1733095 (Refugee)

1733095 (Refugee) [2023] AATA 3500 (7 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Shamili Kugathas
CASE NUMBER:  1733095
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Gabrielle Cullen
DATE:7 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 07 August 2023 at 9:42am
CATCHWORDS
REFUGEE – Protection Visa –Sri Lanka – race – ethnic Tamil –actual or imputed political opinion – a suspected LTTE supporter – Tamil separatist activities in Australia – sister was forcibly recruited to the LTTE – membership of the particular social group – a failed seeker of refuge – a Tamil male from the North – the persecution the applicant fears constitutes serious harm – adverse political profile – State protection is not available to the applicant –decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 91, 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 dependants.
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 8 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 is a citizen of Sri Lanka claims to fear return because he has a genuine and continuing commitment to his political beliefs which are pro-Tamil, a commitment to memorialising the people killed in the war and memorialising the LTTE, and a commitment to an independent Tamil State and to holding the Sri Lankan government to account for the genocide committed by the Sri Lankan government, as well as being against the Sri Lankan government’s past and current treatment of Tamils. He also fears return as he originates from the same [area] as [a] former LTTE leader in the North of Sri Lanka, he was rounded up and beaten prior to 2007 as a Tamil from the North, his sister was forcibly recruited by the LTTE who following the end of the war in 2009 was sent to a rehabilitation camp, and he assisted a man named [Mr A], who was a leader with the LTTE, with accommodation in May 2010 which led him to flee to India. He also claims to fear return as a returned asylum seeker.
Information from the applicant indicates the applicant departed Sri Lanka and lived and worked in [Country 2] from 2007 to 2010, returned to Sri Lanka in January 2010 and then travelled to India in June 2010 with his Indian visa expiring on [date] February 2011, departing from there to Australia. Movement records indicate the applicant arrived in Australia by boat as an unauthorised maritime arrival on [date] March 2011, he was found not to be owed protection by the Department, but on 20 February 2012 the Independent Protection Assessment Office recommended that the applicant be recognised as a person to whom Australia has protection obligations. He was subsequently granted a Subclass 449 visa on 13 March 2012 which ceased on 20 March 2012 and was then granted a bridging visa. On 20 September 2015 the s 46(1)(a) bar was lifted allowing him to apply for a protection visa. On 15 September 2016 he applied for a Subclass 790 Safe Haven Enterprise visa to which this decision relates.
The applicant attended an interview at the Department on 1 June 2017. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision.
The delegate refused to grant the visa on 8 December 2017. He did not accept the applicant’s sister was forcibly recruited or that he was of any interest to the Sri Lankan authorities as he offered [Mr A] accommodation in 2010 and did not accept based on country information that he would face a real chance of serious harm or a real risk of significant harm on account of his attendance at remembrance events in Australia, due to his ethnicity, where he is from in Sri Lanka, and as a failed asylum seeker.
The applicant applied for review of the Department decision on 28 December 2017 and attached the decision of the Department.
The applicant appeared before the Tribunal on 31 July 2023 to give evidence and present arguments and where relevant the evidence from that hearing appears in this decision.
The issues to be considered in this case are as follows:
·Is the applicant credible as to his country of citizenship?
·Does he have a right to enter and reside in any other country?
·Is the applicant credible as to his claims?
·Does the applicant have a well-founded fear of persecution in relation to Sri Lanka and meet the refugee protection provisions of the Act?
·Does the applicant meet the protection obligations under the complementary protection provisions of the Act?
CRITERIA FOR A PROTECTION VISA
The relevant criteria for a protection visa are outlined in the Appendix.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources. This includes, but is not limited to, the following:
·The applicant’s application for a Safe Haven Enterprise visa dated 15 September 2016, including identity documents.
·Oral evidence provided by the applicant at the Department interview held on 1 June 2017 and the Tribunal hearing held on 31 July 2023.
·Submissions from the applicant’s former representative, the Refugee Advice & Casework Service, on behalf of the applicant dated 8 June 2017.
·Letter from [name], Events Coordinator at [Organisation 1], dated 30 May 2017 noting the applicant was actively involved in decorating and promoting [Event 1] in 2015, 2016 and 2017 and [Event 2] or [Event 3] in 2015 and 2016.
