1800524 (Refugee)

[2023] AATA 2910

1800524 (Refugee) [2023] AATA 2910 (7 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Maria Psihogios LLM. LLB (Hons) BA

CASE NUMBER:  1800524

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Brendan Darcy

DATE:7 June 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that:

·the first named applicant satisfy s 5H(1) of the Migration Act;

·that the second named applicant satisfy s 36(2)(a) of the Migration Act; and

·the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second named applicant.

Statement made on 07 June 2023 at 4:12pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – actual or imputed political opinion – anti-government/pro-LTTE – particular social group – failed asylum seeker of Tamil ethnicity – former LTTE combatant with officer rank – amputation – unlawfully departed on fraudulent passports – Tamil women with connections with former LTTE combatants – credibility concerns – reasons for providing a false statement – exaggerations or embellishments – decision under review remitted

LEGISLATION
Australian Security Intelligence Organisation Act 1979 (Cth), s 4
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 91R, 91S, 91WA
Migration Regulations 1994 (Cth), r 1.03; Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
McDonald v Director-General of Social Security (1984) 1 FCR 354
Nagalingam v MILGEA & Anor (1992) 38 FCR 191
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 December 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of the Democratic Socialist Republic of Sri Lanka (Sri Lanka), applied for the visas on 29 September 2015. The delegate refused to grant the visas on the basis that the delegate did not accept that the first named applicant was a person of interest at the time of departure, and it was not accepted the applicants faced a real chance of serious harm or the real risk of significant harm on the basis of being Tamil, as being imputed with Tamil separatism and being failed asylum seekers, cumulatively considered.

3. The first and second named applicants appeared before the Tribunal on 30 May 2023 to give evidence and present arguments. The other named applicants, as young minors, were not required to give oral evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.

4. The applicants were represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Background

12. For the purposes of this decision, the first named applicant will be referred to as the first applicant or the applicant; the second named applicant will be referred to as the second applicant or the applicant’s spouse; the third named applicant as the third applicant; the fourth named applicant as the fourth applicant; and the fifth named applicant as the fifth applicant.

13. The first applicant was born on [date] in [City 1] of Sri Lanka’s Northern province; the second applicant was born on [date] in [District 1] in the same province.

14. They both provided copies of their respective birth certificates issued in Sri Lanka with accompanying translations into English.

15. The first and second applicants claimed to be in a married relationship. A copy of their marriage certificate (with a translation) indicates they were married [in] November 2006 in Sri Lanka.   

16. The third applicant was born [date] in Sri Lanka. It is claimed the first and second applicants are the third applicant’s biological parents. A copy of her Sri Lankan birth certificate is also on Departmental file.

17. The fourth and fifth applicants were both born on [date] in Adelaide, South Australia. South Australian birth certificates were provided for both applicants.

18. The first, second and third applicants claimed to have departed Sri Lanka for [Country 1] [in] April 2011 and that they travelled on fraudulently obtained passports organised by a third party or agent in Colombo. The same applicants spent a month in [Country 1], then a further six months in [Country 2] before arriving in Australia’s Christmas Island territory in the Indian Ocean on the vessel code named [name], as irregular maritime arrivals [in] January 2012.

19. The first applicant attended an entry interview with Australian officials on [date] January 2012, meanwhile the second applicant attended an entry interview on [date] January 2011.

20. The applicants lodged an application for a Protection Obligations Evaluation (POE) on [date] January 2012. The claims are summarised as follows:

    ·     The first applicant claimed to be an ethnic Tamil citizen of Sri Lanka. For most of the civil war period he lived in the LTTE controlled area of the country. The first applicant claims he was not a member of the LTTE and did not fight in the war;

    ·     He was expected to support the Tamil Tiger government in various ways. His roles were to help build bunkers when required and to collect food from local villages for the LTTE fighters;

    ·     In March 2009 members of his family were killed during a Sri Lankan Army (SLA) artillery barrage and two days later in another artillery attack his father was killed and his wife injured. The claimant lost a leg in the same attack. It was at about this time that his brother disappeared and whose whereabouts remain unknown;

    ·     After recovering in an LTTE controlled hospital the first applicant had no further direct difficulties with the SLA although after the cessation of hostilities, life was very hard;

    ·     On [date] March 2011, he claimed he was standing by a road when he was detained by persons he believes to have been members of the Eelam People’s Democratic Party (EPDP), who were working with and for the SLA. He claims he was blindfolded, handcuffed, and taken to a house at an unknown location. The claimant said he was kept constrained for two days;

    ·     He was then untied but his prosthetic leg was removed to immobilise him. He was accused of being an LTTE member and his loss of limb was quoted as an example of proof that he fought in the civil war;

    ·     One of the detaining officers told him he would be executed but offered to help him escape in return for money. The first applicant agreed and referred the officer to his wife to finalise the arrangements. This he did and approximately 14 days after being picked up, the bribed officer helped him through the perimeter wire at night and he met his wife who was awaiting him with another prosthetic limb;

    ·     In fear, they immediately travelled to a town some 90 kilometres away and began preparations to leave the country. This was done by a smuggler who arranged passports, in their own names, and air tickets to [Country 1];

    ·     The claimant fears return to his country because he will be viewed as a person who has escaped from army detention, thus substantiating the claims against him that he had been active in the LTTE, which was the cause of his original detention. The first applicant fears immediate arrest on return, followed by torture and probable death at the hands of the Sri Lankan authorities;

    ·     He also fears persecution on the basis of his ethnicity and his wife claims to fear persecution as a member of a particular social group, viz a spouse of an LTTE suspect.

21. The first and second applicants received a positive evaluation for the POE on 8 March 2012.  The evaluator found that:

    ·     The claimant is a citizen of Sri Lanka and is outside his country of nationality. The claimant has no other nationality and does not have a right to enter and reside in a third country;

    ·     The cessation clauses in Article 1C of the Refugees Convention do not apply to the claimant, and there is no information indicating that the claimant comes within one of the exclusion clauses in Articles ID, IE and IF of the Refugees Convention;

    ·     Article 33(2) of the Refugees Convention does not apply to the claimant. The harm that the claimant fears is for a Refugee Convention reason and amounts to persecution;

    · That effective protection, pursuant to sections 36(3)-(5) of the Migration Act, is not available to the claimant. Furthermore, internal relocation is not a reasonable option for the claimant; and

    ·     That having carefully considered the claimant’s account in terms of detail, internal consistency and credibility and after having regard to country information, the delegate is satisfied that the claimant’s fear of being persecuted is well-founded.

22. The first, second and third applicants were released from detention on 23 August 2012 when they were granted Class UJ Subclass 449 (temporary humanitarian) visas.

23. The fourth and fifth applicants were born on [date] in Australia. It is claimed that the first and second applicants are their biological parents which is reflected in the copies of their birth certificates issued by the relevant authority in Australia.

24. There are no copies of Sri Lankan passports on any of the Departmental files.

    Safe Haven Enterprise Visa application

25. On 26 January 2016, the applicants lodged an application for Class XE Subclass 790 (Safe Haven Enterprise) visas (or SHEVs).

26. The first and second applicants submitted joint written claims for protection in a signed and witnessed statement of claims ted 26 January 2016. Their joint claims (with some editing and redaction) are as follows:

    Why did you leave Sri Lanka?

    Response by the first applicant

    ·During 2007, I dug bunkers for the LTTE. I was obliged to support them as it was the only way I could live in the area (LTTE controlled Northern Province).  Everyone in the area was obligated and the duties were rotated. When my shift came around, I would have to go dig bunkers. I worked in a shop. The LTTE would instruct my employer to collect food from a certain area. I would leave to go and collect the food to give to the LTTE. I did not do these jobs willingly; I had to do it as part of my employment. Part of our salary was taken from my wages by the employer like a tax or royalty and given to the LTTE. If I could not go to dig bunkers because I was sick, another person would be sent but I had to pay them their salary;

    ·On [date] March 2009, there was a ‘shell attack’ at [Location 1]. My sister-in-law and her two children were killed. After this attack, my brother came and stayed with us for a few days;

    ·On [date] March 2009, again at [Location 1], another ‘shell attack’ hit our area. I lost my leg in this attack and my wife was injured. My father was killed. I did not know what had happened to my brother. Since them we have lost contact with him. The attack occurred in the early hours of the morning and a few hours later the ambulance took us to [a] School where [the] Hospital was running at the time due to heavy shelling and bombing. We were transferred by UNHCR and Red Cross by ship to [Hospital 1]. When we got off the ship to go to the hospital, the CID and army took records and photographs of us before they let us go to the hospital. All the men were stripped of their clothes, and we were all identified with numbers. We ended up in [Hospital 2] and received ongoing treatment for a few months;

    ·After leaving hospital, I could not find suitable employment given I had lost my leg. I was on crutches and had two prosthetic legs: one for practising my walking and one for travelling with. A priest looked after us for almost a year and supported us. He received foreign aid and provided us with food and shelter. A lot of people with injuries were being looked after by this priest using foreign aid.

    ·In 2011, we were residing in [Location 2]. On[date] March 2011. I was in front of a shop with my crutches. The CID and EPDP came and arrested me. They put me in a van and took me to a camp. They removed my prosthetic leg, blindfolded me and tied my hands. I was beaten up and one of the officers was telling me he had information I collected food for LTTE  and had involvement with them. I denied and said everyone in the area was forced to do things for the LTTE against their will. I was kicked and could hear screaming from other detainees. I was blindfolded at the time and the EPDP spoke Tamil. Some members of the CID were Muslim and could also speak Tamil. One of their names was [Mr A] and another Sinhala officer was [Mr B]. Another EPDP was called [Mr C]. I only learnt their names later through my wife when she paid ransom for my escape. [Mr B] said he had seen me at the hospital. The CID had been monitoring the hospital the whole time we were there.

