two summonses in 2012, his mother and sister were harassed by the authorities after he left Sri Lanka, he would be a returned asylum seeker who has been absent from Sri Lanka since soon after the war ended and does not hold a current passport, he has attended Mullivaikkal Remembrance Day and Heroes Day commemorative events in Sydney, he has been involved with refugee community activities in Sydney, he has enjoyed financial success in Australia and he intends to continue commemorating Mullivaikkal Remembrance Day and Heroes Day peacefully in Sri Lanka. Considering the applicant’s claims on a cumulative basis, for the reasons discussed above, the Tribunal finds that he would not face a real chance of serious harm arising from these circumstances if he returned to Sri Lanka in the reasonably foreseeable future.
141. Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Sri Lanka now or in the foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
142. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).

143. In making its decision, the Tribunal is mindful of the fact that in 2012, the IPA assessor found that the applicant was a person in respect of whom Australia has protection obligations and that he met the criterion for a protection visa. However, for the reasons explained above, having considered the applicant’s claims, the Tribunal is not satisfied that if the applicant returns to Sri Lanka now or in the foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Does the applicant meet the complementary protection criterion?
144. As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
145. As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[49] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm for any reason. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[47] (accessed 7 July 2022); (accessed 7 July 2022)
[48] (accessed 7 July 2022); DFAT Report 2.15–2.17
[49] MIAC v SZQRB [2013] FCAFC 33.
Conclusion
146. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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, the applicant does not satisfy the criterion in s 36(2).
decision

149. The Tribunal affirms the decision not to grant the applicant a protection visa.
Rachel Da Costa
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.
…

[2022] AATA 3559

22 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice