1801490 (Refugee)

[2023] AATA 2417

1801490 (Refugee) [2023] AATA 2417 (9 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Mrs Valarmathie Murukaverl (MARN: 1572923)

CASE NUMBER:  1801490

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Justin Meyer

DATE:9 May 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 09 May 2023 at 9:21am

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion – suspected involvement with the Liberation Tigers of Tamil Eelam (LTTE) – particular social group – young Tamil male – illegal departure – failed asylum seeker – forced unpaid goods and service to the Army – detention – physical assault – fear of killing – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 46, 65, 424, 499
Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
MIAC v SZQRB [2013] FCAFC 33
Pan v MIEA (1996) 64 FLR 151
Prasad v MIEA (1985) 6 FCR 155

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

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 8 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 claims to be a citizen of Sri Lanka, applied for the visa on 24 July 2017. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant was a person who Australia owed protection on refugee or complementary protection grounds.

3.    The applicant appeared before the Tribunal in person on 6 April 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, who appeared by video.

4.    The applicant was represented in relation to the review.

Background

5.    The applicant provided the following details in his protection visa application. The applicant was born in [a location] in Batticaloa, Eastern Province, Sri Lanka on [date]. The applicant listed his religion as Hindu and his occupation as [an occupation 1]. He is single and has never been married. The applicant speaks, reads and writes Tamil and can speak, read and write English at an average level. In ‘other family members’ he listed [a relative] as living in Batticaloa, Sri Lanka. He has [specified family members]. [One specified sibling] lives with his parents in Sri Lanka and his brother is living in [Country 1].

6.    The applicant completed his [school grade] in [year] and undertook a [subject 1] course at a [training college] in Batticaloa [between specified dates]. From [year] to March 2012 he worked as a salesman at [a named business], in Batticaloa, Eastern province. He has held various [roles] in Australia, the most recent being in a [business] producing [products].

7.    The applicant departed Sri Lanka unlawfully by boat [in] March 2012 and travelled to Christmas Island, Australia, arriving [in] April 2012 as an unauthorised maritime arrival (UMA).

8.    The applicant’s migration history since arrival in Australia is as follows:

11 May 2012	Entry interview at Christmas Island Immigration Detention Centre(IDC)
7 July 2012	Protection visa application lodged
7 July 2012	PV Interview conducted at [a named detention centre]
28 August 2012	PV application refusal
17 September 2012	RRT review of decision commenced
17 December 2012	Merits review interview conducted
12 February 2013	Decision remitted with direction
[February] 2014	Applicant found to be owed protection, but application refused on other criteria
24 July 2017	Safe Haven Enterprise Visa (SHEV) application lodged
[September] 2017	Section 46A application bar reversed. Application allowed
14 December 2017	SHEV Interview conducted in Melbourne, Victoria

Identity

9.    The Tribunal is satisfied that the applicant is a citizen of Sri Lanka and accordingly his claims will be assessed against Sri Lanka.

Claims

10.      The applicant made the following written claims in his protection visa application:

The county to which I fear returning

·I fear returning to Sri Lanka.

Why I left Sri Lanka

·The Liberation Tigers of Tamil Eelam (LTTE) had accused my paternal grandmother of helping the Sri Lankan Army (SLA). In August 1991, she was shot and died.

·On the other hand, my family was harassed by the SLA. Once in 1992, my father was arrested in a round up carried out by the SLA. The purpose of the roundup was to interrogate the village men and identify anyone with LTTE connection. My father was released after my grandfather told the SLA that his wife was shot and killed by the LTTE.

·The LTTE had a camp a short distance from my house. After the cease fire was broken between the SLA and LTTE, the LTTE members would often be engaged in open fire with the SLA. During this time, our lives were in danger and we would hide in our house.

·I had completed up to [school grade] and then completed a [subject 1] course in a [college] in [year].

·After completing my studies, I had opened a small [products 1] store in [year]. At that time, my father operated [service 1] shop. Both of our business were on the same land of our family

·I was being harassed by the Criminal Investigation Department (CID) and SLA from the time I had opened the store. They would often come to our stores and forced us to [service] their equipment. If my father fails to [assist], they would take equipment from us. They never paid us for the work or the equipment they took. They also took [products 1] from my store and never paid. We never raised a word against them because we knew they would kill us. Their harassment got worsen during 2010 - June 2011.