    ·After three days they removed the blindfold from my eyes so I could see. The EPDP said that I would be executed, and a few people had already been killed. [Mr C] told me I should pay some money to get away. I told him I did not have a leg so how could I run away? I gave him my wife’s number so he could contact her. My wife had come looking for me but the CID had denied I was in their custody.

    ·[Mr C] called my wife and she told him if she heard from me. she was prepared to pay the money. As I had given her number to [Mr C] and nobody else could have given this number to her, she believed I was alive. She sold some land and jewellery to pay the ransom. [Mr C] informed me my wife paid the money. About fourteen days after my arrest [Mr C] told me that he would release me that night, I had to crawl under a chicken wire fence, go through the thick jungle and my wife would be waiting with a prosthetic leg at [the named] Road. Me told me he would help me from here but if anyone saw me after tiie fence, they would shoot me. My escape depended on my luck. I escaped that night and crawling. I saw my wife holding my son under one arm and my prosthetic leg under the other.

    ·We travelled from there to [City 2] on bus as it was not safe to return to our area. We stayed in a lodge and decided we need to leave Sri Lanka quickly. We were not thinking clearly and just wanting to survive. If I was caught by the CID or EPDP, I would not be spared any mercy. They would have killed me as I was an escapee and, they would kill my son also. I knew of another man who had a prosthetic leg as he had had diabetes and lost his leg. He and members of his family were executed in [City 1] by the CID on suspicion of involvement with the LTTE.

    ·A man named [Mr D] approached us and saw our state. He told me we could flee to [Country 1] and register there to stay there. A few days later he came back and said we could go to [Country 1] then to Australia. We had to flee Sri Lanka as i was thinking of my family and young child. We travelled from [Country 1] to [Country 2] and eventually journeyed to Australia to seek asylum.

    The second applicant’s responses

    ·I married my husband in 2006 and have lived with him since them. On [date] March 2009, I was sitting crouched over feeding my son. A shell fell into our bunker and I was injured. Shrapnel hit me and I had spinal injuries. The shrapnel is still in my back. My father-in-law was scattered in pieces when the shell hit. My son suffered trauma also and even now when there is a loud noise or a can opening, he gets scared as it sounds like a shell.

    ·I confirm the events of my husband's arrest and trying to get him released. I believe due to my assisting him to escape and, being a member of the social group of my husband, who is suspected of being a member of LTTE, I was and continue to be at risk of persecution. As an ethnic Tamil, we are persecuted by the Sinhala authorities and throughout my life I have faced discrimination. We fled Sri Lanka to escape further persecution and being killed.

    What do you think will happen to you if you return to Sri Lanka? The first and second applicants jointly responded;

    ·We will be captured, harassed, tortured and executed because we are Tamil and suspected of having involvement with the LTTE. The CID, EPDP have our records and the authorities will pass on our information to them. There is a real risk we would face significant harm and persecution. Our children’s lives will be in danger as their father is suspected of involvement with the LTTE.

    Did you experience harm in Sri Lanka?

    Response by the first applicant

    ·We suffered a lot and I am still undergoing psychological treatment. Sometimes I cannot sleep and have nightmares still. I would sit and think about my father and how he was scattered in pieces and, my brother. If my wife came and asked me something while I was thinking of these incidents, I would not respond due to my mind being occupied with these horrors. I am seeing a counsellor and some of these traumas have improved since.

    ·I frequently get severe leg pain. I need to go to the doctor to get strong pain killers. Mostly I would be advised to remove the prosthetic leg and rest for a while. My ability to work has been reduced due to my leg injury'. The injury in my hand also caused by the shrapnel reduces my ability to hold things. My eye has been injured and I have scars all over my body. I used to be a hard worker but due to my reduced mobility. I am not able to work as before.

    Response by the second applicant

    ·If I lift heavy items, I get severe pain in my back. The shrapnel in my back causes the pain. If I try to lift my children, it hurts. At night, sleeping in certain positions hurts and, I end up frustrated and crying.

    Did you seek help within Sri Lanka after that harm?

    The first and second applicants’ joint response

    ·No. We could not seek help from the authorities because they would capture us and kill us on suspicion of involvement with the LTTE. The aid agencies that did help us (e.g. Red Cross) were all monitored or connected to the CID and army. Even some of the local Sinhala workers of the Red Cross are indirectly supporting the CID. They speak Tamil and pass information onto the CID.

    Did you move, or try to move, to another part of Sri Lanka to seek safety? The first and second applicants jointly responded:

    ·No. We were constantly displaced. Everywhere we moved we had to register with the GS. if the GS were to identify families of Tamils suspected of being involved with LTTE, he would receive favour with the CID and army. The authorities were aware of our location as a result. It was hard to find a place as people were not willing to provide accommodation for us.

    Do you think you will be harmed or mistreated if you return to Sri Lanka?

    The first applicant’s response

    ·Yes. No need to talk about harm and mistreatment, I am certain they will kill me. My wife and children also face harm. My wife will be a widow and there will be nobody to support her and our three young children. Our sons will be deprived of a proper education and face discrimination. The CID continues to look for us. We are trying to obtain original documents from Sri Lanka. My mother is elderly and she was able to get my original birth certificate from Sri Lanka. She was not harassed too much due to her age.

    The second applicant’s response

    ·As we were married in my area, we have to get original birth certificates and marriage certificate from the Government Departments in this area. My brother had to approach die authorities to get these documents and pay bribes to obtain them. He was able to get these documents but is too scared to send them via the postal system now as the CID and army is harassing him since then. He was arrested twice and he was asked about us and where we are living.

    ·My elder brother was at work when the authorities came and harassed him about our whereabouts. The employer has told him not to come to work. We are not calling him anymore due to risk of further harm to him. My life is in danger based on the reported incidents that my brothers have faced as a result of trying to me. There is a real risk of further harm and mistreatment to our entire family if we are forced back to Sri Lanka.

    Do you think the authorities of Sri Lanka can and will protect you if you go back?

    The first and second applicants’ joint response

    ·No. The authorities are the agents of persecution and continue to seek us out. As we are of Tamil ethnicity and suspected of being involved with the LTLE, we would be sought out, persecuted and killed by the Sri Lankan Government.

    Do you think you would be able to relocate within Sri Lanka?

    Response by the first applicant

    ·No, relocation is not an option. The entire county is controlled by the army and CID. We have been suspected of being involved with LTTE and this is recognised as an illegal group in Sri Lanka. No matter where we live in Sri Lanka the authorities will certainly get to know where we are. It is a requirement that Tamils register with the police and always carry our national ID card with us. Without the ID card, we cannot approach GS to register. The authorities will be notified of our location and we face a significant risk of persecution and being executed.

    Response by second applicant

    ·As I have been arrested and escaped, the CID has a file on me. I was made to sign a document while I was blindfolded. After this, I was warned they were going to kill me. I do not know what I signed and worry about the implications. Anywhere in Sri Lanka I will be sought out, not be shown any mercy and will be killed.

1. On the departmental file is a handwritten diagnosis ticket that the first applicant had been admitted into a the [District 1] Hospital [in] May 2009 because of blast injuries to [his] hand, chest and [leg].  and was discharged [in] September 2009. His treatment included the amputation of his [leg] below the knee, physiotherapy and the provision of a prosthesis.

2. On 1 November 2017, the first and second applicants attended an interview to elaborate on their claims as to the reasons they were owed Australia’s protection obligations.

3. On 15 December 2017, a delegate acting on behalf the Minister refused to grant the applicants protection visas.

4. While the delegate accepted the applicants were ethnically Tamil, the accounts of a number of past harm incidents were not found to be credible.

   Merits review

5. On 7 January 2018, the applicants validly applied to have the refusal decision by the delegate reviewed by the Tribunal. A copy of the delegate’s decision record was attached to the application for review.

6. On 8 May 2023, the Tribunal received a submission from the representative along with a request for the Member to have this matter reconstituted to a female Member of the Tribunal as the second applicant was not comfortable discussing certain past harm incidents with a male Member. The submission included a six-page statutory declaration outlining past harm incidents perpetrated against herself, her fragile mental health and the claim their children will face a real chance of persecution or a real risk of significant harm.

7. (The reconstitution request for the matter  was refused.)

8. On 23 May 2023, the Tribunal received a number of documents including:

   ·     The first applicant’s national identity card (NIC) issued in Sri Lanka;

   ·     A photograph indicating the first applicant is carrying a firearm;

   ·     More recent photographs indicating the first applicant has a limb amputated from his [knee] and other injuries; and

   ·     A resubmitted hospital record indicating the applicant was admitted into care in Sri Lanka [in] March 2009 and discharged [in] May 2009. The care appears to include injuries to his hand and chest and the amputation of his [leg] as a result of a ‘multiple bomb blast’.

9. Also attached was a legal submission prepared by the applicants’ representative and a 16 page statutory declaration by the first applicant, in which he abandoned a number of his earlier key claims about being imputed as an LTTE member when he was forced into non-combative activities for a set of new claims indicating he was a member of the LTTE. 

   In the statutory declaration, the first applicant explained his motivation for joining the military wing of the LTTE. Below is an extract:

   33. My family had a history of supporting the LTTE. My father helped them in the war zone areas, building bunkers for civilians and also organised and attended propaganda meetings in [City 1].

   34. In 1996 my family moved to Vanni and we continued our support for the LTTE in Vanni. I have [number] brothers and [number] sisters. One of my brothers moved to [Country 3] in 1991 but the others all supported the LTTE. They Used to take pan in the civil protection forces and train civilians on how to protect themselves in aerial bombings and other attacks.

