1801412 (Refugee)

[2023] AATA 3105

1801412 (Refugee) [2023] AATA 3105 (21 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Shamili Kugathas (MARN: 1798225)

CASE NUMBER:  1801412

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Roslyn Smidt

DATE:21 June 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 June 2023 at 3:48  PM

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Tamil ethnicity – involvement in student politics in university – participated in student protests – provision of assistance to former LTTE members through volunteer work – sexually assaulted by a man who claimed to be from the CID – attended occasional Tamil cultural or social events in Australia – failed asylum seeker – imputed political opinion – pro-LTTE/pro-separatist – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who is a citizen of Sri Lanka, applied for the visa on 6 July 2016. The delegate refused to grant the visa on the basis that she found much of his evidence lacked credibility and she was not satisfied his fears were well-founded.

3. The applicant appeared before the Tribunal on 30 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   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–5LA, 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.

    BACKGROUND

11. The applicant is a [age]-year-old single man from Sri Lanka. He was born in [City 1] and lived with his parents in nearby [Location 1] until October 2014 when he moved to Colombo. He resided in Colombo from October 2014 until his departure for Australia in June 2016. The applicant’s parents reside in Sri Lanka. He has three siblings, a brother who remains in Sri Lanka, a brother in [Country 1] and a sister in Australia. The applicant’s father is a member of the Ilankai Tamil Arasu Kadchi Party, which is one of the parties which make up the Tamil National Alliance (TNA). He served on the local council in [City 1] from 2011 to 2015.

12. The applicant completed a [Discipline 1] degree at [University 1] between September 2009 and September 2014. As part of that degree, he completed a Diploma in [Subject 1] at [Organisation 1] which is run by [Church 1] between about April 2012 and early 2013. While in Colombo he worked as a [Occupation 1] at different [workplaces].

13. The applicant obtained a Sri Lankan passport [in] 2009. He visited India [from] July 2009 [to] August 2009. He obtained a visa for Australia on 13 April 2016. He departed Sri Lanka [in] June 2016.

    SUMMARY OF CLAIMS

14. The applicant claims to be at risk of serious or significant harm including discrimination, denial of his rights, arrest, charges under the Prevention of Terrorism Act, detention and torture or other serious physical harm on return to Sri Lanka because of hisTamil ethnicity, his place of origin, his involvement in student politics,  his real or imputed support for the Liberation Tigers of Tamil Ealam [LTTE], his support for separatism/ opposition to the unitary state of Sri Lanka and his membership of particular social groups of failed asylum seekers returning from western countries, victims of sexual violence and individuals with an outstanding arrest warrant.

    COUNTRY INFORMATION[1]

    [1] This overview relies on DFAT Country Information Reports dated 3 October 2014 and 24 January 2017 for information on the period during which the applicant claims to have faced problems in Sri Lanka because of his involvement with rehabilitated LTTE members. More recent information  is based on DFAT Country Information Reports dated 23 December 2021 and the UK Guidance Country policy and information note: Tamil separatism, Sri Lanka, mostly recently updated in April 2023 but has remained largely unchanged since at least 2021.

15. By way of context the civil war between the government of Sri Lanka and the LTTE ended with the defeat of the LTTE in May 2009. Hundreds of thousands of people who had been displaced by the conflict were housed in displaced people’s camps. Towards the end of the conflict some civilians were questioned and released. Former LTTE members were arrested and detained. Most of them were sent to government-run rehabilitation camps. A smaller number were prosecuted through the court system. By 2017 over 12,000 LTTE members had been detained in rehabilitation camps and released. Only about 50 remained in a rehabilitation centre, but some who were arrested and charged under the PTA remained in prison.

16. The Sri Lankan military maintained tight control over the north of Sri Lanka for some years after the end of the civil war in 2009. In October 2014 DFAT noted that many Tamils, particularly in the north and east, expressed fears of monitoring, harassment, arrest and detention by security forces. DFAT noted that one of the main roles of the security forces and intelligence operatives in the areas was monitoring for any possible LTTE activity and that community members were sometimes questioned after they had been visited by NGOs in the area. The report noted that Tamils were no longer required to register which suggested that monitoring and harassment of Tamils in day-to-day life had generally eased since the end of the conflict. It also observed that the United Nations High Commissioner for Refugees’ (UNHCR) eligibility guidelines released in July 2010, stated that due to the improved human rights and security situation there was ‘no longer a need for group-based protection mechanisms or for the presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country’, although some former LTTE members remained at risk of harm.

17. There was a change in government in Sri Lanka in August 2015. The new government prioritised human rights and reconciliation and according to DFAT’s January 2017 report had made significant progress towards those goals by that time, for example replacing military governors in the north with civilians, releasing some individuals detained under the PTA and removing military checkpoints on roads leading to the north. In DFAT’s assessment monitoring and harassment of Tamils in day-to-day life had decreased significantly since the new government came to power. While there continued to be a large military presence in the north, police were responsible for civil affairs and armed forces personnel were generally restricted to their barracks. Monitoring of civilian activities was greatly reduced, although some monitoring of public events by military or police continued. Members of the Tamil community also described a positive shift in the nature of interactions with authorities.

18. DFAT’s January 2017 report noted that Sri Lankan authorities remained sensitive to the potential re-emergence of the LTTE. It also notes that reports indicate that despite the change in government in 2015 the Sri Lankan government continued to detain some Tamils suspected of continuing to support the LTTE or separatism and human rights abuses and that torture and ill-treatment of some detainees continued to be a problem.

19. DFAT’s 2021 Country Report states that Tamils generally face a low risk of official or societal discrimination based on ethnicity, although some have reported discrimination in relation to government jobs. The Report provides a general overview of continuing human rights abuses including the use or misuse of the PTA and the  ill-treatment and torture of some detainees.  It also notes reports that the return to power of President Gotabaya Rajapaksa and Prime Minister Mahinda Rajapaksa in 2020 saw a reversal of some of the reforms instituted by the previous government, a weakening of institutions that provide democratic accountability and some increased militarisation. However, the situation for most Tamils appears to have remained broadly similar to the situation under the previous governments.

20. While reports suggest that the LTTE no longer exists as an organised force in Sri Lanka, and former LTTE members within Sri Lanka have minimal capacity to exert influence on the broader Tamil community, the authorities remain concerned about the potential re-emergence of the LTTE and separatist tendencies in general. It is illegal to commemorate the birthday of LTTE leader Prabhakaran (26 November), or Maaveerar Naal (‘Great Heroes’ Day’, 27 November). Public display of LTTE symbols, including the LTTE flag and images of Prabhakaran, is also banned. Some Tamils who attempted to defy these bans have been harassed or arrested. Tamils have also been arrested under the PTA commemorating the war or for alleged LTTE-supportive behaviour

21. The report notes that surveillance of Tamils in the north and east continues, in particular in relation to politically sensitive issues. However, physical violence against those being monitored is not common and ordinary Tamils living in the north and east of Sri Lanka were at low risk of official harassment.

22. The authorities collect and maintain sophisticated intelligence on former LTTE members, supporters and other separatists, including ‘stop’ and ‘watch’ electronic databases of individuals considered to be of interest. While it appears that anyone named on these lists is likely to be monitored, only some are at risk of immediate arrest or detention if they are located. Former LTTE members and suspected LTTE members have reported harassment such as visits to family members and seizure of mobile devices. However, DFAT assesses that Tamils with former links to the LTTE  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 group.

23. The report notes that at least one million Sri Lanka Tamils live outside the country. Some return to Sri Lanka to visit family members, for holidays and for business. The Tamil diaspora played an important role providing funding and material support to the LTTE during the war. Some groups continue continued to hold public demonstrations for an independent Tamil state. Overall DFAT assessed that Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their security risk profile. Those who hold leadership positions in Tamil diaspora groups, particularly those deemed hold radical views; those who were formerly part of the LTTE, particularly those in high-profile roles; those who are suspected of raising funds for the LTTE during the war; and those who actively advocate for Tamil statehood would be of particular interest to the authorities.

24. According to DFAT failed asylum seekers may be questioned by authorities on arrival in Sri Lanka. The likelihood that this will occur depends on the manner in which they departed and their personal circumstances, such as whether they departed illegally, are returning on temporary travel documents or are of interest to the authorities for some other reason.

    UK Upper Tribunal decision on  KK RS dated 27 May 2021 and country information provided by the applicant’s representative

25. The DFAT report briefly reviews the finding of the UK Upper Tribunal decision on  KK RS dated 27 May 2021, which serves as a guidance decision for UK decision makers in relation to sur place claims related to members of the Tamil diaspora.

26. The applicant’s representative has cited this decision as a useful for the guidance it provides and because in their submission it contains a scathing rejection of the 2019 DFAT report and DFAT advice should therefore be used with caution.  The Upper Tribunal does not contain scathing criticisms of the 2019 DFAT report. It found that fact that DFAT’s 2019 report was out of date did not include the names of all of the sources consulted or detailed reports of it interviews conducted when preparing the report which limited it usefulness for their purposes. I note that the KK RS Decision, the UK Guidance Notes and the applicant’s representative all cite sections of DFAT’s Country Information Reports with apparent approval. I also note that the conclusions in DFAT’s current Country Information are broadly similar to those set out in KK RS Decision.