·Around June 2011, the CID came to my store while I was not present. I had gone to the local temple. My father and [a] brother were at the store. When I returned, my father told me the CID had come to the shop and accused me of selling [product 1] with LTTE [content]. They took some of my equipment, [product 1] and a computer.

·The next day, my father went to the CID camp. They gave my equipment back, however they told my father that they are still suspicious and will check on me.

·The CID continued to visit my store. Their visits started to be interrogations. They would ask us if we are associated with the LTTE. They accused me of selling LTTE [content]. They also kept taking my [products 1].

·Around September 2011, the CID came to my store and took my equipment and [product 1].

·The next day, my father went back to the CID camp. When he returned home, he told us what happened. Apparently, my father asked the CID why they were suspecting us and interrogating. The CID officer did not answer but asked my father to sit and wait. Sometime later, the head CID officer came and demanded my father to give him [amount] Sri Lankan rupees. My father told them why we need to pay when we have not done anything. The CID threatened to harm based on LTTE links. My father paid [smaller amount] rupees after negotiation.

·[In] March 2012, the CID came to my shop. My brother was at the shop at that time. I was not presented. When I returned to the shop, my brother told me that the CID had thrown him out of the shop and interrogated him. Apparently, they kept asking if father and I were supporters of the LTTE. My brother told them our family has no connections with the LTTE. The CID refused to believe him and told him that my father and I must report to the camp immediately.

·When my brother told me, what happened, I got scared. I feared for my life. My father also told it was not a good idea for me to go to the CID camp. He went to the CID camp alone. This time my father was beaten and interrogated about LTTE links. They released him but asked me to come. I was scared so I did not go to the CID camp.

·Three days later, the CID officers came to my shop and beat me badly. They threatened to kill me if they ever see me in the shop. I was scared so I did not go to shop afterwards. Since our family house is also in the same land as the shops, I went to my [Relative A’s] place. I felt eventually the CID would find me and kill me. My father thought my life will be safe if I flee the country. He had made some arrangements through his friends for my travel.

·[In] March 2012, I travelled to Colombo and left Sri Lanka by boat on [a day in] March 2012.

·After I left Sri Lanka, the authorities started harassing my brother. My father had sent him to [Country 1] in November 2012.

·My father had closed both shops.

What I fear may happen to me, by who and why, if I return to Sri Lanka

·I cannot return to Sri Lanka. I am young Tamil male who is accused of supporting the LTTE.

·I fear I am at risk of being harmed by the Sri Lankan authorities. I will be detained, interrogated and killed by the SLA and/or the CID.

·I will be harmed because of my imputed political opinion of opposition to the Sri Lankan authorities. I will be imputed with this political opinion due to my:

oTamil ethnicity;

oIdentified as a LTTE supporter;

oLeft my village without the permission of the Sri Lankan authorities'; and

oIllegal departure from Sri Lanka.

·I had suffered harassment at the hand of Sri Lankan authorities. As result I had fled Sri Lanka.

·My day to day life was disturbed by the Sri Lankan authorities. I was forced to close my business.

·Although there is a new president in Sri Lanka, the treatments are the same for former LTTE members and supporters.

·Under the PTA, we Tamils (this law applied to Tamils only) can be detained and jailed at any time with no reason given or access to a lawyer to help us.

·I fear this will happened to me if I am forced to return.

Why I think the authorities of Sri Lanka cannot or will not protect me if I were to go back:

·I cannot seek protection from the Sri Lankan authorities, as it is the Sri Lankan authorities that I fear.

Why I think relocation to another area in Sri Lanka would still befall me to the same harm

·The Sri Lankan authorities operate with impunity throughout Sri Lanka and there no nowhere in Sri Lanka I could go to avoid harm.

Other reasons I cannot return to Sri Lanka - Complementary protection

·I cannot return to Sri Lanka because I fear I will be killed, tortured and/or subjected to cruel, inhuman and degrading treatment.