   35.I was the only member of my family to join the LTTE to fight.

   36 I joined the LTTE in the middle Of the year 2000 when I was [age] years old. I joined without my parents knowing. I knew that my parents would say "no" out of fear of me being killed in fighting. But I was ready to fight I saw it as my duty. At that time [only knew my area — I knew nothing of the outside world. All I had witnessed was Tamils being killed around me. I saw babies dying in the bombings. I believed in a separate and independent state for Tamils,

   37. I still believe in this. But I do not believe in war to achieve this I believe in a political solution with international support I am still proud of the LTTE and my service to the LTTE. The only viable organisation that existed to protect Tamils was the LTTE. Many members fought and died to protect Tamil people.

   38 On the day I joined I went to the LTTE's local political office, gave my name and said I wanted to join. At the time many of my friends had also joined. I was taken to [a named] camp, in [named] Division in [District 2].

   39. I was given LTTE name "[Alias 1]".

   40.I underwent physical training for 3 months. A typical day involved us waking up at 4am at the call of a whistle. In the training ground everybody had a training position and on waking up we would go to our position, dressed and ready. We were also given a piece of wood in place of a rifle and had to be in our place, in position. The Master would come and check we were all in place.

10. This new statement of claims went on to describe in much detail various fighting and injuries he had encountered, until he re-joined his wife in early 2009. Below is an extract of his injuries:

    75. Among all this, on [date] our son born in [named] school which had been converted to [a] hospital as the [actual] Hospital had been captured by the army. Before we entered the hospital I removed my uniform and wore civilian clothes, My wife delivered the baby and within hours we had to leave too many people were there for their Injuries and we could not stay there for long.

    76. From the time we left the hospital we were constantly moving to avoid shelling by the army. We were in a convoy of thousands of people moving towards any safety from the shelling. We went through [location] and over the next 10 days were on the move until we got to [Location 1], in [District 3]. The SLA was using phosphorous and napalm bombs against the people thousands of people were there. By this time all communication with high command had ceased were as it was impossible to communicate Only the forces on the battlefront were fighting. I was responsible for the civilians and my family,

    77. On [date] March 2009 my father and my brother's wife and their two children died in a shelling attack in [Location 1]. The shelling was constant -- day and night.

    78. On [date] March 2009 my wife and I were injured. My wife was seriously injured in her back and I was injured on my right leg. My leg was blown apart. I was bleeding heavily but there was no medical treatment. I used a cloth to tie around my leg. My wife was paralysed for a time after the attack. The army continued to shell a hospital that had been set up to treat the injured and the injured were also killed. The Red Cross then arranged a ship to get the injured out. We were taken on a ship to Trincomalee.

    79. After we were transferred, we lost contact with my brother [Mr E]. To this day have not heard from him. My mother still searches from him through the Missing Persons office in Sri Lanka. I do not believe he survived the war.

    80. From there, on [date] March 2009 I was taken to [Hospital 2] with my family. I was escorted by the army into the hospital as the army had a cheek post and recorded the details of the patients admitted for treatment. I had surgery at the hospital and my leg below my [knee] was amputated. We were at the hospital until the end of January 2010.

    81. During my time in the hospital I was questioned many times. I was asked by different CID officers who conducted daily checks what happened to me, Some of the hospital workers told me that the names of these officers were [Mr F] and [Mr G] I told the CID I was caught up in shelling with civilians. I do not know whether they believed me or not. I was constantly afraid I would be sent to rehabilitation. Over time as I slowly recovered this became my fear as many people were being sent to rehabilitation.

11. The first applicant also provided an updated account of being abducted and detained by the by authorities in Sri Lanka, and how he escaped the Sri Lankan military. Below is an extract from the 21 May 2023 statutory declaration:

    85. After our release in January 2011 we returned to our home in [Location 2], [District 1].

    86. I started working in a [shop] for a few hours a day. I could not work full time because I could not stand for long.

    87. About two months later when I was at work a grey van came to the shop. It was evening time. Two men got out and came towards me. they were in civilian clothes. I did not know them. They grabbed me and threw me in the van. Inside the van there were other people. They were in army green.

    88. They removed my prosthetic in the van. Then they blindfolded me and tied my hands. I am told that in my 2016 Statement it says that this happened in the camp. This is not correct

    89. We my drove for a while and then the van stopped and I was led somewhere. Then blindfold was removed. I was inside somewhere but I did not know where I was. Later when I was released I saw I had been taken to what I believe was a makeshift camp they had set up and kept in an old building within the camp.

    90. My CID and SLA interrogated me during the time I was held. They told me in broken Tamil I was in the LTTE and my team was responsible for the death of [Officer H]. They said "your team did it." They said they knew who I was - a [Rank 1] and team leader and the one who killed [Officer H]. [[Officer H] had been killed by the LTTE in November 2008 when the applicant had been a member of the LTTE’s stealth unit in the jungle of LTTE controlled [Town 1] as outlined in parapgraphs 67-71] – added by Tribunal] I denied this and told them they had misidentified me. They did not believe me and kept repeating this to me. Because they did not speak fluent Tamil I knew that they were CID and SLA. They took turns to hit me. They stomped on my good leg. They beat me above where my leg bad been amputated. I was screaming from the pain but they took turns to beat me.

    [Paragraphs 91 to 97 outlined the torture the first applicant claimed to have endured.]

    96. After name a was few days there was a fluent Tamil speaker among them who told me his name was [Mr C]. He told me he was the EPDP leader in [District 1]. He told me that the plan was for them to kill me. He said "you killed [Officer H] - they will kill you for this. Try and get out of here.'

    97. He gave me water and a potato to eat after a few days.

    98. Then be said “if you want to get out you have to pay them money.” I gave the guy the address to my house and said to make contact with my wife and ask for the money.

    99. In my 2016 Statement I am told it says my wife had come looking for me but the CID denied I was in their custody. This is not correct. My wife did not come to the camp because she could not have known where I was. After I was released and we spoke she told me that during the time I went missing she went to the army camp in the village to try and find out where I was.

    100. The statement also says gave my wife's telephone number to [Mr C]. This is not correct. I gave him my address.

    101. Soon after he returned and told me that the money was arranged and he also told me how I would be released. I asked for him to return my prosthetic but he said he could not because the CID had it. He said he would open one area of the mesh fence surrounding the camp and I would have to crawl out. He told me the location where my wife would be waiting for me on [the named] Road, i told him to tell my wife to bring the spare leg,

    102. On the day I was released I crawled from the camp to the spot where the fence had been cut and from there to the place where I was told my wife would be waiting. Because I had been jungle trained I could do but it took a few hours to crawl a short distance. I had been given little food and water but I was more afraid of being found by the army.

12. The first applicant also claimed that he knew his bodyguard, [Mr I], had betrayed him because ‘[Mr C]’ told him that [Mr I] was with the Karuna and had told the authorities he had not only been a leader in the military unit that killed [Officer H] but the first applicant had personally killed [Officer H]. He claimed only [Mr I] had escaped his military unit by collaborating with ex-LTTE members of Karuna Group based in Eastern Province as the others had otherwise died during the war or were captured.

13. As mentioned above, the first and second applicants attended a scheduled hearing on 30 May 2023 to give evidence and present arguments in relation to their protection claims.

14. After reflecting on the matter, the Tribunal contacted the representative on 31 May 2023 to inform the parties that no further submissions were required.

15. There are no non-disclosure certificates on the applicants’ Departmental and Tribunal files. 

    Country information: Sri Lanka

16. It is critical to the applicants claims that the first applicant, who is ethnically Tamil, was a member of a militant group that emerged to advance the cause of Tamil statehood. The most prominent of these, the Liberation Tigers of Tamil Eelam (LTTE, commonly known as the Tamil Tigers), formed in 1976 and launched an armed insurgency against the Sri Lankan state in 1983. Government forces re-took the north and east of the country from 2007-09, culminating in the military defeat of the LTTE in May 2009. The UN and human rights organisations documented serious violations in the final stages of the war when Mahinda Rajapaksa was President, during which up to 40,000 civilians may have been killed. In total, Sri Lanka’s 26-year civil war is estimated to have claimed 100,000 lives and displaced over 900,000 people. Civil society groups and NGOs have criticised the Rajapaksas for enabling and covering up alleged war crimes and atrocities against civilians.

17. Below is an extract from the most recent DFAT country information report on Sri Lanka – published 21 December 2021 – about the situation for former LTTE combatants:

    High-profile former LTTE members

    3.47 ‘High-profile’ former LTTE members are individuals who held senior positions in the LTTE’s military wing and civilian administration. The LTTE’s former leadership face the highest risk of monitoring, arrest, detention or prosecution, regardless of whether they performed a combat or civilian role during the war. Although most of the LTTE’s leadership died during the war, a number surrendered or were captured and sent to rehabilitation centres or prosecuted/detained. Some former leaders may have left Sri Lanka before, during or after the war (see Former LTTE members living outside Sri Lanka). Others considered ‘high-profile’ include individuals suspected of terrorist or serious criminal offences during the war, or of providing weapons or explosives to the LTTE. Other former leaders, such as Karuna Amman (previously a leader of the TMVP, now a member of the Sri Lankan Freedom Party (SLFP), part of the President’s ruling coalition), defected and are allied with the Government.

    3.48 DFAT assesses that the number of high-profile former LTTE members living in Sri Lanka is small and that the vast majority would already have come to the attention of the authorities. DFAT also assesses that any remaining high-profile former LTTE members who came to the attention of the authorities would likely be arrested, detained and prosecuted through Sri Lanka’s criminal courts and, once they had completed their prison sentences, be subjected to some form of rehabilitation. The average judicial process in Sri Lanka, including appeal, is protracted (see Judiciary). High-profile former LTTE members would likely continue to be monitored by the Sri Lankan authorities following their release from prison and completion of any rehabilitation process.