27. That said, the Upper Tribunal decision sets out evidence from a range of written sources and oral evidence provided at a hearing by several expert witnesses and provides a very useful overview of the situation of the situation in Sri Lanka and in particular the situation of Sri Lankan residing abroad in early 2021.

28. It notes advice from several independent experts which suggests that the Sri Lanka government interprets separatism broadly and may view non-violent expression of Tamil nationalism as support for a separatist agenda. It notes that members of the Tamil National Assembly (TNA) and the Tamil National People's Front (TNPF) have been criticised or harassed for supporting federalism, which some see as akin to separatism, but also observes that no evidence was provided which suggested that individuals Sri Lanka were being detained purely on the basis of expressing separatist views, as opposed to suspected links with the LTTE or similar groups. Overall, the Upper Tribunal found that there was limited space for pro-Tamil political organisations to operate within Sri Lanka, but no tolerance of the expression of any avowedly separatist or perceived separatist beliefs.

29. It notes with approval the views of academics which suggested that the Sri Lankan government was particularly focused on the Tamil diaspora where a number of proscribed pro-separatist groups continue to operate and observes that Tamils living abroad are generally viewed with some degree of suspicion. However, it also notes that the evidence provided indicated that the Sri Lankan government was interested in politically active elements within the diaspora, not all Tamils living abroad. It also observed that Sri Lankan authorities would no doubt be aware of who these activist were as they operate an extensive intelligence-gathering regime in the UK.  It notes that no evidence had been presented which suggested that all failed asylum seekers were detained on return to Sri Lankan, which it observed suggested that not all Tamils living abroad are suspected of meaningful involvement in pro-separatist political activities.

30. The decision observes that most protection claims based on activities outside Sri Lanka relate to involvement with a particular organisation, although independent activity could give rise to a claim for protection in some circumstances.

31. In the view of Upper Tribunal activities which could be relevant to an individual’s overall risk profile including attendance at public demonstrations; attendance at relevant meetings; membership of relevant organisations;  distribution of promotional literature; meaningful fundraising or funding of relevant organisations; attendance at commemorative events such as Heroes Day; authorship of, or appearance in, articles published in print or online; social media activity; political lobbying on behalf of an organisation or the signing of petitions perceived as being critical of the government.

32. The likelihood that an individual would come to the adverse attention of the Sri Lankan authorities depends on the type of activities undertaken and the frequency of their participation. For example, in the view of the Upper Tribunal, standing passively at the back of a crowd at several demonstrations was unlikely to cause serious problems, even if it was known to the authorities. On the other hand, speaking publicly on a number of occasions, played a prominent organisational role in events or holding flags bearing the LTTE emblem,  could cause problems even if only a few such events have taken place. 

33. The Upper Tribunal also reviewed evidence regarding the situation of failed asylum seekers. It observed that returnees who lacked a valid passport and required an Emergency Travel Document  where likely to be questioned about their activities in the UK.  However, there was no evidence that failed asylum seekers who possess a valid passport would be questioned about their activities in the UK.

1. The applicant and his representatives have provided numerous reports on the situation in Sri Lanka to the Department and the Tribunal. I reviewed this information and considered it in my assessment of the applicant’s claims. Some of it is now out of date. In my view, most of it is broadly similar to the information provided in the DFAT Country Information Reports and the UK Guidance Notes referred to above.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Political involvement at [University 1]

   Evidence to the Department

2. In his initial statement the applicant said that he had been elected [office bearer] of [a named] Student Union in 2012 and that he was a well-known student leader because of his involvement in arranging Pongu Tamil[2] celebrations on an annual basis. In November 2012 students at the university boycotted classes and held a rally to celebrate LTTE Heroes Day.[3] The event was brutally attacked by the army and the police. The applicant was bashed during that incident. He and some friends were labelled LTTE accomplices.

   [2] Hindu celebrations held in January.

   [3] Instituted by LTTE prior to 2009 defeat. Held on 27 November. Sometimes called Martyrs Day. Celebrations have sometimes been banned.

3. According to the delegate’s decision,[4] when asked why he feared returning to Sri Lanka during an interview held on 7 December 2017, the applicant said that he had been targeted because of his role as [office bearer] of the student union and his actions in November 2012. He participated in a protest rally on 29 November 2012 following an incident in which the army entered a female hostel at the university and assaulted some of the students. He was hit on the head during the event. About two days later he and the other student union leaders were called in for questioning and taken to a camp. They were accused of involvement with the LTTE and tortured mentally, but not physically. Their parents and some academics intervened, and they were released after four days. Following that he and the other detainees reduced their involvement in politics and minded their own business.

   [4] A copy has been provided to the Tribunal.

4. On 20 December 2017 the applicant provided a letter dated [in] August 2016 signed by [Mr A], a member of the Eelam People’s Revolutionary Liberation Front and an ex-MP.[5] It states that the applicant was a union [office bearer] in 2011–2012 while studying at [University 1], that he had been involved in agitations against the government, that he was arrested or abducted at an unspecified time and detained in [City 2] and that received death. It adds that “somehow we persevered and got him released”.

   [5] [Mr A] was an MP from 2004 until 2010 and a he was a friend of the applicant’s father.

5. The applicant provided several articles regarding the student protests and the violent reaction of police in November 2012.

6. The delegate accepted that the applicant was the [office bearer] of his faculty’s student union while at [University 1]. However, she found his evidence regarding the student protests in November 2012 unconvincing and did not accept that he was involved in those events.

   Evidence to the Tribunal

7. In a statement dated 19 November 2022 the applicant said that after police entered female hostels at [University 1] in late 2012, he called the student representatives together and told them they should organise a protest. The protest was held the following day and was met with violence during which he suffered a minor injury. Two students were admitted to hospital then detained and questioned for two days. The applicant and the other student union [office bearers] were called for questioning at the police station. They learned that the students who had been hospitalised had named them as the initiators of the protest. They were taken to a CID camp in [City 2] for further questioning. They were released after four days following complaints from their parents and university staff.

8. At the hearing on 30 November 2022 the applicant confirmed that neither he nor any member of his family had been a member or supporter of the LTTE at any time. He said that no other member of his family had experienced problems as a result of political involvement since at least 2009. He worked on his father’s Council election campaign in 2011, but he was not involved in any anti-government political activities until the 2012 demonstration at [University 1]. He did not experience any problems with the authorities prior to the protests in 2012.

9. The applicant said that two students were arrested the day after the November 2012 protest. Two days later he and six other student union [office bearers] were told to report to [a] Police Station, which they did. They were accused of organising and leading the protest. It appeared that the two students who had been arrested earlier had told the police everything, so they confirmed that they had been involved. They were taken to a camp in [City 2] where people arrested under the Prevention of Terrorism Act (PTA) were held. They were tortured mentally by being told about the treatment of other students who had been arrested or disappeared. They were released after four days after their parents, university staff, the local Bishop and some NGOs intervened.

10. The two students who had been arrested on the day of the protests were accused of involvement in an attack on a TELO office which had occurred before the demonstration. They were produced in court after the applicant and the other students were released. The applicant and the six student leaders who were detained with him were not accused of involvement in that attack or anything apart from organising the protest. They were not charged with any offence. They returned to their studies at the university a few days after being released. The applicant resigned from the position of union [office bearer] shortly after that because he wanted to concentrate on his studies, and he did not want to face any pressure.

11. I asked the applicant if he had experienced any problems because of his involvement with the student union or his involvement in the November 2012 protest after that time. He said that he had been detained in July 2013. I observed that his earlier evidence suggested that this was linked to his [Subject 1] work (see below). He said that this was correct. He said that the CID monitored activities of students at the university, but he was not questioned after late 2012. Later in the hearing he said that he believed that it was his activities at the university which first raised suspicion that he was involved with or supported the LTTE in some way and contributed to his problems.

12. Later in the hearing I advised the applicant that I had some concerns regarding the claim that he was arrested following protests at [University 1] in 2012. In the first place, he did not mention this arrest in his initial application and secondly his account of the arrests of students from [University 1] in late 2012 differed significantly from reports of the incident published in the media. The applicant said that he had not understand the process for seeking protection when he first applied, and he followed the advice of his lawyer who told him to give a brief statement as he would have time to prepare a more detailed account of events before his interview with the delegate. In the end he only had a day to prepare for the interview, so he gave his evidence orally. He maintained that his version of events was correct and added that different people give different evidence to the media.

13. I observed that even if I accepted the applicant’s claim that he was arrested in late 2012 he had been released after a few days which suggested that he was not of significant interest to the authorities at that time. In addition, it was over 10 years since the events of late November 2012, and it seemed unlikely he would face problems on return to Sri Lanka because of his involvement in student protests. He said that his involvement in these events contributed to the perception that he was involved with the LTTE.