·Letter from [name], [a politician], outlining his involvement with the applicant and his family in Sri Lanka dated 7 June 2017. He notes that he has known the applicant for a long time and when he was arrested in 2007 he assisted in his release. He notes that the applicant’s sister joined the LTTE during the last phase of the war and his family faced struggles because of that. He claims the applicant was wanted by the LTTE for helping a member of the LTTE and fled Sri Lanka in fear of persecution.
·Submissions from the applicant’s former representative, Florin Burhala Lawyers, on behalf of the applicant dated 21 November 2011 and subsequent submissions.
·Statutory declaration of the applicant signed 14 April 2011.
·Letter from BMA Lawyers to the Department with the applicant’s police certificate attached dated 10 September 2014.
·Submission from the applicant’s current representative dated 24 July 2023. A subsequent email from the applicant’s representative advised of an error in the submissions that the applicant does not have any brain injuries and they seek to remove the paragraph at the bottom of page 3.
·Court release document pertaining to the applicant’s sister who is claimed to be a member of the LTTE dated 16 September 2009.
·Letter from the [Organisation 1] in relation to the applicant’s Tamil separatist activities in Australia dated 23 July 2023. It notes the applicant is a volunteer at [Organisation 1] in Sydney and that they have known the applicant over the past 10 years as he assists in organising community events, protests, and [meetings]. The letter notes the applicant actively helps in organising, promoting and setting up various pro-Tamil events including [Event 2] and [Event 1] annual events.
·Copies of the applicant’s [social media] posts indicating support for the LTTE from 2021 and 2014 with evidence that a post of the LTTE leader was removed as restricted on 11 April 2023.
·Country information submitted at hearing as follows:
o   Tamils brave military intimidation to observe Maaveerar Naal (Heroes Day) dated 27 November 2022, Journalists for Democracy in Sri Lanka.
o   Sri Lanka: Mullaitivu police threaten to shoot Tamils over Maaveeraar Naal commemorations Sri Lanka Brief dated 27 November 2022.
o   Country information from the Tamil Guardian as to the monitoring of the Sri Lankan government of Tamil posts.
·Email from the applicant’s representative submitted after the hearing on 31 July 2023 as follows summarising the oral submissions at hearing:
We ask that the AAT make a finding that the applicant has a genuine and continuing commitment to memorialising the people killed in the war, memorialising the LTTE, to an independent Tamil State, and to holding the Sri Lankan government to account for the genocide committed by the Sri-Lankan government. We submit that these views come from the applicant’s personal experiences and are long held and have continued for a long period of time during his time in Australia.
It is clear from the evidence submitted that the applicant’s participation goes beyond mere attendance and includes significant assistance to these organisations over a long period of time.
Having regard to the applicant’s evidence of his long time involvement in these activities, having regard to the support letters from the Tamil organisation, and to the applicant’s testimony at his interviews which demonstrate and his desire for Tamil independence and the Sri Lankan government being brought to account for the committed genocide, we submit that the Applicant’s activities in Australia have been taken because of his genuine political beliefs and views on these matters and not for the sole or even partly for the purpose of strengthening his claim to be a refugee, and as such 5J(6) has no application in this case.
·Department of Foreign Affairs and Trade (DFAT) Country Information Report Sri Lanka, 21 December 2021 (referred to as the DFAT Report at hearing).
·Department of Immigration – PAM3 Refugee and humanitarian – Complementary Protection Guidelines and PAM3 Refugee and humanitarian – Refugee Law Guidelines.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Is the applicant credible as to his country of citizenship?
On the basis of the applicant’s identity documents and evidence provided at hearing, the Tribunal accepts that the applicant is a national of Sri Lanka. Therefore, for the purposes of s 36(2)(a) the Tribunal accepts that Sri Lanka is the country of nationality and for the purposes of s 36(2)(aa) the Tribunal accepts that Sri Lanka is the receiving country.
Does he have a right to enter and reside in any other country?
While there is evidence that the applicant lived in [Country 2] from 2007 to 2010 and India in 2010/2011 there is no evidence before the Tribunal that he currently has a right to enter and reside in any other country in terms of s 36(3)–(5) of the Act, other than Sri Lanka.
Is the applicant credible as to his claims?
The applicant’s claims
The applicant claims to fear return to Sri Lanka for the following reasons:
·He is ethnic Tamil, from [Village 1], [City 1], Northern Province, Sri Lanka, and fears harm as a consequence of his ethnicity and area of origin. The applicant was born and resided in the same [area] as [a] former LTTE leader [name].