11.       The applicant’s representative made written submissions at the time of application and presented supporting country information. These submissions provide, in summary:

a.The applicant is Tamil, a Hindu and a single male from Batticaloa, Eastern province of Sri Lanka.

b.The applicant has a profile associated with the LTTE due to his ethnicity and his father’s and his own business. He is a person of interest to the Sri Lankan authorities.

c.The applicant escaped the authorities and fled Sri Lanka in 2012.

d.His [brother] also faced persecution by the authorities and fled Sri Lanka.

e.The applicant’s father closed their business.

f.He has a well founded fear of persecution for reasons of race and member of a particular social group. There is a real chance that he will be persecuted because of his Tamil ethnicity and because he is suspected as an LTTE supporter and a failed asylum seeker.

g.The real chance applies to all areas of Sri Lanka. The applicant will be identified by his National identity card and cannot live in Sri Lanka without coming to the attention of the authorities.

h.The persecution involves serious harm to the applicant and the persecution involves systemic and discriminatory conduct.

i.If he returns to Sri Lanka he will suffer serious harm as there will be a threat to his life, he will suffer significant physical harassment and he will suffer significant physical ill treatment. The applicant and his father suffered such treatment from the authorities before the applicant fled. It is certain he will be persecuted on return.

j.The applicant fears he will be detained under the Prevention of Terrorism Act (PTA) as he is perceived as being an LTTE supporter. Due to this profile, there is a real risk he will suffer cruel punishment. The Human Rights Watch (HRW) 2016 annual report observes that the PTA has been used to hold suspected LTTE members and others without charge or trial for years and that the law has been used to detain and torture people suspected of links to the LTTE, including forcibly returned asylum seekers.[1]

[1] HRM Annual Report 2016, 27 January 2016; Prevention of Terrorism Act and Politically Motivated Torture p 530

k.Due to continued harassment from the authorities, he will not be able to open another business or be employed by anyone in Sri Lanka. His business has been closed down by his father and therefore he will suffer economic hardship that threatens his capacity to subsist. He will be denied basic services and the capacity to earn a livelihood will threaten the applicant’s capacity to subsist. He has no support system in Sri Lanka.

l.The applicant satisfies s 36(2)(aa) of the Act as there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm if he is removed to Sri Lanka. He has suffered persecution in the past. His brother fled for the same reason. He fears he will be tortured and killed, subjected to cruel or inhuman treatment or punishment and will be subjected to degrading treatment or punishment.

m.He will not be able to seek state persecution as the perpetrators are the state. He will not be able to relocate to escape the risk.

n.The country information supports a finding that there is a real risk of punishment or reprisal from the authorities. The authorities believe that he is a supporter of the LTTE and he will be a contributor if there is a resurgence of the LTTE. The risk is not a risk faced by the population generally.

o.The applicant’s evidence is credible, plausible and consistent.

p.He will be persecuted as an imputed LTTE supporter and also as a failed asylum seeker who departed Sri Lanka illegally. He will be charged under the Immigrants & Emigrants Act (I&E Act). The persecution will start on his return home and will be systemic and discriminative. Country information shows that violence is still occurring despite the change of government. There is still a significant military presence in the Northern province supporting his fears of the authorities. He will come to the adverse attention of the authorities when trying to prove his identity. His perceived links to the LTTE give rise to the need for protection as he is at real risk of punishment or reprisal from the authorities. Tamils who return to Sri Lanka are under surveillance and there is still an extensive network of Tamil informers. Clearing the airport is no guarantee of his safety. There are allegations of torture which are difficult to verify because they are made anonymously for fear of reprisals.

q.He has no support system in Sri Lanka as his father will not want to put his [family] at risk. If he is detained, the ICRC may not get access to him before he suffers significant harm.

r.The applicant will be forced to go through rehabilitation where he would suffer significant harm because of his imputed political opinion.

s.If the applicant returns to Sri Lanka he would come to the adverse attention of the Sri Lankan authorities. He would face persecution due to his imputed political opinion and particular social group and as a perceived former LTTE supporter on following bases:

i.Tamil ethnicity

ii.Young male

iii.From Eastern Province

iv.Imputed political opinion as a LTTE empathiser

v.Seen as a possible contributor to the re-emergence of the LTTE.