    Low-profile former LTTE members

    3.49 ‘Low-profile’ former LTTE members include former combatants, those employed in administrative or other roles, and those who may have provided a high level of non-military support to the LTTE during the war. DFAT assesses that, although the great majority of low-profile former LTTE members have been released following their rehabilitation, any low-profile former LTTE members who came to the attention of the Sri Lankan authorities now, particularly if suspected of having a combat function during the war, would likely be detained and may be sent for rehabilitation. Following their release from rehabilitation, a low-profile former LTTE member might be monitored but would generally not be prosecuted. Monitoring of former LTTE members

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

    3.51 Local sources also claimed the authorities – usually undercover police officers or intelligence agents – sometimes used more subtle methods, for example inviting individuals to tea in public places and asking questions about their activities. Such questioning did not involve violence. Telephone calls were also common. Some sources claimed questioning was sometimes indirect and involved questioning the neighbours of suspected former LTTE members. Sources told DFAT that monitoring of former LTTE members was less extensive in the Eastern Province, insofar as many there had defected during the latter years of the war and aligned with the Government as part of the Karuna Group/TMVP (see Security situation in the north and east). 3.52 DFAT assesses that, while they may be monitored, Tamils with former links to the LTTE, and who are not politically active, are generally able to lead their lives without concern for their security as a result of their past association with the LTTE.

    ASSESSMENT OF CLAIMS AND FINDINGS

    The applicants’ identities and their country of reference

18. The Tribunal notes that the delegate accepted that the first and second applicant destroyed or disposed of their own passports and the passort pertaining to the third applicant when the people smuggling agent confiscated their Sri Lankan passports as they arrived in [Country 1]. Later satisfactory documentary evidence of their identities and nationality were forwarded to the Department.  The delegate did not make any adverse findings about their identities under 91WA of the Act.

19. For the same reasons as the delegate, the Tribunal is satisfied the identities as claimed in this visa application are genuine and is satisfied that s 91WA (1) is not applicable in this matter.

20. On the basis of this evidence and with no evidence to the contrary, the Tribunal finds the first, second and third applicants are nationals of Sri Lanka for the purposes of the refugee criteria under section 5H(1) or section 36(2)(a). Furthermore, the Tribunal finds that Sri Lanka is the first, second and third applicants’ receiving country for the other criteria under section 36(2).

21. The fourth and fifth applicants were both born in Australia to the first and second applicants as their biological parents. At the time of their birth, neither of the parents were Australian citizens, eligible New Zealand citizens or holders of permanent Australian visa. Accordingly, the fourth and fifth applicants were not eligible for Australian citizenship.

22. The fourth and fifth applicants do not hold any existing documents indicating that they are currently citizens of Sri Lanka, although their birth certificates issued in Australia indicate their parents to be citizens of Sri Lanka. The applicants’ representative had argued that the fourth and fifth applicants are to be considered ‘de facto stateless’ because they were not registered within twelve months of their birth, and that in returning to Sri Lanka they would incur ‘an extra fee’ and the discretionary action to register the fourth and fifth applicants as citizens of Sri Lanka.

23. The Tribunal accepts these applicants do not hold a current citizenship of Sri Lanka. However, none of the applicants have a claim that some other third country is a relevant country of nationality or country of former habitual residence to consider in this matter.

1. Should the fourth and fifth applicants travel to Sri Lanka with the other applicants, either voluntarily or involuntarily on travel documents issued by the Australian authorities, the Tribunal does not foresee any significant difficulties with them availing themselves in registering their identities in Sri Lanka and obtaining Sri Lankan citizenship or being denied citizenship, and none that amount to a real chance of serious harm or a real risk of significant harm on the basis of a lack of nationality.

2. Therefore, under the circumstances, it is the correct and preferrable approach for the Tribunal to consider that Sri Lanka is the country of reference for the purposes of assessing any of their claims and circumstances against refugee criteria and other criteria under section 36(2) in relation to the fourth and fifth applicants.

   Third country protection

3. There is no evidence before me to suggest that the claimants have the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act

   Members of the same family unit

4. As mentioned above, the first and second applicants claimed to be in a married relationship and that the other applicants are their biological children and dependants. The submitted marriage and birth certificates support these claims. The Tribunal notes the delegate made a finding at the time of decision in the refusal decision that each of the second applicant and the applicants aged under 18 were members of the same family unit as the first applicant.

5. Noting that the third, fourth and fifth applicants remain under the age of 18 and a lack of countervailing information, the Tribunal accepts that each of the applicants in this matter are members of the same family unit for the purposes of regulation 1.03.

6. Each of applicants accordingly may be eligible to satisfy either s 36(2)(b)(i) or s 36(2)(c)(i) on the basis of membership of the same family as someone who satisfies either s 36(2)(a) or s 36(2)(aa).

   Credibility concerns

7. It is rarely appropriate to speak in terms of onus of proof in relation to administrative decision making: see Nagalingam v MILGEA & Anor (1992) 38 FCR 191 and McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357; 6 ALD 6 at 10. The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraphs 196–197 and 203–204 recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt. Given the particular problems of proof faced by applicants a liberal attitude on the part of the decision maker is called for in assessing refugee status and complementary protection obligations.

8. However, decision makers are not required to accept uncritically any or all allegations made by an applicant. Moreover, decision makers are not required to have rebutting evidence available before they can find that a particular factual assertion by an applicant has not been made out. In addition, the Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

9. In the applicant’s 21 May 2023 statutory declaration, the first applicant admitted to providing a false statement for the following reasons:

   13. When I arrived in Australia and was interviewed by the immigration officer I did not talk everything that had happened to me in Sri Lanka. I did not talk about my involvement with the LTTE. I did not disclose that I had been a member of the LTTE for 9 years and had been promoted to [Rank 1] by the end of the war. I was in the senior command of the LTTE and part of the elite jungle force. I was scared to talk about my involvement fearing the Australian government would send me back to Sri Lanka. I was afraid that the government considered the LTTE a terrorist organisation and would see me as a terrorist. I was afraid that if I spoke about my involvement I would spend many years in a detention camp and then be sent back to Sri Lanka.

   […] […]

   22. I am disclosing the truth now given the legal advice I have received about my claims and I believe it is the only way I can protect my wife and family from another refusal and being sent back to Sri Lanka where our lives are at risk.

   23. My wife and I have lived in Australia for 12 years with our children. I cannot risk being refused again by remaining silent about my role in the LTTE, and the serious harm I experienced in Sri Lanka for this reason.

10. As discussed in the hearing, it is open to any decision maker when presented with earlier statements and evidence that the applicants admitted having largely fabricated claims in favour of a new set of dispositive claims to make overall adverse credibility findings that the applicants are not witnesses of truth and that their claims lack overall credibility for the purposes of determining refugee status or assessing whether the Act’s complementary protection provisions are applicable.

11. The Tribunal is mindful that it should not make overly strident adverse credibility findings. The Tribunal spent more than five hours asking robust questions about their new claims arising from very detailed statements. The Tribunal is satisfied that most of the applicant’s dispositive claims are credible. Nonetheless, it has identified a limited number of claims it has assessed as lacking in plausibility and credibility. In this regard, it is understandable that applicants for Australia’s protection obligations embellish or exaggerate otherwise credible claims.

12. Despite these embellishments, the Tribunal has accepted critical claims that the first applicant had been an LTTE combatant in LTTE controlled areas of Sri Lanka’s Northern Province. In reaching favourable findings that the first and second applicants are refugees has largely arisen from the first applicant’s obvious amputation and the available country information about the treatment of Tamils as forced returnees who are subject to otherwise routine questioning and further investigations and not their habitual approach to providing falsehoods to the Australian authorities.

    Does the first applicant meet the refugee criteria?  

13. The Tribunal accepts the first applicant was born in [City 1] in Sri Lanka’s Northern Province and that he is of Tamil ethnicity. The applicant provided medical and photographic evidence that he had several injuries sustained during Sri Lanka’s civil war. These injuries included the amputation of [leg] from the knee as a result of an explosive shelling that had been conducted the Sri Lankan armed forces in April 2009.

14. By way of summary, between the first applicant’s arrival in Australia in 2012 and May 2023, the first applicant had claimed to hold a well-founded fear of persecution based on a number of cumulative aspects: his Tamil ethnicity, his former residence in LTTE controlled areas of Northern Province, his amputation and other injuries imputing him as a former combatant. In particular the first applicant claimed explicitly only to have been forcibly recruited to undertake logistical and non-combatant roles for the LTTE under areas of its control and never to have been a combatant but feared that on arrival or in the community he will be imputed as a former senior member of the LTTE military or political wing and would be subject to long term detention and torture.

15. According to the first applicant’s May 2023 written statement, the applicant provided a new set of claims that he joined the LTTE as a combatant in or around 2000 when he was [age] years of age.

16. His stated reasons included because he was ready to fight; because his father and family had been supportive of Tamil independence and the LTTE and because he had witnessed the killings of Tamils by the Sri Lankan armed forces. He also said that he knew nothing or very little of the outside world. The applicant also claimed that his voluntary enlistment had been against the wishes of his father and that he was proud to belong to the LTTE as the only viable organisation that existed to protect Tamils and his service to it as a combatant. During the scheduled hearing, the Tribunal enquired into the reasons he joined the LTTE as a combatant and why he did not move to another part country or depart Sri Lanka altogether as his older brother had in 1991, as well as defying his father’s expressed opposition to him joining. The applicant initially prevaricated claiming he had no option as he was in a predominately LTTE controlled area. The Tribunal reminded him that his older brother had migrated to Europe, and he did have other options, including moving to Sri Lanka’s capital city, Colombo, which has a large Tamil speaking community, and that his stated claims were that he voluntarily joined the LTTE. The applicant’s oral evidence then outlined the reasons which closely aligned with his recent written claims as to why he enlisted into the LTTE and his commitment to a separate and independent state for Tamils.