·Because his family live in the village of [Village 1], they have always been supportive of the LTTE and have close family friendships with the leadership of the LTTE.
·Prior to departing for [Country 2] in 2007 the applicant was constantly questioned by the Sri Lankan Army (SLA) and was caught up at least 6 times in army round‑ups. He claims he suffered beatings and was detained. He claims he departed in 2007 to work in [Country 2] because of army beatings and attention. He claims his family were also rounded up. On one occasion when he was held in detention by the army, the local Member of Parliament attended the camp with his parents to negotiate and secure his release.
·He claims he will receive adverse attention from the Sri Lankan authorities as a suspected LTTE supporter as he provided accommodation to a senior member of the LTTE leadership named [Mr A]. Specifically, after he returned to Sri Lanka in January 2010 from [Country 2], while working in his father's [business] in May 2010 he agreed to let a man named [Mr A] and his wife stay in his aunt’s house which was vacant. At the Independent Protection Assessment interview held on 10 March 2011 he stated that the SLA came and arrested [Mr A] because he was involved with the leadership of the LTTE. He claims [Mr A] had not disclosed to him his involvement with the LTTE. Following his arrest, [Mr A] told the army that the applicant arranged his accommodation for him and 2 days later the army came to the applicant’s father’s [business] looking for him. In fear, the applicant left Sri Lanka again in June 2010 and travelled to India on a 3-month visitor visa.
·He claims he will face adverse attention with suspected links to the LTTE as his sister was with the LTTE. Specifically, he claims that in approximately 2007, the applicant’s second sister, [Ms B], was forcibly recruited into the LTTE because his eldest sister had gone into hiding and the applicant had fled to [Country 2] as it was not safe for young people in their village. [Ms B] was therefore recruited into the LTTE as she was the eldest child in their family. She fought in the final war and was placed in a rehabilitation camp by the SLA when captured.
Since her release from the rehabilitation camp, she has lived with the applicant’s parents in [Village 1]. She had informed the applicant that she was subject to cruel and inhumane treatment in the rehabilitation camp as a young female LTTE cadre. She was required to sign in at the army checkpoint every week and continues to sign in at the army checkpoint every 3 months.
·As a returned asylum seeker from Australia.
The applicant claims he will be harmed on return on the basis of his political opinion and activities as he has a genuine and continuing commitment to memorialising the people killed in the war and memorialising the LTTE, and a commitment to an independent Tamil State and to holding the Sri Lankan government to account for the genocide committed by the Sri Lankan government. In particular, he claims to have been actively involved in Tamil politics in Australia for about 10 years, being involved in promoting, attending and decorating for [Event 2] and [Event 1], as well as attending pro‑separatist Tamil events. At hearing, he referred to activities promoting these events and his active involvement which is outlined below.
Assessment of credibility of the applicant’s claims
As to the applicant’s credibility, while the Tribunal has, as detailed below, concerns regarding aspects of the applicant’s claims and evidence, particularly that his sister was forcibly recruited to the LTTE and that he assisted [Mr A], who was with the LTTE leadership, which the Tribunal does not accept as true, there are other claims which the Tribunal is satisfied are true.
Specifically, the Tribunal accepts that because of his consistent evidence since his arrival in Australia in 2011 throughout the process that the applicant was born and lived in the village of [Village 1], [City 1], in the North of Sri [Lanka]. It accepts he is of Tamil ethnicity. It accepts his family continue to live in the same village, operating a [business], and it accepts he departed Sri Lanka for [Country 2] in 2007 due to a fear of being a Tamil male from the North and due to the harm he faced. It also accepts that he would be viewed on return as a failed asylum seeker and returnee from Australia and/or the West.
It also accepts the applicant and his family faced the difficulties he claims prior to his departure to [Country 2] in 2007 at the hands of the Sri Lankan authorities as a Tamil from the North and as he is from the [area] of [a] leader of the LTTE. It accepts he was questioned on numerous occasions and detained, and that he and his family were rounded up by the SLA. In this regard, there is sufficient information to indicate that, at least up to the end of the civil war in May 2009, and most likely soon after, Sri Lankan citizens who were Tamils in the North and East and likely elsewhere were at an appreciable risk of persecutory harm at the hands of the authorities simply because of their Tamil ethnicity.[1] The Tribunal accepts as per the 2009 UNHCR Guidelines that Tamils, prior to 2009, were frequently suspected as being associated with the LTTE, and that the applicant and his family at that time may have been so suspected and suffered the difficulties as claimed prior to or soon after the end of the war in 2009, especially as they are from the same [area] as [an] LTTE leader. The Tribunal finds that the difficulties he claims he, along with his family, faced as a Tamil and/or a Tamil from the North and being from the [area] of [a] former LTTE leader at that time is consistent with independent information.