14. Following the hearing the applicant was provided with links to two of the articles referred to during the hearing as providing information on the events of November 2012:

    ·An online publication called [Publication 1] which provides reports on the situation at [University 1] from late 2012 to February 2013. Relevantly, updates posted on 1 and 10 December 2012, states that seven student activists from [University 1] who were summoned by [the] Police in relation to an alleged arson attack on 28 November 2012. Three surrendered to police or were arrested on 29 and 30 November 2012 and were detained at [location in] [City 2]. Later posts indicate that the three who were arrested first were transferred to [a] Rehabilitation Centre on 9 December 2012. An update posted on 7 December 2012 states that 10 students had been summoned for questioning. At least six of them appear to have surrendered or been arrested shortly afterwards. Some went into hiding.

    ·A statement signed by a large number of religious leaders, non-government organisations and individuals which was published in the [newspaper] on [date] December 2012. It condemns the arrest and unlawful detention of four students from [University 1] on 29 November 2012. It names the four students. It states that one was released on 4 December 2012, but the others remained in detention in [City 2].

15. In a submission dated 9 January 2023 the applicant’s representative stated that the applicant continued to rely on the evidence provided earlier and observed that the article from [Publication 1] did not cover events prior to 1 December 2012 and thus did not cover the time that the applicant was asked to report to [the] Police Station. The submission also states that the applicant did not mention his 2012 detention in his initial statement because he was focusing on his work with rehabilitated LTTE members which was the reason he could not return to Sri Lanka.

16. The applicant also provided a letter from [Mr A] dated 8 December 2022. It states that it was provided to “clarify the situation”. It states that the applicant was arrested by unidentified plain-clothed police at the beginning of 2016 and taken to [City 2] CID camp and that [Mr A] was involved in arranging his release.

17. During the second hearing on 20 April 2023, I advised the applicant that I was concerned that the letters from [Mr A] may not be genuine as the first letter appeared to refer to his claimed arrest in 2012 while the second suggested that he had been arrested in 2016, but not earlier. He maintained that they were genuine and that their contents were accurate. He said that [Mr A] knew about his involvement in student politics and helped his father secure his release in 2016. He said that he believed his father would have told [Mr A] about his arrest in 2012 but did not appear to be sure if this occurred.  He suggested that I telephone [Mr A] who would confirm that the letters were genuine.

18. A further hearing was scheduled for 16 May 2023 to take evidence from [Mr A]. On 9 May 2023 the applicant advised that he had not been able to contact [Mr A]. As [Mr A] was not available, the hearing was cancelled. On 22 May 2023 the applicant advised that he was still unable to contact [Mr A] who he understood was planning a trip to India. He asked that weight be given to the letters already provided. 

    Findings of fact

19. I accept that the applicant studied at [University 1]. I accept that he held the position of [office bearer] in the [Discipline 1] faculty student union from 2012 to early 2013 and that he was involved in organising Tamil celebrations during the 12 months he held that position. I accept that he participated in student protests in November 2012 and may have been beaten by police during these events. However, for the following reasons, I do not accept that he played a central role in organising the protests in November 2012 or that he was arrested and detained in late 2012 because of his involvement.

20. In the first place, he did not claim that he played a central role in organising student protests in November 2012 or that he was arrested following these protests in his initial application. He claims that he omitted this information because he was advised to be brief and told he would be able to include additional details later. I acknowledge that applicants often lack an understanding of the procedures for applying for protection and that they may omit some details when preparing an initial statement. However, I find it extremely unlikely that the applicant would not have mentioned that he played a central role in organising protests in November 2012 if this had occurred. I find it even more unlikely that in response to the question on the application form asking what harm he had suffered he would have stated that he was injured during those protests but failed to mention that he had been arrested and detained for four days.

21. Secondly, his account of events differs significantly from media reports regarding matters such as when students were arrested, the allegations made against them and when they were released.  I accept that media reports can differ. However, if the applicant had been amongst those detained, I believe his account of events would have aligned more closely with other reports.

22. I do not accept that the applicant has provided an accurate account of his involvement in the student protests in [City 1] in November 2012. I do not accept that he was an organiser of the protests or that he was arrested because of his role in the protests. I believe that he exaggerated his role after lodging his initial application in order to bolster his case for protection in Australia.

23. Furthermore, while I accept that the applicant held the position of [office bearer] of the student union at his faculty in 2012 and that he would have been known to other students at [University 1] as a result of this, there is no credible evidence before me which suggests that he was so active or prominent that he was well-known outside the university. Furthermore, there is no suggestion that he continued to be a student activist after he ceased to hold the [office bearer]’s position and I do not accept that he was well-known as a result of his time as a student leader within or outside of [University 1] after that time or that his involvement in student politics in 2012 caused or contributed to any problems he faced following late 2012.

24. In reaching these conclusions I have considered the letters from [Mr A]. The letter dated 2016 appears to confirm the applicant’s claim that he was detained in 2012. However, the letter provided in December 2022 appears to suggest that the arrest referred to in the 2016 letter occurred in 2016 for reasons unrelated to his involvement in student politics. There is nothing in the 2016 letter which suggests that this is the case. I do not accept that [Mr A] would have failed to clearly state in the first letter that the arrest it referred occurred in 2016, not 2012 or that he would have failed to provide at least some information on the reasons for the 2016 arrest.  I believe these letters were prepared in accordance with the applicant’s instructions. I am not satisfied that their contents are accurate, and I have given them no weight.

    Does the applicant face serious or significant harm on return to Sri Lanka because of his involvement in student politics in 2012?

25. While I acknowledge that Tamil student leaders were likely to be viewed with some suspicion and monitored by the authorities in 2012, there is no credible evidence before me which suggests that the applicant was of significant adverse interest to the Sri Lankan authorities at any time prior to his departure from Sri Lanka because of his involvement in student politics or protests at [University 1] in 2012. In reaching this conclusion I have noted his claims regarding being detained in 2013 and 2016 (see below). However, even if I accept these claims (which I do not), according to his evidence there were the result of his involvement in [helping] former LTTE members, not his involvement in student politics.  In these circumstances and given that it is now over 10 years since he was involved in student politics, I am not satisfied that he faces a real chance of experiencing serious or significant harm on return to Sri Lanka because of his involvement in student politics while studying at [University 1] in 2012 and early 2013.

    Imputed support for the LTTE or separatism as a result of providing [specified] and financial support to rehabilitated LTTE members and victims of violence

    Evidence to the Department

26. In a statement provided on 7 July 2016 the applicant said that while he was studying [Discipline 1], he was asked to provide services in displaced people’s camps, including services to LTTE cadre who had been released for rehabilitation. Because of this work he was suspected of past involvement with the LTTE. The army and CID started visiting and harassing him at his home and at the university. In 2013 he was arrested and taken to an army camp where he was identified as an LTTE member by unidentified men and tortured.

27. After that he was followed by paramilitaries and his parents had to pay bribes to avoid further problems. He was also arrested in his village in 2016 shortly before he left for Australia because he was suspected of collaborating with and seeking to resurrect the LTTE. He was beaten and starved. He was released after [Mr A] intervened. [Mr A] recommended that he leave the country, so he did.

28. According to the delegate’s decision, during an interview on 7 December 2017 the applicant said that while he was studying the [Subject 1] unit as part of his [Discipline 1] degree his father, who was a member of the local council, asked him to assist people returning to their village from rehabilitation camps.  He [assisted] these men and encouraged them to seek professional help. The CID and paramilitaries were monitoring former LTTE members at that time. They came to his home and accused him of encouraging a resurgence of the LTTE by providing this assistance. He told them he only recommended that the men go to a [hospital].

29. The applicant also claimed that he had worked as a volunteer [at Organisation 1] which was a service of [Church 1] whenever he had time between 2012 and 2015. The church sent a team of people including [various professionals] to assist widows with young children and other impoverished families. He worked for that service as a [Occupation 2] about once a month, mostly visiting people in their homes but sometimes at the church.

30. The applicant said that on one occasion he was approached by a man in plain clothes near a school at which the mobile [Organisation 1] unit was working in May 2013. The man asked why he was involved in [Subject 1] work and if he wanted to reform the LTTE. The man did not identify himself, but the applicant believed he was from the CID.

31. Three impoverished families came to the applicant’s attention while he was working for [Organisation 1]. Two were widows of deceased LTTE members and one was a former LTTE member who was crippled. He decided to engage in micro-financing and gathered funds to help them establish poultry farms.

32. The applicant claimed that while driving a van with livestock and materials for one of the families in July 2013 he was stopped by two men on a motorcycle who forced him onto their motorcycle and took him away. The delegate asked why they had not commandeered his van rather than transport him on a motorcycle already occupied by two men. He said that the van was full and there was not enough room for him and the two men. The delegate suggested that one man could have accompanied him in the van while the other remained on the motorcycle. The applicant then said that his friend [Mr B] was driving the van and there would not have been room for them. He later said that there were already two people in the van and he had been travelling ahead on his bike to show them the way.

1. The applicant said that the two men took him to a military camp where he was held in a tent and badly beaten. When he regained consciousness, his father was there. His father negotiated with his captors and after about 90 minutes he was released. When the delegate asked how his father knew where he was, he said that he believed that [Mr B] had contacted his father who would have assumed he had been taken to the camp because one of the men who arrested or abducted him spoke Sinhalese.