17. The Tribunal enquired into the first applicant’s understanding about the LTTE’s international reputation given he claimed to be proud of his service to an organisation perceived to be a terrorist outfit. Specifically, the Tribunal raised whether he was proud of the 90 or so civilians killed by the LTTE in the 1996 Reserve Bank bombing in Colombo,[1] or the role in the LTTE using child soldiers or suicide bombings. The applicant insisted that his role in the LTTE had been limited as a member of the military wing who defended civilians and ensured food and other supplies reached LTTE controlled areas. He nevertheless explained that the LTTE’s political wing undertook difficult decisions to defend Tamil civilians from the pitiless and ruthless armed forces and the Sinhala-dominated government of Sri Lanka to achieve its goals of an independent Tamil Eelam.    

    [1] Colombo Central Bank bombing, Wikipedia, >

    Throughout the hearing, the first applicant demonstrated a good deal knowledge about combatant training, weapons, aspects of LTTE military life such as recalling the Tiger oath and ‘national anthem’ and key figures, battles and events. He recalled his Tiger’s nom de guerre had been ‘[Alias 1]”, that he had been promoted from an ordinary enlisted soldier to the rank of [Rank 2] and later [Rank 1]; that the commander of his unit or regiment had been [Lt Colonel J]. The first applicant’s oral evidence was commensurate with his written claims to be a LTTE combatant and the available country information about LTTE military life.  

18. By way of summary, the Tribunal accepts the following about the first applicant’s claim to be a combatant for the LTTE to be generally consistently and persuasive under robust questioning as outlined below:

    ·     In 2000, the first applicant voluntarily joined the LTTE’s military wing and was formally trained by the LTTE military wing for about six months;

    ·     In 2001, the first applicant was then assigned to a jungle fighting unit in LTTE controlled areas in forested areas of [specified] districts for around six months;

    ·     After training, the first applicant demonstrated the skills and leadership qualities to be appointed as a team leader of about [number] cadres;

    ·     Between 2002 and 2006, there was ceasefire. During this period the applicant remained in the LTTE controlled areas to protect civilians and receive new recruits;

    ·     When hostilities resumed in July 2006, the applicant was in [District 4] and was promoted to the rank of [Rank 2];

    ·     The first applicant was injured in March 2007 when his unit was advancing towards [District 5]. The injury included a bullet travelling through his [thigh] without injuring his bone;

    ·     After convalescence, the first applicant was promoted from [Rank 2] to [Rank 1] and was responsible for a team of about [number] elite combatants whose expertise was in jungle warfare. They were sent to [District 2] to defend LTTE controlled areas from the Sri Lankan army’s encroachment and attacks on civilians;

    ·     This fighting took place over many months; and the applicant’s low left leg was injured (albeit not seriously);

    ·     In November 2008, the Sri Lankan army’s covert special operations [unit], had been advancing towards [Town 1] and the first applicant’s military unit was stationed in the [District 3];

    ·     During this battle, the first applicant’s unit had been ambushed and fighting had been fierce.

    ·     The [thumb] of the applicant was injured to the extent that he was not able to fight.

    ·     In January 2009, the Sri Lankan armed forces were advancing significantly into LTTE controlled areas and his role shifted towards assisting to evacuate civilians to safety and injured combatants to hospitals;

    ·     The first applicant then left the battlefield and met up with the second applicant who was giving birth to their first child (the third applicant) at a makeshift hospital in [District 2] – now controlled by the Sri Lankan authorities, while in civilian clothes before being discharged and travelling to LTTE controlled [Location 1] in [District 3].

19. (The only documentary evidence the first applicant provided was a photograph of himself with another man. According to the written statement from May 2023, the photograph was taken at [named] camp by family members visiting the first applicant after his March 2007 injury in [Village 1] and the other man was the first applicant’s ‘bodyguard’, named [Mr I] who was holding an AK rifle. As discussed in the hearing, neither the first applicant’s clothes or footwear indicate they were dressed for combat or were ready for combat. Nor was there anything they were wearing, such as insignia, to indicate they were in the military wing of the LTTE. Indeed, the photograph resembled two men holding weapons in a manner more consistent with tourists, than combatants, even combatants who were experiencing a degree of convalescence or rest between military engagements, as claimed. Although the Tribunal accepts the first applicant to be a combatant of the LTTE as claims, it is unable to place any significance on this photograph as evidence of the first applicant’s participation in the LTTE.)

20. The Tribunal acknowledges that the first applicant provided an oral account more or less detailed as his written statement from 21 May 2023.   It accepts the basic thrust of the first applicant’s more recent claims to be a combatant with officer rank in the LTTE and that he was not forced into non-combatant roles as outlined in his earlier claims.

21. However, as foreshadowed above, the Tribunal has considered a number of events after January 2009 and moving to [Location 1] as lacking in credibility.

22. The first applicant also made claims that his father and one of his brothers in law had died in the same shelling attacks two days before this. Although there is documentary evidence for these deaths, on balance, the Tribunal accepts this. On the other hand, the first applicant provided an inconsistent account about his brother, [Mr E], being missing or the suggestion he was abducted by the authorities In his most recent written claims it was argued that he was registered as a missing persons; however, in the hearing, when the Tribunal asked for some documentary evidence that his brother had been registered with an NGO or UN as a missing or disappeared persons, the first applicant claimed that his mother said he had not and evasively answered that his mother approached a parliamentarian. Country information indicates that Sri Lanka has the world’s second highest cases registered with the United Nations’ Work Group on Enforced or Involuntary Disappearances and has had an Office on Missing Persons since early 2017.[2] In not recalling this specific written claim about formally participating with the Office on Missing Persons, the first applicant invited the Tribunal apprehend that this specific claim about the applicant’s brother and his disappearance since March 2019 is not credible.

    [2] Families of Sri Lanka’s Forcibly Disappeared Denied Justice, By Meenakshi Ganguly, Human Rights Watch, 25 August 2021,>

    The Tribunal has also considered the first applicant’s written and oral evidence about leaving his country of origin on a fraudulently obtained passport through a third party, and that he had to do this as he had escaped the custody and detention of the authorities after days of interrogation and maltreatment. During the hearing, the Tribunal asked if he recalled looking at his passport, to which the first applicant responded he recalled it had his photograph and name. Given the first applicant admits the passport had his actual identity on it, it is not plausible that he had fraudulently obtained an official travel document from the Sri Lanka authorities.

23. It follows from this adverse credibility findings, that if the first applicant had not credibly concealed his identity on departure, then it invites very serious credibility concerns that the first applicant was not detained and tortured and that he and the second applicant did not arrange to him escape by corruptly bribing any one of the first applicant’s interrogators or witnesses of those interrogations to escape custody, as variously claimed in both the first and second applicant’s earlier and later written claims. It also casts doubts about the applicants’ auxiliary claims, including the specific claim regarding the first applicant’s former comrade in arms being an informant against him as he joined a collaborating Tamil organisation. As discussed in the hearing, the Tribunal also detected from the elaboration of these claims a strong degree of being far-fetched and fanciful.

24. As mentioned above, it understandable the applicants sought to both conceal the first applicant’s status as a former LTTE combatant and to exaggerate or embellish his most recent set of claims. It is the Tribunal’s assessment that the first and second applicants have embellished the following key aspects advanced about the first applicant’s past circumstances in his most recent statement and in his oral evidence at the Tribunal and does not accept them to be credible or reliable: 

    ·     That the first applicant’s brother had been killed or was involuntarily disappeared or registered as a missing person or that his mother continues to search him;  

    ·     That the first applicant was arbitrarily abducted by the CID and collaborating members of the Tamil community because he had been identified as a senior LTTE combatant by a fellow former LTTE combatant;

    ·     That the first applicant was maltreated and tortured during his abduction in the manner claimed; 

    ·     That a Tamil man who was collaborating with the Sri Lankan authorities was present while the applicant was detained and tortured;

    ·     That the first applicant had been informed during his abduction that he was to be killed because he had been a member of an LTTE unit who killed a decorated Sri Lankan Army officer in [specified] Unit;

    ·     That the first and second applicant sold property and jewellery in order to bribe a key person who arranged for the first applicant to escape;   

    ·     That the first, second and third applicants fraudulently obtained Sri Lankan passports or that a third party or agent made corrupt arrangements for the applicants to  depart Sri Lanka for [Country 1] to evade the authorities identifying the first applicant as a person of interest.

25. In making these adverse findings, that is not to suggest the first and second applicant did not hold urgent or deep or genuine personally held fears of persecution on the basis of the first applicant’s past as a former combatant of the LTTE, or that they do not continue to hold these personally held fears, right up to the time of making this decision.

1. The first applicant had, after all, been living in a highly militarised area of Sri Lanka’s Northern Province. During the immediate post conflict period, SLA checkpoints and the government registration, monitoring and surveillance of Tamils in militarised areas were commonly enforced by the Sri Lankan army, police and intelligence officials. This was all part of the government’s efforts to control Tamil communities for fear of Tamil separatist movements re-emerging. A febrility was added to this already unpredictable environment as many former LTTE combatants who had yet to be subject to ‘rehabilitation’ feared being informed upon based on confessions obtained under duress, either through routine surveillance or by informants who were former LTTE combatants who joined the Karuna group (or other collaborating Tamil-led political organisations) or by those who simply wished to ingratiate themselves towards the victorious but largely Sinhalese authorities living in former LTTE controlled areas.  