[1] 2009 UNHCR Eligibility Guidelines for Assessing the International protection Needs of Asylum Seekers in Sri Lanka.
With regard to his political opinion, the Tribunal accepts from the applicant’s detailed and credible evidence at hearing evidence of his [social media] posts referring to the LTTE and the recent letter from the [Organisation 1] that the applicant is pro-Tamil and has a genuine and continuing commitment to memorialising the people killed in the war and memorialising the LTTE, and a commitment to an independent Tamil State and to holding the Sri Lankan government to account for the genocide committed by the Sri Lankan government.
At hearing, he was able to describe credibly and in detail his political opinion and why it was not something he had raised in the past and why he had said at interview in 2011 that he did not have a connection to the LTTE and was not a political supporter. As to why this has changed and why he was now actively involved, he referred to his political maturity, how his understanding has grown since coming to Australia as he can express his political opinion in Australia but could not in Sri Lanka, and he referred to his involvement with the [Organisation 1] for the last 10 years. He referred to wanting non-violent change. He was able to express at hearing his political views and the difficulties Tamils have faced in the past and the difficulties they face currently in detail, consistent with independent information. As to why he is involved, he referred to Hindu temples being damaged, the lack of Tamil rights and the lack of political freedom and freedom of expression for Tamils. He said he believes in Tamil separatism so Tamils can be free to speak.
The Tribunal accepts that for the last 10 years, as outlined in the recent letter from the [Organisation 1] and in his evidence provided in detail at hearing, he has expressed his political opinion by being involved in Tamil politics in Australia, attending and decorating for [Event 2] and [Event 1] as well as attending pro‑separatist Tamil events. When asked at hearing as to what he does, he said he does the decorations and coordinates the promotion of the events by printing brochures, putting them on walls, and distributing them mostly on Saturday to parents at Tamil schools. He said he designs and creates the tombs for those killed during [Event 3] as he is good in handicraft and carpentry. He referred to his full involvement in these events as to promoting and being involved in the procession. He also referred to attending a protest in 2015/2016 in [a venue] when the UN were gathering evidence and attending an event [in] May with [an organisation] to protest the genocide, seeking justice for those killed.

When asked what he would do on return to Sri Lanka, he said he would continue to attend these events as the LTTE sacrificed themselves for Tamils. When asked what would happen to him, he said he is fully aware he may be taken in by the SLA, intimidated and tortured. The Tribunal noted in the past they had allowed Tamils to celebrate [events] and he referred to the difficulties faced by those who attended and organised the events last year. As to whether he would involve himself in anti-government activities if returned to Sri Lanka, including promoting Tamil separatism or a Tamil nation, he said his aim is to find a solution for the Tamils who face restricted freedoms in many aspects of day-to-day life, and especially in expressing their opinion. He answered in the affirmative when asked whether a fear of harm would prevent him fully expressing his political opinion in Sri Lanka.
The Tribunal also accepts the applicant has made [social media] posts of the LTTE leader, posts that are pro-Tamil and pro-LTTE. It notes that while there have been few likes and shares, this represents his political opinion. It accepts his post of the LTTE leader in 2023 was restricted and taken down. He does not know by whom and claims it is the work of the Sri Lankan government.
Having considered all the evidence as to what the applicant believes and his activities in Australia, the Tribunal accepts that since coming to Australia, the applicant’s understanding of the political situation in Sri Lanka has increased and he now has a different or more informed view of events in Sri Lanka. It accepts the applicant has a genuine and continuing commitment to memorialising the people killed in the war and memorialising the LTTE, and a commitment to an independent Tamil State and to holding the Sri Lankan government to account for the genocide committed by the Sri Lankan government, and that he appreciates what the LTTE was trying to achieve in terms of helping Tamil people and improving their situation in Sri Lanka. Based on the way the applicant expressed his views in the Tribunal hearing, the Tribunal finds that the applicant holds his views genuinely and is a vocal advocate for these views, publicly expressing them through active involvement in and promotion of Tamil events, attendance at protests, as well as publicly on [social media].