2. The applicant said that he sustained a significant injury from the beating he received in July 2013. He was unable to walk and received treatment at a private clinic. After that he stayed at home for several months to recover. He did not tell the [Organisation 1] about his detention and explained his absence from volunteer work by saying he had exams. He resumed [Subject 1] activities in December 2013, but only worked at the church. He told the church that he found visiting the people he [assisted] too taxing.

3. After the applicant completed his [Discipline 1] studies in September 2014 his father suggested he seek employment outside [City 1] for his well-being, so he went to Colombo. In December 2015 he returned home to [City 1] after contracting dengue fever. On 14 January 2016 he visited one of the families he had helped financially. That evening he was arrested from his home. He was accused of involvement in terrorism-related activities and not complying with directions not to engage in LTTE activities. He was detained for a day until his father’s friend intervened and he was released.

4. On 20 December 2017 the applicant provided certificates confirming that he had attended [University 1] from 2009 until 2014 and that he had completed a Diploma in [Subject 1] at [Organisation 1] in April 2013.

5. The applicant also provided a letter from the Director of [Organisation 1] dated 23 August 2016. The director said that she had known the applicant for five years, that he had joined the [Organisation 1] as volunteer which involved field work in war torn areas including helping amputees, traumatised people, those suffering from PTSD, alcoholics and people with mental health issues. While working as a volunteer he commenced a Diploma in [Subject 1] course conducted by the [Organisation 1] which involved field work. He continued to work as a volunteer for [Organisation 1] after completing his diploma course. He served as a coordinator for field work for traumatised clients and obtained an award for his work with traumatised young people and displaced families.

6. The delegate accepted that the applicant had worked as a volunteer for [Organisation 1]/[Church 1]. However, she pointed out a number of problems with his evidence regarding the manner in which he was detained and released in July 2013 and found the claim that he had been detained at that time lacking in credibility. As she did not accept that claim and there was no suggestion that the applicant had faced other problems while working for [Organisation 1], she also found the claim that he was arrested over three years later implausible. In reaching this conclusion she gave little weight to [Mr A]’s letter in relation to the applicant’s arrest as it appeared to be based on reports from the applicant’s father, not [Mr A]’s first-hand knowledge.

   Evidence provided to the Tribunal

7. In a statement dated 19 November 2022 the applicant said that when he was nearing the end of his [Subject 1] diploma course at [Organisation 1], he was asked to gain experience by working as a volunteer. He began this work in 2012 and continued until 2015. Initially he shadowed other [Occupation 2]s, but at the beginning of 2013 he was permitted to [work with] clients alone. Part of his role was to [assist] former LTTE members who had completed rehabilitation. He had great respect for the LTTE members because they had sacrificed so much fighting for the rights of Tamils. He visited some IDP camps and provided [specified assistance] there. He recognised some of the people as they were from his village.

8. The applicant again claimed that he had arranged financial assistance for the families of three former LTTE members who were in financial distress.  He came under the scrutiny of the Sri Lankan authorities in about May 2013 because they suspected he was working to reform the LTTE. He was detained in July 2013 while on his way to deliver goods to one of the families he was assisted. He was released after his father and the local GS [a government official] came to the camp and intervened on his behalf. He was severely beaten while in detention and treated at a private clinic after he release. Following that he was monitored and his friends were questioned about him. He did not return to his work with the church until about December 2013. After that he avoided participating in mobile visits and instead provided [specified service] only to church attendees.

9. The applicant claimed that in about September 2015 his father asked told him that he had had been questioned and threatened by the CID and that they had also asked where the applicant was. He believed that these problems had been orchestrated by a man who had sexually assaulted him in Colombo (see below).

10. The applicant said that he returned to visit his family in [City 1] in late 2015 after contracting dengue fever. On Thai Pongal Day in 2016 he visited one of the families he had assisted financially. That night some men came to his home and arrested him. His father protested but to no avail. He was taken to the [City 2] CID camp where he was again accused of working to reform the LTTE. His father asked [Mr A] for help. He was released the next day. He believes a large sum of money was paid. He returned to Colombo at the end of January 2016.

11. In support of these claims the applicant provided a letter dated 12 April 2022 from an attorney in [City 1] named [Mr C]. It states that the author knows the applicant and could confirm that he had been keen on social work and ready to help the needy. It states that the applicant continued this work after his graduation but provides no information on the nature of his work or any problems he faced as a result. The letter goes on to state that [Mr C] had been arrested under the PTA in April 2021 because of his involvement in humanitarian and social activities. It adds that the applicant would be at risk of harm on return to Sri Lanka because he continues to contribute to some social activities through his father. It provides not information on the nature of these activities.

12. At the hearing, the applicant said he had begun to study for a Diploma of [Subject 1] at the end of 2011 and that he first worked as a volunteer [Occupation 2] in November 2012, shortly before the protests at [University 1]. He completed his [Subject 1] course in April 2013. He did not continue his volunteer work while living in Colombo.

13. Later in the hearing I noted that the applicant’s earlier statements suggested that he had not done any volunteer work between his detention in July 2013 and December 2013 and that after December 2013 he only worked at the church, not in the field. He said he had continued to work with the mobile unit doing [specified] work once a month on weekends or public holidays after July 2013, but he had never returned to [Subject 1] field work as the authorities did not approve of that kind of work and he feared that he might face problems. He told the [Organisation 1] he could no longer do the [Subject 1] work because he had to concentrate on his studies.

14. I observed that the applicant appeared to have told the delegate that he became involved in [Subject 1] work at the request of his father, but he also appeared to have stated that he began to work as a [Occupation 2] as part of his field work while studying for a Diploma of [Subject 1] and asked him to clarify. He said that during the time he was studying for the diploma rehabilitated LTTE members were returning to the area and their parents asked his father to help them find support. His father asked him to visit one of these rehabilitated LTTE member. He appeared to suggest that he had turned to [Organisation 1] for assistance with that case. To clarify the situation asked whether all of his work as a [Occupation 2] was conducted through [Organisation 1]. He said that it was.

15. I advised the applicant that it was my understanding that government approval was required in order to provide services of the kind that he had described in [City 1] at that time.[6] He said that it was not his understanding that the [Organisation 1] had sought or obtained permission from the government, but they worked through [Church 1] and the church might have obtained government approval.

    [6] 'Sri Lanka's North II : Rebuilding under the military', International Crisis Group, 1 March 2012, p.12.

16. I noted that the applicant had claimed that he had worked in displaced people’s camps and asked which camps he had visited. He said that he had visited a camp in [location] with the [Organisation 1], but he could not recall its name. I advised him that it was my understanding IDP camps in the area had been closed by 2013.[7] He said that some were still open and added that he had only visited an IDP camp twice.

    [7] 'Final batch of Menik Farm IDPs relocated', Integrated Regional Information Network (IRIN) -United Nations, 28 September 2012; 'Freedom in the world 2013 - Sri Lanka', Freedom House, 10 June 2013, CX309121; 'Human Rights Watch World Report Sri Lanka 2013', Human Rights Watch (HRW), 21 January 2013, CX310698.

17. I asked the applicant how he had connected with people who needed [specified service]. He said that the church collected information on people who had been rehabilitated from village leaders and then allocated clients to him or one of the other three or four [Occupation 2]s on the team. The other [Occupation 2]s were older than him and one was a pastor. Most of the clients were rehabilitated LTTE members but some were people who had suffered trauma for other reasons. He [assisted] his clients until they were ready to lead a normal life, usually after about five or six sessions. Sometimes he returned to the village to speak to them when the team was not present. If the clients did not improve after about six sessions, he would tell their families to take them to a [professional]. He did this work mostly on weekends and public holidays.

18. I noted that the applicant had previously claimed that people from the CID had come to his home on a number of occasions after he began [Occupation 2] work and asked for information about these encounters. He said that he was only questioned on one occasion. This occurred in early 2013 after he visited a rehabilitated LTTE member at his father’s request. He did not know much about the man’s background, but he was very badly affected by his experiences, so he referred him to a [professional] after one visit. The CID did not question him at home on any other occasion, but he believed that he was being monitored.

19. I asked the applicant about his encounter with a man while working with a team at a school in May 2013. He said that from the man’s appearance he believed he was of Sinhalese ethnicity and that he worked for the CID. The man did not identify himself or speak to anyone else. When the man asked him if he was working to re-establish the LTTE he said that he was not and went back into the school. He never saw the man again. I observed that the man’s question could have been a random comment by someone who happened to be passing by. He agreed that this was possible.

20. I asked the applicant about his involvement in micro-financing and his arrest in 2013. He said that in 2013 a wealthy cousin who lived abroad had given him money to help three families to establish poultry farms. He was arrested when delivering goods to one of the families in July 2013. He believed the men who arrested him were from the CID. They took him to an army camp where he was asked why he was [assisting] rehabilitated LTTE members and accused of trying to re-establish the LTTE. He responded that he was just trying to help people who were suffering from [specified] issues. He was released later the same day after his father and the village head man came to the camp. He believed that he was released because the authorities did not have any evidence against him and they just wanted to torture and scare him.