2. The fact is that the applicant left Sri Lanka almost 11 years ago, and there have been significant improvements for Tamils (including former LTTE members and Tamils in Sri Lanka’s Tamil dominated Northern and Eastern Provinces) since then. For instance, DFAT reports that the Northern and Eastern Provinces which had been LTTE controlled have experienced a degree of demilitarisation. The Government no longer restricts travel to the north and east. It removed security checkpoints on major roads in 2015, although some were re-established following the 2019 Easter Sunday terrorist attacks. Since the civil war ended, there have been several national and provincial elections, different presidents from different political parties and changing political allegiances between parliamentarians. In 2019, the election of Gotabaya Rajapaksa, who has been subject to allegations of war crimes and human rights violations, reinstated some of the military’s forays into civilian life – especially in the Tamil dominated north and east of Sri Lanka. In 2022, Rajapaksa and the ruling party with which he was associated, lost power during a simultaneous economic and political crisis. Sri Lankan politics remains Sinhala dominated and there are some notable instances whereby some of the more strident nationalistic and Buddhist political actors have singled out religious and ethnic minorities. YetDFAT assesses there is no official discrimination on the basis of ethnicity in public sector employment. Rather, Tamils’ under-representation is largely the result of language constraints and disrupted education because of the war.

3. Given this passage of time since the end of Sri Lanka’s war in 2009, the question arises as to whether the authorities will continue to have an adverse interest in the first applicant if the applicants returns to Sri Lanka as failed asylum seekers or forced returnees.  If so, the question then arises as to whether or not this would result in the first applicant facing a real chance of serious harm at the hands of the authorities for one of the reasons mentioned on s 5J(1)(a) on return to Sri Lanka.  The Tribunal has considered the first applicant’s (and his representative’s) submissions on this matter as well as independent country information about the situation in Sri Lanka for someone with the first applicant’s past experiences and obvious circumstances as an amputee, to determine if his fears as a former LTTE member (and relative of a former LTTE member), among other things, on return to Sri Lanka in the foreseeable future are well founded.

4. The Tribunal notes that the delegate accepted the first applicant’s amputation, his ethnicity and his former residency in the Northern Province will trigger the authorities to apprehend and question him. However the delegate went on further to find that this lack of adverse attention from the authorities on departure strongly indicated he was not a person of interest and that he will not have a real chance of becoming a person of interest on return as a failed asylum seeker. In making that finding the delegate, like the Tribunal, did not accept the applicant fraudulently obtained passports and corruptly arranged to depart Colombo’s international airport.

5. The Tribunal has considered the following aspects about the country information somewhat differently. In terms of treatment of former LTTE members, DFAT states that since the end of the conflict the government has managed a large-scale rehabilitation program for former LTTE members; at time of publication only one rehabilitation centre remained operational (in Vavuniya, Northern Province);[3] that DFAT was not aware of rehabilitation being imposed on any former LTTE members who have returned from Australia;[4] and they assess that a non-rehabilitated returnee with links to the LTTE, particularly high-level links, could be subjected to a rehabilitation process should they return to Sri Lanka.[5]

   [3] DFAT Country Information Report, Sri Lanka, 23 December 2021 at 3.62

   [4] Ibid at 3.67

   [5] Ibid at 3.67

6. DFAT state that the LTTE’s former leadership face the highest risk of monitoring, arrest, detention or prosecution, regardless of whether they performed in a combat or civilian role during the conflict.  According to DFAT, others considered ‘high profile’ include former members suspected of terrorist or serious criminal offences during the conflict, or providing weapons or explosives to the LTTE.  DFAT reports that the military killed three suspected LTTE members on 11 April 2014, following the alleged positioning of pro-LTTE flyers in Kilinochchi, but are not aware of similar cases since.  DFAT identifies ‘low profile’ members to include former combatants, those employed in administrative or other roles and those who may have provided a high level of non-military support to the LTTE during the conflict.  They assess that such low-profile members, if they come to the authorities’ attention, would be detained, and may be sent to the remaining rehabilitation centre and may be monitored thereafter but generally are not prosecuted. DFAT also assesses that under the current government (at the time of publication), while they may be monitored, Tamils with links to the LTTE are generally able to lead their lives without concern for their security as a result of their past association with the LTTE.

7. Whilst DFAT assess that the LTTE no longer exists as an organised force in Sri Lanka and any former LTTE members within the country would have only minimal capacity to exert influence on Sri Lankans, they state that the Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country. DFAT states:

   According to expert testimony provided to a 2013 hearing of the UK’s Upper Tribunal on Immigration and Asylum, Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases. DFAT understands these databases remain active. ‘Stop’ lists include names of those individuals that have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals that the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities. The UK Home Office reported in June 2017 that the ‘watch list’ comprised minor offenders and former LTTE cadres. DFAT assesses those on a watch list are likely to be monitored.

8. The Tribunal also notes DFAT’s information about returnees being routinely interviewed at the airport on arrival by the Immigration and Emigration Department, the State Intelligence Service, the airport CID and at times the Terrorism Investigation Department.  These processes involve police and security clearances, including checks with the person’s local police station and may take several hours. Such country information before the Tribunal does not necessarily indicate that all Tamils from the north or formerly LTTE-controlled areas or all failed asylum seekers/returnees face a real chance of serious harm, and the Tribunal does not accept that the applicant faces a real chance of serious harm for these reasons. Independent sources further state that past LTTE connection or involvement does not give rise to such a risk, unless that person had or was perceived to have a significant role in post-conflict Tamil separatism or was otherwise of interest to the authorities.[6]

   [6] UK Home Office, Country Information and Guidance, Sri Lanka: Tamil separatism, March 2017; GJ & Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC)

9. In the applicant’s case, his amputation is saliently obvious. As discussed in the hearing, his physical disability through amputation in combination with him being Tamil from the Northern Province and as a failed asylum seeker for a sustained period, will mean he will face a real chance of him being taken for questioning and further investigations about him being from LTTE controlled areas of Sri Lanka’s Northern Province. This questioning, based on the adverse credibility finding mentioned above, is without him or his family having claimed to have unlawfully departed Sri Lanka on fraudulent passports.  Neither is it attributed to being subject to any outstanding summons.

10. Relevantly DFAT advise as follows:

    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.[7]

    [7] Ibid at 5.33

11. Therefore, the applicant is likely to be detained and questioned about his role with the LTTE. Such questioning then has a real chance of the security forces undertaking thorough investigations, the applicant has a real chance of custody being sustained for a period longer than a short period of time, as is usual with, say, those fined for offences against Sri Lanka’s Immigrants and Emigrants Act for departing Sri Lanka without lawful permission.

12. A further question arises as to the kind of conditions the applicant is likely to encounter while in longer term custody.  DFAT is unable to verify whether monitoring, where it occurs, is specific to former LTTE cadres. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had no protection concerns and had not experienced harassment by the authorities, nor received monitoring visits, but DFAT cannot determine if this is the case for all such returnees.

13. However other country information, including as follows, indicates that there remains a real risk of ill treatment or harm requiring international protection.  This includes comments made by the UK Upper Tribunal regarding persons considered being at risk of harm in Sri Lanka, that ‘If a person is detained by the Sri Lankan security services there remain a real risk of ill-treatment or harm requiring international protection’.[8]

    [8] United Kingdom Upper Tribunal (Immigration and Asylum Chamber) Appeal No: AA/12647/2011

14. In the first applicant’s case, it is claimed that he held a sufficiently senior ranked role as a [Rank 1] in a division of the military wing of the LTTE. The Tribunal accepts that. The country information supports the first applicant’s apprehensions.

15. Although he had evaded rehabilitation prior to his departure, the Tribunal cannot discount there is a real chance that investigations into the first applicant will not reveal he held anti-regime political opinions, but he was a combatant LTTE with officer rank.  His history as a militant has a real chance of being discovered when the authorities make enquires about him to members of his extended family or his wife’s family, former rehabilitated cadres, detained former cadres or former soldiers who collaborated with the Sri Lankan authorities. The US State Department's Country Reports on Human Rights Practices for 2013 states that the Civil Defense Force (CDF), formed in 2012 and which employs some former LTTE cadres, has been accused by civil society members of being "an avenue for the government to continue its surveillance and intimidation of the Tamil population" (US 27 Feb. 2014). The Research Directorate at the Immigration and Refugee Board of Canada (Commission de l’immigration et du statut de réfugé de Canada) issued country information on 11 February 2015 indicating the authorities have a network of informants.

    [O]ne of the government's most widely used practices is using Tamil informants, many of whom are former LTTE combatants who now work with the government. ... There is, in essence, a network of spies who help the government in monitoring Tamils in the North and East. Some are Tamil, others not. (8 Jan. 2015)

16. In September 2022, the United Nations’ Office of the High Commissioner for Human Rights (OHCHR) said it continues to receive reports of surveillance, intimidation and harassment of various groups in the north and east, including journalists, human rights defenders, families of the disappeared and persons involved in memorialisation initiatives.[9]  The US State Department Human Rights report for 2022, in relation to Sri Lanka, noted: ‘Throughout the country, but especially in the north and east, Tamils reported security forces regularly monitored and harassed members of their community, especially activists, journalists, and NGO staff and former or suspected former LTTE members.[10] In its World Report 2022, Human Rights Watch states that: ‘The government continued to target members of the Tamil and Muslim minority communities using the country’s overbroad counterterrorism law, and policies that threaten religious freedom and minority land rights.[11]

    [9] 'Situation of human rights in Sri Lanka: Comprehensive Report of the United Nations High Commissioner for Human Rights A/HRC/51/5', United Nations Human Rights Council, 6 September 2022, p.7.