Notwithstanding the above, there are aspects of the applicant’s claims which the Tribunal does not accept as true.
Specifically, it does not accept his sister was at any time forcibly recruited or worked with the LTTE, as the first time this was raised was in 2017. In particular, he advised at the Independent Protection Assessment interview in 2011 that his family did not have any relationship with the LTTE. When questioned at the recent Tribunal hearing why he did not raise it before 2017, he referred to being told not to mention any association with the LTTE as it was not liked by the Australian authorities and he advised the Department that he was concerned his sister would be investigated and her difficulties would recommence. As he had representation previously in 2011 which would have advised him of the privacy at interview and of the process, it does not accept his reasons for not raising it then if true.
Further, the Tribunal does not accept as credible the claim that the applicant attracted the adverse attention of the SLA in May 2010 for letting [Mr A] stay at his aunt’s home and that [Mr A] was a senior member of the LTTE leadership. Evidence indicates that while there was a man named [Mr A] who was a senior leader of the LTTE, he was arrested in January [2010].[2] Further, the Tribunal is of the view that if the applicant were associated with a senior leader of the LTTE, and his family were also involved as it was his aunt’s house, the SLA would have undertaken further questioning of his family and particularly of his father, even if he was elderly. This is particularly so given the concerted efforts by the Sri Lankan military in 2010 to pursue people with any form of link to the LTTE in their attempt to quash any reformation of the LTTE.
Does the applicant have a well-founded fear of persecution in relation to Sri Lanka and meet the refugee protection provisions of the Act?
[2] See Independent Protection Assessment decision.
The Tribunal accepted that the applicant has a genuine and continuing commitment to his political beliefs which he publicly expresses, which are that he is pro-Tamil, has a continuing commitment to memorialising the people killed in the war and memorialising the LTTE, and a commitment to an independent Tamil State and to holding the Sri Lankan government to account for the genocide committed by the Sri Lankan government, as well as being against the Sri Lankan government’s past and current treatment of Tamils.
Based on the way the applicant expressed his views in the Tribunal hearing, the Tribunal finds that the applicant holds his views genuinely and is a vocal advocate for these views, publicly expressing them through active involvement in and promotion of Tamil events, events memorialising the Tamils killed in the war and protesting the treatment Tamils, as well as memorialising the LTTE on [social media].
Under s 5J(1), a person has a ‘well-founded fear of persecution’ if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person is taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–5LA.
In determining whether a person has a ‘well-founded fear of persecution’, s 5J(1)(a) contains a subjective requirement that an applicant, in fact, holds a fear of being persecuted. On the basis of his evidence, the Tribunal accepts that the applicant has a genuine fear of being persecuted in Sri Lanka because of his political opinion being opposed to the government of Sri Lanka. Further, the Tribunal finds that his conduct in Australia, being involved in and promoting Tamil events and protests, in the manner outlined above, as well as posting in [social media], was being engaged in otherwise than for the purpose of strengthening his claim to be a refugee. While this conduct has only been fully expressed following his arrival in 2011, it accepts his reasons as to the development of his political opinion, active involvement in and promotion of political events. Therefore, that conduct has not been disregarded: s 5J(6). The Tribunal finds that the applicant does have the subjective fear of being harmed for reasons of his political opinion as contemplated in s 5J(1)(a) of the Act.
Further, s 5J(1)(b) imposes an objective standard that there be a real chance the applicant will be persecuted if returned to his or her receiving country. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. However, a person can have a well‑founded fear of persecution even if the possibility of the persecution occurring is well below 50 per cent.[3] Section 5J(4) requires that, for a fear to be well-founded, one or more of the reasons in s 5J(1)(a) must be the essential and significant reason for the persecution; it must involve serious harm, and it must involve systematic and discriminatory conduct.
[3] Chan Yee Kin v MIEA (1989) 169 CLR 379.