21. I reminded the applicant of the delegate’s concerns about his description of the manner in which he was arrested in July 2013. He said that he had been travelling ahead of the van transporting the goods when the men stopped him and took him to an army camp which was about 500 metres away on their motorcycle. His friend [Mr B] followed the van and was able to tell his father where he was being held. I noted that this appeared to differ from his earlier evidence. He maintained he was telling the truth.

22. I noted that it appeared that other [staff] working for the [Organisation 1] had not been harassed because of their work and observed that it seemed unlikely that he would be the only one to face problems. He said that he was the only one who [assisted] rehabilitated LTTE fighters. He did this because the fighters had risked their lives and fought for other Tamils. I noted that he had previously stated that he was not an LTTE supporter. He said that he respected people who fought for a cause and wanted to bring them back to normal.

23. I noted that the letter from the [Organisation 1] confirmed that the applicant had worked as a volunteer helping victims of war but did not suggest that most of his clients were former LTTE members. He said that the [Organisation 1] could not mention this in the letter because it would cause problems with the authorities.

24. I noted that the applicant had claimed that he was detained in 2016 after visiting one of the families he had helped in 2013. He said that he had been detained in the evening, that he had been beaten and threatened and that he was released the following day. The CID told him they believed that he was trying to revive the LTTE, but he believed he was arrested on that occasion because a man who had sexually assaulted him in Colombo had influence over the CID (see below). He was not charged with anything. I observed that it seemed unlikely that he would have been released without charge if he was suspected of involvement in attempts to resurrect the LTTE. He said that they could not charge him because he was working through the church, and they had no evidence against him. He believed he was arrested and ill-treated so he would cease his activities and because of the influence of the man in Colombo.

25. I advised the applicant that I was aware that Tamils in the north of Sri Lanka had been monitored and sometimes questioned following the end of the civil war in 2009 and that I accepted that he may have been questioned briefly at some time while living in [City 1]. However, given that he had never been involved with the LTTE and his work was done through a church it appeared unlikely that he would have been suspected of involvement in attempts to resurrect the LTTE after the end of the war because of his volunteer work. I also observed that if the authorities had seriously suspected that he was attempting to resurrect the LTTE it seemed likely that they would have detained him for a significant period and possibly charged him under the PTA. He said that the army was concerned about him  because he had been helping families of LTTE members.

26. I noted that it was now some nine years since the applicant had ceased working as a volunteer [Occupation 2] in Sri Lanka and that it seemed unlikely that the authorities would have any interest in him because of that work if he returned to Sri Lanka now. He said that they might believe that he was helping from overseas (this claim is addressed below).

27. With regard to the letter from [Mr C], I noted that it was difficult to confirm his identity as he did not live in Australia and observed that in any event it did nothing more than confirm that he had held the position of [office bearer] of a student union at [University 1] and that he was interested in social work. I also observed that the author’s claim that he had been arrested under the PTA in 2021 because of his involvement in social welfare activities appeared to be at odds with DFAT advice on the situation. The applicant said that the author had been the Mayor of [City 1] and had been arrested in 2021.[8]

    [8] Following the hearing I located information which confirms that [Mr C] is a TNA politician who is or was the Mayor of [City 1] and was arrested by TID officers in 2021 in relation to allegations that he was attempting to resurrect the LTTE because of the style of uniforms worn by some council officials. He was charged under the Penal Code not the PTA and released on bail shortly afterwards. His arrest appears to have related to political harassment rather than any real suspicion of involvement in the LTTE. [Source redacted]. See also DFAT report 23 December 2021

28. As noted above, the applicant provided a letter dated 10 August 2016 from [Mr A] which confirmed that he was involved in student politics and stated that he had been arrested at some time. Following the hearing the applicant provided a second letter from [Mr A], which states that the arrest referred to in the first letter occurred in early 2016. It adds that the applicant was taken to [City 2] CID and that he ([Mr A]) arranged for the applicant’s father to speak to a high-ranking officer and also spoke personally to officers about the case. They told him that the applicant was being investigated because of his relationship to a former LTTE member. [Mr A] said that the applicant’s father told him he had paid a large sum of money to secure the applicant’s release.

29. In a submission provided on 9 January 2023 the applicant’s representative stated that in addition to his work for the [Organisation 1] the applicant had consulted with former LTTE members referred to him by his father and organised micro-financing for families of former LTTE members. He visited these families frequently and continued relationships with former LTTE members outside of his role as a [Occupation 2]. She added that the applicant had been suspected of attempting to revive the LTTE not just because of his involvement with the [Organisation 1], but because of his age, his association with former LTTE members as clients and friends, his prior involvement with the protests at [University 1] and his father’s political background. She also submitted that despite this he was not charged under the PTA while in Sri Lanka because of his employment status and his father’s political background.

    Findings of fact and consideration of claims

30. I found much of the applicant’s evidence regarding his work as a volunteer [Occupation 2], his association with former LTTE members he met through this work and the problems he faced as a result of this was confused and unpersuasive.

31. In the first place, he has provided differing accounts of when and where he worked as a volunteer [Occupation 2] and the nature of that work.

32. In his application lodged in July 2016 he said that he had treated injured people and provided [specified] services to former LTTE members and others in displaced people’s camps in Vanni at some time while studying [Discipline 1] [between 2009 and 2014].

33. During his interview with the delegate in December 2017 he said that he had [assisted] people returning to his village from rehabilitation camps at the request of his father and that he began to work for [Organisation 1] after he finished his Diploma [in April 2013]. He said that this work involved providing [assistance] to widows with young children and other impoverished families in their homes from 2012 to 2015.

34. The letter from [Organisation 1] provided following that interview suggests that he first volunteered for [Organisation 1] before he began to study for his Diploma of [Subject 1] [in about April 2012]. It states that he worked with people who had suffered trauma as a result of violence but makes no mention of former LTTE members. It states that he served as a coordinator for field work at some time. It does not suggest that he ceased volunteering or [Occupation 2] work for an extended period while working for [Organisation 1].

100.   According to his statement dated 19 November 2022 he began to work for [Organisation 1] when he was nearing the end of his Diploma Course [in about April  2013]. Some of his work involved [assisting] former LTTE members and some of it involved visiting IDP camps. He shadowed a more experienced [Occupation 2] until early 2013. He did no volunteer work for [Organisation 1] between July 2013 and December 2013. 

101.   At the hearing he said that he first worked as volunteer for [Organisation 1] shortly before the protests at [University 1] in November 2012, that he continued to work for the [Organisation 1] [specified] unit about once a month until he left for Colombo in October 2014, but he did no [Occupation 2] work after July 2013. He claimed that his work involved assisting a range of people including former LTTE members. He initially stated that the [Organisation 1] had referred rehabilitated LTTE members to him and another three or four [Occupation 2]s, but when later asked why the other [Occupation 2]s had not faced problems, claimed that he was the only [Occupation 2] who worked with former LTTE members

102.   Secondly, his evidence regarding the problems he faced as a result of his volunteer work was confused, contradictory and sometimes implausible.

103.   According to his July 2016 application he was repeatedly visited and questioned by the CID or army at his home and at the university after he began to work as a [Occupation 2] and that his parents had paid bribes to avoid further problems. The former claim was not repeated in any of his later submissions and at the hearing he said he had been questioned by the CID at his home only on one occasion in early 2013. And while he later claimed that his father paid a large bribe to secure his release from detention in 2014, the claim that his parents paid bribes to prevent further problems after he was detained in 2013 was not repeated in any later submissions.

104.   According to his July 2016 application he was identified as a LTTE member by an unidentified man in 2013.  At the hearing he said that despite being detained on two occasions on suspicion of LTTE involvement, he was not charged because they had no evidence against him.

105.   I found his evidence regarding the manner in which he was arrested and released in 2013 unconvincing. During his interview with the delegate he initially stated that he was driving the van carrying goods for the poultry farm, but when the delegate suggested that it seemed unlikely that the men who arrested him would have taken him to the army camp on their motorcycle rather than commandeering his van, he changed his evidence and said he was not in the van but on his motorcycle and there one or two people in the van so there was not enough room for everyone. More significantly, when the delegate asked how his father located him at the army camp, he said that he believed that his father would have assumed he was at an army camp because the friend who was with him would have told him one of the men who took him spoke Singhalese. At the hearing he said that the friend had followed him to the camp and was therefore able to tell his father where he was.

106.   He has given differing accounts of why he was detained in 2016, first claiming that it was because of his association with former LTTE members and later claiming that it had been done at the request or on the instructions of the man who assaulted him in Colombo.

107.   The claim that his father was questioned about him by the CID in 2015 was first mentioned in his November 2022 statement. This is a significant claim and I believe he would have been mentioned prior to the delegate’s refusal of his application if it were true. In reaching this conclusion I have noted that he claims that his father was harassed in 2015 due to the influence of the man who assaulted him in Colombo and considered the possibility that he did not mention that his father had been harassed because he was reluctant to speak about the assault. However, I noted that he mentioned the claimed 2016 detention, which he now claims was the result of the actions of the man who assaulted him in earlier submissions.  While I accept that victims of rape are often reluctant to discuss being assaulted, he could easily have stated that his father was questioned without mentioning the assault and I believe he would have done so if this claim was true.