    [10] USSD, ‘2021 Country Report on Human Rights Practices: Sri Lanka’, page 38, 12 April 2022.

    [11] Human Rights Watch, ‘Annual report on the human rights situation in 2021’, 13 January 2022.

17. The Tribunal is also concerned that the operation of counter terrorism measures under the Prevention of Terrorism Act (PTA) long after the civil war also raises the chance or risk of longer-term detention and torture to the applicants with the kind of profile that the first applicant holds. 

18. The PTA was enacted as a temporary measure in 1979 to counter separatist insurgencies. It was made permanent in 1982 and remains legally in force. The PTA is not part of regular criminal law and contains special provisions on detention and the admissibility of confessions. The PTA allows arrests for unspecified ‘unlawful activities’, permits detention for up to 18 months without charge and provides that confessions are legally admissible. Prior to the 2019 Easter Sunday terrorist attacks, the PTA was used mainly to target those suspected of involvement with the LTTE. It was used only sporadically between 2016 and April 2019 following the then-government’s commitment to repeal and replace the PTA under HRC Resolution 30/1 (2015). During the civil war, authorities detained more Tamils under the PTA than any other ethnic group. The PTA has been used for many years to detain people in prolonged and often arbitrary detention. According to the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, in his 2017 report, 70 people had been in detention without trial for over five years and 12 had been in detention without trial for over 10 years. According to the HRCSL, as of 31 January 2018, about 15 per cent of PTA suspects had been in detention for 10 to 15 years, and about 41 per cent had been in detention for five to 10 years. As at 2021, many of these detainees are still being held.

19. DFAT is not able to verify the precise number of individuals currently held under the PTA. One local source estimated that 300 Muslims and 60 Tamils are being held under this legislation. A large number of Muslims were detained under the PTA following the 2019 Easter Sunday terrorist attacks. In 2021, the Sri Lankan police were still arresting Muslims in connection to the bombing. For example, in April 2021, opposition MP Rishad Bathiudeen and his brother Riyadh were arrested by CID for allegedly assisting the terrorists responsible for the 2019 Easter Sunday terrorist attacks. The brothers have claimed the arrest was political. The Government has not explained the nature of their alleged connection to the bombing. The brothers have since been released on strict conditions of bail

20. A number of other sources report on the government’s use of the PTA against Tamils and anti-government critics, including a 2021 Freedom House Report referring to Tamils and perceived enemies of the government being detained for up to 18 months without charge.[12] In June 2022 the government announced it had been applying a de facto moratorium on use of the PTA since March 2022, however, in August 2022 three student leaders were detained under the PTA. [13] 

    [12] Freedom House, ‘Freedom in the World 2021’, section F2, 4 March 2021.

    [13] 'Situation of human rights in Sri Lanka: Comprehensive Report of the United Nations High Commissioner for Human Rights A/HRC/51/5', United Nations Human Rights Council, 06 September 2022, p.5.

21. With respect to treatment of those suspected of former LTTE links, DFAT states that while the LTTE was comprehensively defeated, the authorities remain concerned over its potential re-emergence, and about separatist tendencies in general.  According to DFAT:

    …sources report that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members, supporters, and other separatists, including ‘stop’ and ‘watch’ electronic databases. DFAT understands these databases remain active. ‘Stop’ lists include names of those individuals who have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals whom the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities.[14]

    [14] DFAT Country Information Report, Sri Lanka, 23 December 2021 at 3.41.

22. According to DFAT, the International Truth and Justice Project (ITJP), an NGO which documents torture and sexual violence by the security forces in Sri Lanka, claims that, while ex-LTTE cadres exist, they are no longer affiliated in any way with an extant LTTE, and are subject to harassment and discrimination by the government.  Additionally, the ITJP states that the Sri Lankan government may not accept that the LTTE is finished, arresting several Tamils in 2021 under the PTA for alleged LTTE-supportive behaviour.[15]

    [15] Ibid at 3.44.

23. Additionally, the ITJP reports that some Tamils with actual or imputed LTTE links (including those who fought for the LTTE or were part of its civilian administration) continue to report police monitoring and harassment; that multiple sources in the north told DFAT that former LTTE members, including those considered low-profile, are monitored to guard against the LTTE’s re-emergence; and that testimonies provided to the ITJP show that such harassment can include frequent visits by police, visits to family members, threats and seizure of mobile devices.[16] 

    [16] Ibid at 3.50.

100.   Overall DFAT assesses that, while they may be monitored, Tamils with former links to the LTTE, and who are not politically active, are generally able to lead their lives without concern for their security as a result of their past association with the LTTE[17].

[17] Ibid at 3.52.

101.   DFAT noted that in its May 2021 decision on the refugee status of Tamil activists in the United Kingdom (UK), the UK Upper Tribunal found that the then government of Sri Lanka was possessed of a ‘determination to prevent any form of resurgent separatism’.[18]

[18] Ibid at 3.44.

102.   Additionally, Freedom House reported in February 2019 that police and security forces are known to engage in abusive practices, including extrajudicial executions, forced disappearances, custodial rape and torture, all which (they contend) disproportionately affect Tamils.[19]  DFAT also state that local sources, including Tamils, say mistreatment and torture by police continues to occur, but is primarily due to outdated policing methods and is not ethnically-based.  Sources told DFAT that with improvements in police training and monitoring of prisons by the HRC in Sri Lanka, the incidence of mistreatment and torture had contracted in absolute terms, ‘but was still common’.[20]

[19] Freedom House, ‘Freedom in the World 2019 – Sri Lanka’, 4 February 2019,  

[20] DFAT Country Information Report, Sri Lanka, 23 December 2021 at 4.26

103.   Based on the above factors considered cumulatively, taking into account the country information including DFAT’s advice that others considered ‘high profile’ include former LTTE members suspected of providing weapons to the LTTE (among other things), the Tribunal finds that there is a real chance that the applicant would suffer serious harm, as contemplated by sections 91R(1)(b) and 91R(2) of the Act, at the hands of the authorities on return to Sri Lanka in the reasonably foreseeable future.  Further, the Tribunal finds that such serious harm would involve systematic and discriminatory conduct and would be for the essential and significant reason of the applicant’s actual or imputed (anti-government/pro-LTTE) political opinion in combination with his membership of a particular social group, namely, failed asylum seekers of Tamil ethnicity, and that the chances of serious harm are heightened by the first applicant’s amputation indicating a past combative role in the LTTE.

104.   Accordingly, the Tribunal finds that the applicant has a well-founded fear of persecution in Sri Lanka for two or more of the reasons mentioned in s 5J(1), cumulatively considered.

105.   The Tribunal finds that the threat which the applicant would face on return to Sri Lanka comes from the authorities themselves. Therefore, the Tribunal finds that state protection from this threat in accordance with international standards would not be available to the applicant in Sri Lanka.

106.   With respect to whether or not the applicant could relocate internally within Sri Lanka to avoid the harm he fears, the Tribunal notes that the perpetrators he fears are the authorities, who exist nationally. Therefore, internal relocation is not an option in the applicant’s case.

107.   For reasons set out above the Tribunal finds that the applicant has a well-founded fear of persecution for reason of his actual or imputed political opinion, should he return to Sri Lanka now or in the reasonably foreseeable future.

108.   The Tribunal is satisfied the first applicant holds a well-founded fear of persecution as required by s 5J(1)(a), (b) and (c) and that the effective protection measures are not available to him pursuant to s 5J(2). It follows from these findings that the first applicant satisfies s 5J.

109. The Tribunal is therefore satisfied that the applicant satisfies the refugee criteria under under s 5H(1) of the Act.

110.   The LTTE successfully carried out a number of high-profile attacks, including the assassination of two heads of state. The LTTE were also notorious for their use of suicide terrorism, perpetrated by their elite suicide bombing unit known as the Black Tigers. Prior to its comprehensive defeat in 2009, Australia, Canada, the European Union, the United Kingdom, the United States of America and many other governments have designated LTTE as a foreign terrorist organisation.[21] The first applicant has admitted having provided false and misleading statements about his involvement in the LTTE but has recently admitted to concealing his former role as combatant in the military wing of the designated, albeit defunct proscribed organisation. 

[21] Standford Centre of International Secrutiy and Cooperation, Tamil Tigers,   The Tribunal notes that the material before it may give rise to issues that the first applicant does not meet the meaning of the refugee if the Minister has serious reasons for considering that the person has committed a crime against the peace, a war crime or crime against humanity, as defined by international instruments prescribed by the regulations; or committed a serious non-political crime before entering Australia; or to persons who have been guilty of acts contrary to the purposes and principles of the United Nations: section 5H(2).

112. In remitting this matter under s 5H(1), the matter will be remitted to the Department for reconsideration, including consideration as to whether the first applicant is excluded by the operation of s 5H(2) as it is the correct and preferrable decision for the Tribunal to reach in relation to the first applicant.

Does the second applicant meet the refugee criteria?

113. As the Tribunal has not made findings the first applicant may be excluded from refugee status under s 5H, the Tribunal has proceeded to consider whether the second applicant satisfied the refugee criteria under s 36(2)(a).

114.   The second applicant admits that key aspects of her earlier claims for protection – advanced from the applicant’s arrival in Australia and until May 2023 - were not accurate or truthful. The adverse credibility findings made in relation to a number of events that occurred in the post conflict period is similarly applicable to the second applicant.

115.   Nonetheless, The Tribunal accepts the second applicant was born in [District 1] in Sri Lanka’s Northern Province; that she is of Tamil ethnicity and Hindu by faith tradition. Given the findings above, the Tribunal accepts those key past harm incidents that occurred since her marriage to the second applicant leading up to the end of the civil war, including her injuries sustained by Sri Lankan armed forces’ shelling of home area in an LTTE controlled and her experiences during convalescence.  