Country information indicates that the Sri Lankan authorities collect and maintain intelligence on former LTTE members, supporters and other separatists and the authorities may monitor members of the Tamil diaspora returning to Sri Lanka depending on their risk profile.[4] Country information indicates that the focus of the authorities is very much on people who are associated with politically sensitive issues and who have been politically active in supporting Tamil separatism through activities such as fundraising, leadership roles in diaspora groups and actively advocating for Tamil statehood. As explained in KK and RS,[5] when looking at a person’s involvement in these types of events and whether they could be considered to have undertaken a ‘significant role’, the Sri Lankan authorities are likely to be interested in activities such as attendance at public demonstrations, membership of or particular roles within relevant organisations, meaningful fundraising on behalf of relevant organisations, attendance at commemorative events such as Heroes’ Day, social media activity whether manifested by the posting of original comments or promoting the views of others, political lobbying and the signing of petitions perceived as being critical of the government. This is reflected in the 2021 DFAT Report at paragraph 3.57.
[4] DFAT Report 3.41, 3.54–3.57
[5] KK and RS, Sri Lanka CG [2021] UKUT 00130 (IAC), 27 May 2021 (referred to as KK and RS) at [482]
In KK and RS, the Upper Tribunal states that the extent and duration of the activities engaged in is relevant and any assessment must turn on the facts of the particular case.[6] In assessing whether a person would be considered by the Sri Lankan authorities to have, or be perceived to have, undertaken a ‘significant role’ in Tamil separatism, the Upper Tribunal states at [475] that it is:
satisfied that the [Sri Lankan government’s] objective is to identify those who are an actual or perceived threat to the integrity of the Sri Lankan state by reason of their committed activism in pursuit of the establishment of a separate Tamil state on the island of Sri Lanka. This is the contextual prism through which the term “significant role” should be interpreted.
[6] KK and RS at [486], [493].
In KK and RS, the Upper Tribunal concludes that prior to an individual returning to Sri Lanka on a temporary travel document (TTD), the Sri Lankan authorities are reasonably likely to have obtained information about them on the matters set out above and to have undertaken an assessment.[7] Their assessment of this information will determine whether an individual is placed on a ‘stop’ or ‘watch’ list that will identify them as such when they arrive at Colombo airport.[8] Even though the context of the analysis in KK and RS relates specifically to the process in the United Kingdom, the Tribunal is prepared to accept that the process in Australia would be similar in the sense that some kind of background checks would be undertaken by the Sri Lankan authorities on an individual returning on a TTD prior to their return. The Tribunal accepts that the applicant does not have a Sri Lankan passport, and that if he returned to Sri Lanka in the reasonably foreseeable future he would be returning on a TTD.
[7] KK and RS at [414]
[8] KK and RS at [423]
Based on the Tribunal’s findings above regarding the applicant’s political opinion, including for a separate Tamil State, involvement in and promotion of Tamil activities in Australia for 10 years, as outlined above, and his social media activity in support of the LTTE, the Tribunal is prepared to accept that the applicant has been involved in sufficient activities in Australia over an extended period of time, and that if these activities were known to the Sri Lankan authorities, he would be perceived as having a level of commitment to Tamil separatism and/or support of the LTTE that may be of concern. While the Tribunal cannot know for certain whether the Sri Lankan authorities would be aware of the applicant’s activities in Australia, based on the country information, it cannot dismiss this possibility as remote. Consistent with the analysis in KK and RS, cumulatively, the Tribunal is prepared to accept that due to his actions in Australia, the applicant would be considered to have a profile of sufficient concern that he would attract adverse attention on his return to Sri Lanka.
The DFAT Report and KK and RS refer to individuals of concern being placed on a ‘stop’ or ‘watch’ list. The ‘stop’ list includes individuals with a court order or arrest warrant in place and the ‘watch’ list includes individuals whom the Sri Lankan security services consider to be of interest, including for suspected separatist activities.[9] The Tribunal finds that based on the applicant’s profile referred to above, there is a real chance he would be placed on a watch list. In KK and RS, the Upper Tribunal explains that returnees who arrive at the airport in Colombo and are on a ‘watch’ list will not be detained at the airport, but depending on their profile they may be detained later.[10] Those who are detained would be people who have a profile of sufficiently strong adverse interest to warrant detention and being detained means the individual faces a real risk of being subjected to serious harm.[11] Others are reasonably likely to be monitored by the authorities but they are not generally at risk of detention, and monitoring is generally not considered to constitute persecution.[12]
[9] DFAT Report 3.41
[10] KK and RS at [503]–[511]
[11] KK and RS at [511]–[512]
[12] KK and RS at [516], [519]
The Tribunal has therefore considered whether the applicant faces a real chance of being detained if he returns to Sri Lanka in the reasonably foreseeable future. As referred to above, the applicant gave evidence in the hearing that he would try and continue his political activities if he is returned to Sri Lanka. The Tribunal accepts this. The Tribunal finds that based on his behaviour in Australia, the applicant would want to involve himself in anti‑government or pro-Tamil separatist activities in Sri Lanka as an activist. The Tribunal did not specifically ask the applicant whether he would continue to share pro-Tamil or pro‑LTTE material via [social media] if he returned to Sri Lanka, but the Tribunal accepts that he would continue to do this because it is consistent with his political views and his conduct in Australia to date. The Tribunal is also prepared to find that in the applicant’s case, if he stopped doing this in Sri Lanka it would be due to fear rather than because he had abandoned his political views.