108.   Thirdly, I found his evidence regarding his involvement in fundraising for LTTE families he met through his work as a [Occupation 2] unpersuasive. There was no mention of these activities in his initial application, which does not sit well with his later evidence that he was detained 2013 and 2016 in large part because of his involvement with these families. In addition, his evidence to the delegate suggested that he had engaged in fundraising activities as part of a micro-financing project, while at the hearing he said that the funds had all been provided by his wealthy cousin.

109.   Fourth and finally, I found his evidence regarding his relationships with former LTTE members he met while providing [specified] services unpersuasive. This claim does not sit well with his evidence at the hearing when he said that he usually met clients about five or six times after which he referred them to a [professional] if they needed more help and said nothing which suggested he established ongoing friendships with any of them. It is also at odds with his evidence at the hearing that he ceased engaging in field work in July 2013 because it involved visiting clients in their homes which was dangerous. If the applicant had established relationships with a number of former LTTE members which went beyond [assisting] them several times as suggested in the post hearing submission, I believe he would have mentioned this in his earlier statements.

110.   I acknowledge that some of the problems set out above are relatively minor and could perhaps be the result of the passage of time or the difficulties that applicants often face when providing evidence on multiple occasions. However, others are more significant, and in my view the overall pattern of the applicant’s evidence indicates that he has not been entirely frank with the Department and Tribunal when describing his work as a volunteer and the problems he faced as a result. After considering all of the relevant evidence and in light of my finding regarding the credibility regarding his claimed detention in 2012, I am not satisfied that he had provided an accurate or truthful account of his involvement in [specified service] or the problems he faced as a result.

111.   I accept that that the applicant provided occasional [specified] services to clients of [Organisation 1] while studying for his [Discipline 1] degree. I accept that he may have spoken to a former LTTE member on one occasion at the request of his father. Many rehabilitated LTTE members were returning to the [City 1] area after 2009, and it is plausible that his father was asked to provide some assistance or advice given his role as a politician. I accept that he may have been questioned by the CID on one occasion in 2013. As noted above, the authorities monitored the entire Tamil population in [City 1] to some degree during that period and many Tamils were questioned about their activities and it is plausible that he was questioned about his activities. I accept that an unknown man may have questioned the applicant in May 2013 and that the applicant may have believed he was from the CID. However, I believe that he has greatly exaggerated his involvement with former LTTE members to support the claim that he was detained in 2012 and 2016 and bolster his claim for protection in Australia.

112.   I do not accept that the applicant provided services to wounded or traumatised people in IDP camps at any time. I do not accept that most of his [Occupation 2] clients were former LTTE member or that he was the only [Occupation 2] at [Organisation 1] to provide services to former LTTE members or that he maintained ongoing relationships with some former LTTE members he met through his [Occupation 2] work or that he provided financial assistance to several families associated with the LTTE.  I do not accept that he was detained in 2013 or 2016 because he was seriously suspected of working to resurrect the LTTE or because he was believed to hold separatist views or for any other reason. There is no suggestion that he belonged to or supported the LTTE at any time and given the vetting processes following the end of the civil war I believe that the authorities would have been aware of this. In reaching this conclusion, I acknowledge that the police and security forces in the [City 1] area sometimes behaved in an arbitrary manner in the aftermath of the civil war and young Tamil men were sometimes detained for little or no reason. However, given the problems set out above and my findings regarding the credibility of other aspects of the applicant’s evidence I am not satisfied that he was detained on any occasion. And even if I accepted that he was briefly detained at some time as a result of arbitrary actions of the Sri Lankan authorities (which I do not), this does not alter my view that he was not suspected of involvement with attempts to support or resurrect the LTTE prior to his departure from Sri Lanka.

113.   In addition, while I accept that an unidentified man questioned the applicant while he was working for the [Organisation 1] in 2012, as he agreed at the hearing, the man could have been a passer-by with no connection to the authorities. In any event, the applicant had no further contact with him and on the evidence before me and I do not accept that this brief encounter suggests that he was being monitored, at least not in more than the general manner in which all local Tamils were being monitored at that time, or that he was of particular interest to the authorities in 2013.

114.   In reaching this conclusion, I have considered the submission that the applicant’s involvement in student politics in 2012 contributed to the suspicion that he was involved in efforts to support of re-establish the LTTE while working for the [Organisation 1]. I acknowledge that Tamil student activists were viewed with some suspicion by the authorities following the end of the civil war, particularly if they were involved in events which appeared to celebrate the role of the LTTE. However, as discussed above, I find that he exaggerated his role in student protests. I do not accept that he was of significant or continuing adverse interest to authorities because of his involvement in student politics in 2012 or that his involvement in student politics caused or contributed suspicion by the authorities that he was involved in attempts to reform the LTTE.

115.   I have also considered the claim that the applicant was suspected of involvement in the LTTE prior to leaving [City 1] because of his Tamil ethnicity. I acknowledge that Tamils from the north of Sri Lanka, particularly young men, were often viewed with some suspicion during and sometimes following the civil war. However, while it is clear that the authorities remained concerned about a resurgence of the LTTE or separatist sentiment following 2009, in my view the evidence does not suggest that all young Tamils from [City 1] were generally viewed as likely supporters of the LTTE as late as 2013 or 2016. The applicant was never an LTTE member or supporter and given the extent of the investigation and monitoring of Tamils following the end of the civil war I believe the authorities would have been aware of this. I do not accept that the applicant was viewed as a supporter of the LTTE or separatism while working for [Organisation 1] partly or solely because of his ethnicity.

116.   Finally, with regard to the applicant’s father’s political background, his father belonged to a legal political party which participates in mainstream politics. There is no suggestion that he has faced problems because of his political involvement at any time and nothing in the evidence before me suggests that the applicant would be suspected of involvement in the LTTE because of his association with his father.

117.   In reaching these conclusions I have considered the letters signed by [Mr A]. However, for the reasons set out above I am not satisfied that they are genuine and I have given them no weight.

118.   I have also considered the letter from the [Organisation 1]. However, as pointed out at the hearing it does little more than confirm that the applicant worked as a volunteer for the [organisation], which I accept.

119.   Finally, I have considered the letter from [Mr C]. However, even if I accept that the letter was written by [Mr C] it is clear that he has little or no knowledge of the applicant’s activities. It states that the applicant was involved in social work but says nothing about the nature of his involvement. While I acknowledge that [Mr C] was accused of involvement in attempting to revive the LTTE and arrested in 2021, the evidence suggests that this was a false allegation made to harass him for political reasons given his high profile. Neither the country information set out above or the contents [Mr C]’s letter suggest that the applicant would be at risk of similar treatment because he worked as a volunteer [Occupation 2] in 2013 or because he provided financial assistance to three families in [City 1] in 2013.

120.   After considering all of the evidence, I am not satisfied that the applicant was suspected of involvement with the LTTE or that he was detained because he was suspected of involvement with the LTTE or separatism at any time prior to his departure from Sri Lanka.

Does the applicant face serious or significant harm because of pro-LTTE or separatist sentiments imputed to him as a result of his volunteer work in [City 1]?

121.   After considering all of the relevant evidence, I am not satisfied that the applicant faces a real chance of suffering serious or significant harm if he returns to Sri Lanka as a result of his work as a volunteer [Occupation 2] or any other contact with former LTTE members in [City 1] prior to his arrival in Australia.

The applicant’s time in Colombo

122.   The applicant moved to Colombo to work after completing his studies in September 2014. At the hearing it was established that while in Colombo he had lived in a house with other Tamils from the north of the country and they were registered as residing at the house.

123.   During his interview with the delegate the applicant said that in April 2015 the CID came to his home and asked his housemates to provide details all of the residents, including the applicant. The applicant was at work. He said that he believed that the CID would have searched for his details online and that they would have become aware of his record in [City 1].

124.   The applicant said that after this incident he was stopped in the street by a man in plain clothes who said that he was from the defence force. He took the applicant’s telephone number and said that he would call him later to arrange an appointment. The man called a number of times to arrange an interview, but the applicant said that he was too busy to attend. Eventually the man told the applicant to nominate a time for the interview and threatened to harm his family if he did not attend. The applicant met the man in a room in the city in July 2015. He was questioned about the LTTE and told to disrobe so the man could see if he had any scars from fighting. The man sexually assaulted him then told him to leave. After that the man called several times, but the applicant avoided further contact by taking on three jobs and telling the man he was busy. According to the delegate’s notes the applicant became visibly distressed when this incident was discussed.

125.   The applicant said that in September 2015 his father told him that the authorities had questioned and threatened him on a number of occasions. He believed that his assailant had arranged for the authorities to do this as the problem appeared to have started after he was assaulted in July.

126.   The delegate accepted that the applicant had been sexually assaulted by an unknown man in Colombo. However, she did not accept that the man was connected to the Sri Lankan military or authorities. 