116.   The Tribunal accepts the second applicant’s husband was a former senior LTTE officer and that he has a real chance of being detained on a long-term basis. In this context, the question arises as to whether the second applicant has a well-founded fear of persecution on the basis of her marital association, should the second applicant with her children return to Sri Lanka, into the reasonably foreseeable future.

117.   On arrival, the Tribunal anticipates that the second applicant, as a failed asylum seeker, will be interviewed and further investigations will be undertaken about her identity, the circumstances of her departure a decade ago, whether there are any outstanding summons or court orders and about the citizenship status of her Australian born children, the fourth and fifth applicants. They will also investigate whether there are any records of being a combatant in the LTTE itself and whether she has been involved in pro-Tamil separatist or LTTE commemorative activities while in Australia. There is no suggestion the second applicant has been a combatant for the LTTE or it is accepted the second applicant does not have any sur place activities which alert her to being a person of interest to the authorities. The Tribunal does not foresee any real chances of being harmed arising from these specific investigations.

118.   The Tribunal finds that the second applicant’s detention and questioning will last for   only a short period of time before she with her three minor children will be released into the community and return to resettle in Sri Lanka’s Northern Province where she has family. It finds the second applicant only has remote chance of being detained for a longer period of time where she will face forceful interrogation or cruel or degrading conditions while held in custody.

119.   In being released into the community, the Tribunal accepts that the second applicant will be without her husband as he will be subjected to longer term detention, possibly without charge under Sri Lanka’s anti-terrorism laws, and it is these circumstances which are more relevant to the Tribunal in assessing whether she has refugee status.

120.   The most recent DFAT report on Sri Lanka states the following about the condition for women in the north and east of Sri Lanka. 

Thousands of women in the north and east lost husbands and other family members during the war. Some were active participants in the war: the LTTE had a dedicated female military wing and women had their own brigades. Some women who fought for the LTTE were forcibly recruited. The 2011 UN Secretary-General’s Panel of Experts and the 2015 report of the OHCHR investigation into serious human rights violations outlined allegations of war-time sexual violence against Tamil women that would constitute war crimes. DFAT considers allegations of sexual violence against female former LTTE members held in detention camps in 2009 and 2010, and in military-run rehabilitation centres, to be credible. In 2017, the UN Special Rapporteur on minority issues reported a decrease in the incidence of sexual assault by the military as it drew down in the north and east, but some Tamil women continue to fear sexual assault in locations where the military presence remains.

For Tamil-speaking women in the north and east, language is an added barrier to state protection against domestic violence. Most police officers in the north and east are not proficient in Tamil. According to local sources, there are few Tamil-speaking female police officers trained to respond to gender-based violence, and women’s and children’s desks at police stations in the north are often attended by Sinhala-speaking male officers. One source told DFAT that police sometimes solicit sexual favours from women who report complaints. Few cases of gender-based crimes involving a member of the security forces have resulted in convictions.

Support services – state and non-state – are available for women in the north and east, but are generally not considered adequate. Local sources report that there are no particular services tailored to 34 single women but they are not barred from them. Tamil-speaking officers dedicated to women’s affairs are attached to Divisional Secretariats, and provide counselling and other support services. Sources told DFAT that support services for women in the Northern Province were being provided primarily by NGOs, who had to cover large geographic areas yet lacked resources. One source in the Eastern Province told DFAT that support services for women there compared favourably to – and in some cases were even superior to – those services available in Colombo.

The DFAT report further states that the Sri Lankan Government acknowledges that former LTTE members and their families may continue to face discrimination both within their communities and from government officials. DFAT cannot verify claims that people have been arrested and detained because of their family connections with former LTTE members but understands that close relatives of high-profile former LTTE members who are wanted by Sri Lankan authorities may be subject to monitoring. The ITJP, based on interviews with Tamils who have fled the country and are resident overseas, states that family members of former or suspected former LTTE cadres have been subject to harassment and detention

121.   Based on this country information, the Tribunal accepts that the second applicant genuinely holds a subjectively held fear that she will be seriously harmed by the authorities on the basis of her marital status with a former LTTE combatant. Specifically, she fears that women with family connections with LTTE combatants who are otherwise routine monitoring will lead to significant physical harassment and significant physical ill-treatment, including asking for bribes and sexual assault.

122.   Objectively speaking, the Tribunal also accepts the second applicant faces a real chance she will be monitored and surveilled by the authorities in Northern Province, as is typical and usual for failed asylum seekers from the Northern and Eastern provinces. However, in this matter, the degree of monitoring and even questionings is substantially more intense given her husband is likely to be detained for a sustained period of time as a former LTTE combatant.

123.   Based on the available country information, it is beyond a remote or a far-fetched chance that that Sri Lankan authorities will make face to face contact with the second applicant to forcefully question her. The country information outlined above highlights that Tamil women are vulnerable to sexual abuses by the CID and other authorities when required to deal with them and the risk increases without male companions and if they have strong family connections with former LTTE combatants and leaders. 

124.   With no support from her husband, her social isolation increases the likelihood for opportunistic sexual harassment and assault, or of such serious harm motivated to intimidate the vanquished families of former LTTE combatants and the wider Tamil communities in Sri Lanka’s north and east. The Tribunal considers that while being questioned in the community and while the authorities seek more information about her husband’s background as a former LTTE combatant, there is a real chance the second applicant will again be vulnerable to serious sexual harm and other mistreatment by the authorities. There are risks of such harm also occurring while encountering military checkpoints.  Risk adverse relatives who will wish to avoid interchanges with the authorities cannot be relied upon to protect the second applicant from such arbitrary harm, and some may even be antagonistic towards her and her husband for inviting adverse attention to the wider family.  

125.   The Tribunal considers this foreseeable harm that the second applicant is at a real risk of in Sri Lanka is serious for the purposes of s 5J(5) and s 5J(4)(b).

126.   It also involves systematic and discriminatory conduct in that it will be done to her intentionally and selectively based on her membership of the particular social group, namely Tamil women with connections with former LTTE combatants, pursuant to s 5J(1)(a) and 5J(4)(a) and (c).

127.   As the state is the agent responsible for the harm the Tribunal is not satisfied that there is available effective protection to the applicant in Sri Lanka. The Tribunal also considers that the risk of harm relates to all parts of Sri Lanka.

128.   The Tribunal is satisfied the second applicant holds a well-founded fear of persecution as required by s 5J(1)(a), (b) and (c) and that the effective protection measures are not available to him pursuant to s 5J(2). It follows from these findings that the first applicant satisfies s 5J.

129. The Tribunal is therefore satisfied that the applicant has a well-founded fear of persecution and meets the criterion set under sections 5H(1) and 36(2)(a).

The other applicants  

130. In this decision, the Tribunal is not required to make exhaustive or cumulative findings relevant to the other applicants as having Australia’s protection obligations prompted under sections 36(2)(a) or (aa).

131.   In returning to Sri Lanka with the other applicant’s mother and the extended families, the Tribunal anticipates that the other applicants will obtain and not be denied all the rights entitled to Sri Lankan citizens. The Tribunal does not anticipate them having a real chance of serious harm for one of the reasons mentioned under s 5J(1)(a) or a real risk of significant harm based on any association with their parents or being Tamil or being imputed with LTTE sympathies, either individually or cumulatively considered, in returning to Sri Lanka, either now or into the foreseeable future.

132.   Accordingly, the Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa).

133.   In this presently constituted matter, the Tribunal is satisfied that the third, fourth and fifth applicants are the biological children of the second applicant. The second applicant is a non-citizen in Australia that satisfies the criterion in s.36(2)(a) and is entitled to a protection visa provided the remaining criteria for the protection visa is met.

134.   As the Tribunal is satisfied that the second applicant is a member of the same family unit of the other applicants, who are dependent children of the second applicant as the family head, in accordance with regulation 1.03.

135. It follows from this that the fate of the other applicants’ visa applications depends on the outcome of their mother who satisfy s 36(2)(a) and that they will be entitled to protection visas provided the criterion in s.36(2)(b)(ii) and the remaining criteria, including security requirements, for the visa are met.

136. Accordingly, the Tribunal finds that the third, fourth and fifth applicants satisfies section 36(2)(b)(i) as they are members of the same family unit as a non-citizen in Australia who satisfies section 36(2)(a).

Conclusion

137.   The Tribunal is therefore satisfied that the first applicant satisfies the refugee criteria and under meaning of refugee under s 5H(1) of the Act.

138. In remitting this matter under s 5H(1), the matter will be remitted to the Department for reconsideration, including consideration as to whether the first applicant is excluded by the operation of s 5H(2).

139.   The Migration and Refugee Division of this Tribunal has no power to consider s 5H(2). 

140. For the reasons given above the Tribunal is satisfied that the second named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).

141.   The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa).

142.   The Tribunal is satisfied that the other applicants are the dependent children of the first named applicant and are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the second named applicant’s application.

143.   It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

144.   As discussed in the hearing, the Tribunal has no power to consider s 36(1B).  Section 36(1B) states that a criterion for protection visa is the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (with the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979). In finding the second applicant satisfies s 36(2)(a), the matter will be remitted to the Department for reconsideration, including consideration as to whether any of the applicants are excluded by the operation of s 36(1B).

DECISION

The Tribunal remits the matter for reconsideration with the direction that:

·     the first named applicant satisfy s 5H(1) of the Migration Act;

·     that the second named applicant satisfy s 36(2)(a) of the Migration Act; and

·     the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second named applicant.

Brendan Darcy
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.

…