The UNHCR Report refers at paragraph 45 to reports that at least 70 people have been arrested under the Prevention of Terrorism Act (PTA) for sharing social media posts commemorating victims of the war that included LTTE images or Tamil nationalist iconography. It also refers to a directive issued by the Sri Lankan Inspector General of Police dated 23 October 2021 providing guidance on restricting the use of the PTA and exercising greater discretion in evaluating cases such as possession of pictures. The DFAT Report refers to a Tamil man being arrested in April 2021 for allegedly sharing a photo of Prabhakaran.[13] While the country information does not provide further detail on what extent of sharing social media posts might attract the adverse attention of the authorities, the Tribunal accepts that it continues to be a sensitive issue.
[13] DFAT Report 4.23
The Tribunal is prepared to find that the combination of the applicant’s profile that the Tribunal has found would be sufficient to have him placed on the watch list, along with the types of activities the Tribunal accepts he would engage in on return to Sri Lanka, including sharing social media posts containing LTTE images or Tamil nationalist iconography and attending [commemorations], would be sufficient to place him at risk of detention and questioning by the authorities in the reasonably foreseeable future after his return to Sri Lanka. Country information about the PTA indicates that it is a piece of legislation with a very specific purpose and is not part of the ordinary criminal law.[14] The DFAT Report states that the PTA has been used against Tamils,[15] but the UNHCR Report indicates that very few people remain detained under that Act[16] which suggests that, relatively speaking, its use is not widespread. The DFAT Report states that it is not aware of returnees from Australia to Sri Lanka being charged under the PTA.[17] The Tribunal does not accept that the applicant faces a real chance of detention under the PTA, but for the reasons explained above, it finds that based on his profile he would face a real chance of being detained by the authorities for questioning. While the Tribunal does not consider the applicant’s chance of detention to be high, it finds that the chance is more than remote, which means that it is a real chance.
[14] DFAT Report 4.20–4.26.
[15] DFAT Report 4.23
[16] UNHCHR Report at paragraph 43; DFAT Report 4.23–4.24
[17] DFAT Report 4.24
Given the Tribunal accepts the applicant faces a real chance of being detained, it follows from this that based on country information about the treatment of detainees by Sri Lankan authorities, including the police and military officers, the Tribunal also accepts that by being detained the applicant would face a real chance of serious harm while in detention, even if his detention is only relatively brief.[18]
[18] KK and RS at [510], [515]; US Department of State Country Reports on Human Rights Sri Lanka 2022 UK Home Office Report 2022
On the basis of the applicant’s evidence and the independent evidence outlined above, the Tribunal finds that the applicant’s political opinion would therefore be the essential and significant reason for any persecution: s 5J(4)(a). For the purposes of s 5J(4)(b) of the Act, s 5J(5) provides that the following types of harm are in the nature of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment; and (c) significant physical ill-treatment. The Tribunal accepts that the applicant will suffer in the form of physical harm from the Sri Lankan authorities.
However, the applicant also indicated that he may not fully express his political opinion, including attending and promoting events, due to a fear of harm.
In this context, it is no answer to his claims to suggest that he could avoid that persecution by concealing and suppressing his well-founded sense of injustice and grievances with the government. According to the High Court decision in Appellant S395/2002 v Minister for Immigration (S395/2002 v MIMA), the need to act discreetly to avoid the threat of serious harm constitutes persecution. In this decision, Justices McHugh and Kirby stated:[19]
In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
[19] Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [43].