Evidence to the Tribunal

127.   At the hearing I observed that it appeared likely that the visit to his home in Colombo in April 2015 was part of routine monitoring of Tamils in the capital. The applicant said that he thought that the visit was most likely a random check, and he was not particularly concerned about it.

128.   I asked the applicant what he knew about the man who approached him in the street in 2015. He said that the man had briefly shown him an identity card in Sinhalese with the logo of the Defence Ministry. The man was wearing civilian clothes and said that he was from the CID. He did not use the applicant’s name when he stopped him in the street. He said that he knew about the applicant’s activities in [City 1], so the applicant assumed the man knew who he was. He gave the man his telephone number and when they spoke by phone later the man used his name. I observed that it seemed strange that the man would approach him in that manner rather than come to his home and observed that if the authorities had genuinely believed he was seriously involved in attempts to re-establish the LTTE it seemed likely that they would have arrested him. The applicant said that he now believed that the man’s aim was to get him alone and sexually abuse him. They met in an ordinary room rented by the man, not an official location. At the time he was not familiar with Colombo or what to do.

129.   I observed that it appeared that the applicant had been the victim of a terrible crime unrelated to any problems with Sri Lankan authorities, but he had not seen the man again and as it was now over seven years since the attack it did not appear to be relevant to his claim for protection. The applicant said that the man had continued to call him on his mobile phone and at work. He believed that the man had friends or contacts in the CID because he knew about his work in [City 1]. He said that while he was in Colombo the CID visited his father and asked him if the applicant was still involved in [assisting] people in Colombo. He believes that the man who attacked him in Colombo was behind these visits because he was the only person he had problems with at that time. He said that he thought the man believed that if the CID threatened his family, he would go back to him. He feared that if he returned to Sri Lanka the man would use those friends to locate him and take revenge because he had refused to meet him again.

Findings of fact

130.   I accept that the applicant was sexually assaulted in mid-2015 by a man who claimed to be from the CID. At the hearing the applicant said that he believed that the man had approached him in the street in order to trick him into a situation where he could assault him. This accords with his account of events. I also accept that the applicant believes that the man is from the CID or has contacts in the CID or security forces and that these institutions are prepared to do his bidding. However, the only evidence he has seen of the man’s identity or connection to the CID is the identity card with the logo of the Defence Ministry which he appears to have seen briefly and to have been unable to properly understand. He never met the man at a CID office or in the presence of other CID officers. He said that he believes that the man was from the CID because he knew what had happened in [City 1] and he could only have got this information from the CID. However, he also said that the man did not use his name when he first approached him in the street which suggests to me that the meeting was opportunistic rather than targeted the applicant because the man was aware of his background. In addition, as discussed above, I do not accept that the applicant was of particular interest to the authorities in [City 1] and therefore find the claim that the man had details of the applicant’s activities from the CID implausible.

163.   Fifthly, the applicant was advised that his case was being prepared for constitution and requested to provide any additional claims or information to the Tribunal in March 2022 and again in September 2022 and on 9 September 2022 he indicated that he did not intend to provide any further documents. While I understand that due to lengthy delays in processing applications many applicants and representatives wait until notified of a hearing before providing final submissions, if the applicant had been charged with a serious offence and a warrant for his arrest had been issued in 2020, I believe he would have provided this information to the Tribunal in a more timely fashion and would not have indicated that he did not intend to provide any further documents in September 2022.

164.   Sixth, for the reasons set out below I find that the summons dated 15 April 2020 is a fraudulent document. If the applicant had been charged with an offence, he would surely have been able to provide genuine documents relating to these charges. I find the fact that he provided a false document in support of his claims a strong indication that he is not a credible witness and that claims relating to these charges are not true.

165.   As noted by the applicant, the document headed “Summons/notice to an accused person” dated [in] April 2020 names [Mr D Title 1] as the accused person in the lower half of the document. In the submission provided in November 2022 the applicant claimed that [Mr D] was named in that section because the English version of the form requested the name of the complainant rather than the accused. I do not accept that the Sri Lankan courts would produce and use a printed form which contained this error. Furthermore, the translation provided by the applicant does not suggest that the English version is incorrect. And, as pointed out in the letter sent to the applicant on 25 January 2023, it is clear from the heading of the section which names [Mr D] that it refers to the accused person, not the complainant. I also note that according to the first entry on the document the complainant was the Attorney General, not [Mr D].

166.   In addition to these problems, I find the applicant’s post-hearing attempts to explain the problems with these documents unpersuasive. It is clear that the English entry at the bottom of the page is correct, and I find the claim that the police officer who delivered the summons to the applicant’s father told him that there was a problem with the English version of the entry lacks credibility. And while I acknowledge that even court staff can make mistakes when filling out forms, I find the claim that rather than name the accused, as clearly requested on the form, the officer filling out the form would incorrectly name the person who had made allegations against the accused. In reaching this conclusion I have noted the letter purportedly written by the Court Registrar. However, it is a typed document on plain stationery with a simple wet stamp which could have been produced by anyone with a computer and in light of the numerous significant problems with the applicant’s evidence I find that it is also a fraudulent document produced in an effort to overcome the problems with the summons dated [in] April 2020 and I have given it no weight. Finally, I have noted the receipt which states that the applicant’s father sent something to the Registrar of the Court. It may be that the applicant’s father sent something to the court, but I am not satisfied that it was a letter requesting that the Registrar explain the problems in the summons issued in April 2020.

167.   Considered in isolation none of the matters raised above would have been sufficient for me to conclude that his claims regarding the funds he had sent to [Mr D] were not credible. However, after considering all of the evidence and in light of my findings regarding the credibility of his earlier claims, I am not satisfied that he sent funds to [Mr D] or that he was charged with an offence related to attempts to re-establish the LTTE as a result of sending these funds. I find that these claims were also fabricated to support his application for protection in Australia.

168.   In reaching this conclusion I have considered all of the documents provided to the Tribunal relating to the claim that he has been charged with providing funds to re-establish the LTTE. However, in light of my findings regarding the credibility of these claims, DFAT advice regarding the availability of fraudulent documents in Sri Lanka and the fact that most if not all of these documents could have been produced by anyone with a computer, I am not satisfied that any of them are genuine. I believe that they were obtained or manufactured at the applicant’s request in order to support his claim for protection.

169.   I have also noted the document from RIA regarding money which the applicant transferred to his father between January 2018 and October 2022. I accept that this document is genuine. However, I do not accept that any of the money the applicant sent to his father was later given to [Mr D].

170.   Finally, I have noted the document which states that [Mr D]’s arrest had been reported to the Human Rights Commission and the article published in [Publication 2] [in] November 2022 which suggests that someone called [Mr D] had been arrested in March 2020 in relation to accusations that he had been involved in trying to recreate the LTTE. It may well be that someone of that name was arrested in March 2020. However, there is nothing in the article which confirms that the applicant was implicated in his activities and it does not alter my finding that he was not charged with offences relating to involvement with the LTTE in 2020.

Activities in Australia

171.   The applicant claims that he would face problems on return to Sri Lanka because of his participation in events likely to be supportive of the LTTE while in Australia.

172.   There is no mention of any involvement in any political or Tamil community events in Australia in the applicant’s written or oral submissions to the Department. In his November 2022 statement he claimed for the first time that he had attended pro-Tamil events such as the annual Martyrs Day Remembrance and Heroes Day celebrations in Australia.

173.   At the hearing I advised the applicant that it was my understanding that he had not been involved in any political groups or activities in Sri Lanka while in Australia. He confirmed that this was correct. Later in the hearing I observed that it was  eight or more years since he had been involved in the activities which he claimed had caused him problems in Sri Lanka and it seemed unlikely that the Sri Lankan authorities would be concerned about those activities if he returned to Sri Lanka now. He said that they might believe he was helping from outside. I advised him that it was my understanding the Sri Lankan authorities monitored the activities of overseas Tamil groups[9] and given his limited involvement in political activities in Australia it seemed unlikely they would suspect him of helping the LTTE. He said that they would be aware that he had attended events such as Heroes Day. I observed that while he may have participated in occasional events in Australia, he did not appear to have been politically active. He agreed that this was correct. I advised him that it was also my understanding that while low-level political activists might be monitored on return to Sri Lanka, they were unlikely to be arrested or face serious problems in Sri Lanka. The applicant said that he would be at risk of harm because of his activities in Sri Lanka and his involvement with [Mr D].

[9] See for example International Truth and Justice Project Report July 2015 cited in the applicant’s representative’s submission dated 23 November 2022

Findings of fact and consideration of claims

174.   I have significant doubts about the applicant’s claims regarding his attendance at events such as Heroes Day in Australia. As discussed elsewhere, I find that he exaggerated or concocted a number of his claims and there is no mention of involvement in these events in his submissions to the Department. While there is nothing remarkable about the fact that these activities were not mentioned in his initial application as it was lodged shortly after he arrived in the country, his interview with the delegate took place in December 2017, some 18 months after he arrived in the country, which suggests to me that he had not participated in events such as Heroes Day prior to that time. Furthermore, while his involvement in student politics in 2012 appears to have included defending the rights of Tamil students, according to his evidence he was never a member or supporter of the LTTE and never advocated separatism prior to his departure from Sri Lanka. At the beginning of the hearing, he confirmed that he had not been involved in any political groups or activities in Australia.