The principle underlying the judgments in S395/2002 v MIMA is that asylum seekers are not required, nor can they be expected, to take reasonable steps to avoid persecutory harm.[20] The Federal Court has emphasised that, on the reasoning of the High Court in S395/2002 v MIMA, the harm in question is the threat of persecution, rather than the impact of repressed behaviour.[21]
[20] VFAC v MIMIA [2004] FCA 367 (Weinberg J, 31 March 2004) at [32].
[21] SZTFI v MIBP (2015) 231 FCR 222 at [72].

The principle in S395/2002 v MIMA has been held to continue to apply under the codified refugee provisions, specifically whether an applicant faces a real chance of being persecuted under s 5J(1)(b).[22] The Tribunal notes that the provisions of s 5J(3) of the Act, which state that 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 his or her receiving country, specifically exclude as unreasonable any modification that would (amongst others) conflict with a characteristic that is fundamental to the person’s identity or conscience, conceal an innate or immutable characteristic of the person, or require the person to alter his or her sexual orientation or gender identity or to conceal his or her true sexual orientation, gender identity or intersex status. It specifically refers to a person altering his or her political beliefs or concealing his or her true political beliefs.
[22] ESD17 v MIBP [2018] FCA 1716 (Rangiah J, 14 December 2018) at [28]–[29]. See also MIBP v BBS16 [2017] FCAFC 176 (Kenny, Tracey and Griffiths JJ, 10 November 2017) where the Full Federal Court proceeded on the basis that the principle in S395 applied to the codified refugee provisions but did not expressly engage with this question (see, e.g. [82]).
The Tribunal finds that, although the applicant may choose to modify his behaviour if he returns to Sri Lanka and not express his political opinion fully, he would be doing so only to avoid persecution and due to fear, and in doing so, he would be required to conceal his political opinion. Section 5J(3) therefore does not prevent the applicant from having a well‑founded fear of persecution.
On the basis of independent information and the evidence of the applicant, the Tribunal finds that the persecution the applicant fears constitutes serious harm as contemplated by s 5J(5) of the Act.
Pursuant to s 5J(4)(c), to be persecution, the harm the applicant will suffer must involve conduct in the sense of it being deliberate and premeditated,[23] and discriminatory, in the sense that the persecutor is motivated to harm the applicant personally[24] because he has a genuine and continuing commitment to his political beliefs which are pro-Tamil, a commitment to memorialising the people killed in the war and memorialising the LTTE, and a commitment to an independent Tamil State and to holding the Sri Lankan government to account for the genocide committed by the Sri Lankan government, as well as being against the Sri Lankan government’s past and current treatment of Tamils. The Tribunal accepts based on the credibility of the applicant’s evidence and the independent information that there is a real chance the government, or those working for the government, will deliberately harm the applicant because of his political beliefs and the way he expresses them, in the manner outlined above, and that the chance is not remote that he will face serious harm. The Tribunal finds that the conduct to which the applicant will be subjected is systematic and discriminatory essentially and significantly for one of the reasons set out in s 5J(1)(a), and so the Tribunal is satisfied that s 5J(4)(c), and therefore all of s 5J(4) of the Act, is met.
[23] See VSAI v MIMIA [2004] FCA 1602.
[24] Ram v MIEA (1995) 57 FCR 565 at 568
On the basis of the findings of fact above, the Tribunal is satisfied that the applicant has a real chance of suffering persecution in the foreseeable future, if returned to Sri Lanka: s 5J(1)(b) of the Act.
The Tribunal finds that the real chance of persecution relates to all areas of Sri Lanka, and this meets s 5J(1)(c), as the government, from whom the applicant fears persecution, maintains control of all of Sri Lanka.
As the harm the applicant faces is at the hands of the Sri Lankan government, security and intelligence forces, the Tribunal is satisfied that the applicant will be unable to obtain protection by those authorities from the harm he faces. The Tribunal therefore finds that effective protection measures as defined in s 5LA of the Act are not available to the applicant in Sri Lanka: s 5J(2).
Therefore, based on all the evidence above, the Tribunal finds the applicant has a well‑founded fear of persecution as defined in s 5J of the Act. Therefore, he meets the meaning of ‘refugee’ set out in s 5H of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s 36(2)(a).
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Gabrielle Cullen
Member
ATTACHMENT - CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 3500

7 August 2023

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

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Natural Justice