175.   It is clear from the evidence that the applicant has not been politically active in any meaningful way in support of Tamils rights in general or the LTTE or separatism in particular. At most he has been a passive participants in occasional social or cultural events which may have commemorated the death of LTTE members during the civil war. According to both the DFAT advice and the UK Upper Tribunal decision, this level of activity is unlikely to cause serious problems for Tamils on return to Sri Lanka, even if it is known to the authorities.

Does the applicant face serious or significant harm on return to Sri Lanka because of his activities in Australia?

176.   In my view the evidence does not suggest that Tamils face a real chance of experiencing serious or significant harm on return from countries such as Australia merely because they attended occasional Tamil cultural or social events.

177.   After considering all of the relevant evidence I am not satisfied that the applicant faces a real chance of suffering serious or significant harm on return to Sri Lanka because of his involvement in Tamil activities in Australia.

Tamil ethnicity

178.   The applicant claims that Tamils, in particular those from the north, are denied legal rights and at risk of serious or significant harm in Sri Lanka because of their ethnicity. In his initial application he said that the authorities were involved in genocide against Tamils and Tamils continued to be abducted and murdered, and that he feared he would be arrested or killed because he was considered to be a member or supporter of the LTTE.

179.   During the hearing I advised the applicant that it was my understanding that while some Tamils who were high-profile LTTE members or who continue to support a separate state may face problems in Sri Lanka, most former LTTE members and ordinary Tamils do not face a real chance of experiencing serious or significant harm because of their ethnicity. The applicant maintained that he would be at risk of harm but suggested that this was primarily because of his activities in Sri Lanka and his connection to [Mr D].

Findings of fact and consideration of claims

180.   I accept that the applicant is a Tamil and that he lived in [City 1] until October 2014. However, as discussed above, I do not accept that he sent money to a man called [Mr D] or that he would be of adverse interest to the Sri Lankan authorities because of his activities prior to his departure for Australia.

181.   There is nothing in the evidence before me which suggests that the applicant was denied legal rights or that he faced discrimination in areas such as education, employment or access to other services in Sri Lanka in the past or that he would be denied rights or face discrimination in these areas because of his ethnicity if he returned to Sri Lanka now. According to DFAT while Tamils remain under-represented in the public sector, this was not due to official discrimination but was largely the result of language constraints and disrupted education because of the war.

182.   It is certainly true that Tamils, especially from the north of Sri Lanka, often faced serious problems during the civil war because they were frequently seen as LTTE supporters. However, the war ended in 2009 and while areas once controlled or strongly influenced by the LTTE continued to be monitored and some high-profile former LTTE members and those who seek to re-establish the LTTE or promote separatism may still face problems, as discussed in detail above, the evidence does not suggest that most Tamils, including most former LTTE members, face a real chance of experiencing serious or significant harm because of their ethnicity or their place of origin in Sri Lanka today.

Does the applicant face serious or significant harm on return to Sri Lanka because of his Tamil ethnicity?

183.   After considering all of the relevant evidence I am not satisfied that the applicant faces a real chance of suffering serious or significant harm on return to Sri Lanka because of his Tamil ethnicity.

Failed asylum seeker who has spent time in Australia

184.   It has been submitted that the applicant would be at risk of harm on return to Sri Lanka because he would be returning as a failed asylum seeker who has spent time in Australia.

185.   According to DFAT failed asylum seekers may be questioned on arrival in some circumstances, such as if they departed illegally, are returning on temporary travel documents or are of interest to the authorities for some other reason. However, there is no suggestion that the Sri Lankan authorities have an adverse interest in returning citizens merely because they have or are suspected to have applied for protection.

186.   As noted by DFAT there is a large Tamil diaspora living in countries such as Australia and the UK. Some return to visit family or conduct business. The role played by overseas Sri Lanka Tamils during the civil war and the fact that some continue call for an independent Tamil state. The Sri Lankan authorities are likely to monitor members of the Tamil diaspora suspected of continuing support for separatism. However, the evidence does not suggest that retuning Tamil Sri Lankans are generally viewed as pro-LTTE or pro-separatist or likely to face problems on return merely because they have lived abroad.  or because they have spent time in Australia.

187.   The applicant left Sri Lanka legally on a genuine passport. While that passport has now expired, according to DFAT Sri Lankan citizens can obtain passports at Sri Lankan consulates with relative ease. There is nothing in the evidence before me which suggests that the applicant would be unable to obtain a passport and return to Sri Lanka in a normal manner. As discussed above and below, I am not satisfied that the applicant is of adverse interest to the Sri Lankan authorities for any reason. In these circumstances and given that applications for protection are confidential and I find it highly unlikely that the applicant would be identified as a failed asylum seeker, I am not satisfied that he would face questions or other significant problems on arrival in Sri Lanka or on return to his home in [City 1] because he has lived in Australia or because he has sought protection.

Does the applicant face serious or significant harm on return to Sri Lanka because of his status as a failed asylum seeker who has lived in Australia?

188.   After considering all of the relevant evidence I am not satisfied that there is a real chance that the applicant would suffering serious or significant harm if he returns to Sri Lanka now or within the reasonably foreseeable future because he has lived in Australia or because he has applied for protection.

Political opinion and consideration of claims cumulatively 

189.   Apart from helping his father to campaign for a seat on the local council in [City 1] as a representative of a TNA candidate there is no suggestion that the applicant has been involved in party politics in Sri Lanka. Nor is there any suggestion that he experienced any problems because of his involvement in that campaign or that he wishes or intends to become politically active in support of any political party or cause if he returns to Sri Lanka. There is nothing in the evidence before me which suggests that the applicant faces a real chance of experiencing serious or significant harm on return to Sri Lanka as a result of his involvement in political activities.

190.   It has been submitted or suggested that while the applicant has never belonged to or supported the LTTE he would be at risk of harm on return to Sri Lanka because he would be believed to hold pro-LTTE or pro-separatist opinions because he is a young Tamil from [City 1] and because of his involvement in student politics, his work as a [Occupation 2] in [City 1] and his association with former LTTE members, his involvement with [Mr D], his time in Australia, his participation in Tamil events in Australia and his status as a failed asylum seeker.

191.   As discussed above, I do not accept that the applicant has sent funds to a man called [Mr D]. I also find that he exaggerated or concocted some of his claims regarding his activities and the problems he faced before he left Sri Lanka. I accept that he is a Tamil from [City 1], that he was involved in student politics in 2012 and worked as a volunteer [Occupation 2] between about 2012 and 2014, that he has attended occasional Tamil cultural events in Australia and that he would be returning as a failed asylum seeker who had lived in Australia for some seven years.

192.   These claims have already been considered individually. I have also considered the possibility that when considered cumulatively they would cause the Sri Lanka authorities to view the applicant as some who holds pro-LTTE/pro-separatist views. However, I do not believe that this is the case.  As discussed above, I do not accept that the applicant’s activities prior to his departure from Sri Lanka caused him to be viewed as pro-LTTE/pro-separatist at the time he departed Sri Lanka and in my view the country information does not suggest that the fact that he has lived in Australia for several years and that he has attended occasional Tamil cultural events while in Australia would cause the Sri Lankan authorities to believe or seriously suspect that he is an LTTE supporter or a separatist. I note that according to his evidence he has not been politically active in Australia. According to information from DFAT and the Upper Tribunal the Sri Lankan authorities monitor Tamils living in countries such as Australia in a manner which suggests that they are likely to be aware of the applicant’s lack of any real involvement in politics and thus unlikely to view him with suspicion if he returns to Sri Lanka.

193.   In reaching this conclusion I have considered the applicant’s status as a failed asylum seeker. However, as discussed above while some failed asylum seekers, for example those who left illegally or who return on temporary travel documents, might be questioned on arrival, the evidence does not suggest that the mere fact that someone applied for protection while living abroad would have any real impact on their treatment on return to Sri Lanka.

194.   After considering the applicant’s claims individually and cumulatively, I am not satisfied that he would be viewed as a pro-LTTE or pro-separatist or as holding any other political view which would result in him facing a real chance of experiencing serious or significant harm on return to Sri Lanka.

Does the applicant face serious or significant harm on return to Sri Lanka for reasons of political opinions which he holds or which would be imputed to him?

195.   After considering all of the relevant evidence and considering the applicant’s claims individually and cumulatively I am not satisfied that that he faces a real chance of suffering serious or significant harm on return to Sri Lanka because of political opinions he holds or is believed to hold.

CONCLUSIONS

196.   After considering the applicant’s claims singly and cumulatively I am not satisfied that the applicant faces a real chance of suffering serious or significant harm for any reason if he returns to Sri Lanka now or in the reasonably foreseeable future.

197.   I am therefore not satisfied that he has a well-founded fear of persecution for any of the reasons in s 5J(1) and thus not satisfied that he is a person in respect of whom Australia has protection obligations under s 36(2)(a).

198.   I am also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm. I am therefore not satisfied that he is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

1. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).

   DECISION

200.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Roslyn Smidt
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.

…