12.       The applicant provided the following statement dated 29 March 2022 to the Tribunal in advance of the hearing (reproduced below):

I, [name], [occupation 1], and currently residing at [an address] in the State of Victoria make the following statement:

Summary of my claims

§The following is only a summary of my claims for protection. It is not an

exhaustive statement of the reasons why I cannot return to my country of
origin. I will provide further information in relation to my protection claims
during my interview with the Administrative Appeals Tribunal (AAT).

§I do not have any new claims. All the information given to the Department of

Home Affairs are true and correct.

Background:

• I am Tamil and a Hindu. I am a male, never validly married and have no children.
• I was born on [date] in Batticaloa district in the eastern province of Sri Lanka.
• My parents are residing in Batticaloa, Sri Lanka. My brother is in [Country 1]. [Another sibling] is married and living in another village in Batticaloa.
• I studied school up to [school grade] and completed a [subject 1] course in Sri Lanka.
• I have worked in my own [product 1] shop in Sri Lanka after completing my school. I have been doing labour jobs in Australia.
• I do not have a support system in Sri Lanka or any other countries.
• I am a citizen of Sri Lanka. I do not have citizenship or rights to reside in any other country.
• I fled Sri Lanka [in] March 2012 to protect my life.

The county to which I fear returning

• I fear returning to Sri Lanka.
• I fear of being persecuted by the Sri Lankan authorities (authorities), including the Sri Lankan Army (SLA) and Criminal Investigation Department (CID).
• I will be significantly harmed by the authorities for imputed political opinion.
• I completed my studies in [year] and opened my own [products 1] store in the family home. My father was operating his own [shop] in the same store, at the back of the shop building.
• I was being harassed by the CID and SLA from the time I had opened the store. They came to our stores frequently and forced my father to [service] their equipment. When my father failed to [assist], they took equipment from his [shop]. The CID or the SLA never paid us for the work or the equipment they took.
• The CID and the SLA also took [product 1] from my store and never paid. We could not say anything out of fear for our lives. Their harassment got worsen during 2010 – June 2011.
• Around June 2011, the CID came to my store while I had gone to the local temple. My father and [brother] were at the store. When I returned, my father told me the CID had come to the shop and accused me of selling [products 1] with LTTE [content]. They also confiscated some of my equipment, [products 1] and a computer.
• The next day, my father went to the CID camp. They allowed my father to take the equipment, however they threatened saying they are still suspicious and will check on me.
• The CID continued to visit my store after the incident. Their visits started to be more like interrogations. They would ask us if we were associated with the LTTE.
• They accused me of selling LTTE [content]. They also continued to take [products 1] from my shop. I could not do anything out of fear.
• The reason why the authorities were suspecting us was the location of our shop. Our home & shop was located [near] a school. The LTTE had a practice of targeting the school children. The CID and the SLA was suspecting that we were helping the LTTE.

• Around September 2011, the CID came to my store and took my equipment and [products 1] again.
• The next day, my father went back to the CID camp. My father wanted to know the reason behind the harassments. The CID officer did not answer but asked my father to wait. Sometime later, the head CID officer came and demanded my father to give him [amount] Sri Lankan rupees. My father told them why we need to pay when we have not done anything. The CID threatened to harm based on LTTE links. My father paid [smaller amount] rupees after negotiation.
• The CID returned to my shop in March 2012 while I was not present. My brother was taking care of the shop at that time.
• When I returned to the shop, my brother told me that the CID had thrown him out of the shop and interrogated him. My brother said the CID kept questioning him about LTTE association. My brother said he told the CID that we had no LTTE association. The CID refused to believe my brother. They have asked him to tell me and my father to report to the camp immediately.
• When I heard this, I got scared. I feared for my life. My father also told it was not a good idea for me to go to the CID camp. He went to the CID camp alone. My father was beaten and interrogated about the LTTE. They released him but told him to send me. I feared for my life, so I did not go to the CID camp.
• Three days later, the CID officers came to my shop and beat me badly. They threatened to kill me if they see me in the shop again. I was scared, I did not go to shop after that incident.
• I also left home and went into hiding at my [Relative A’s] house. I knew it was only a temporary escape and I had to flee the country to protect my life. Few days later, my father organized my travel from Batticaloa to Colombo. I stayed in Colombo for few more days before fleeing the country.
• I left Sri Lanka by boat [in] March 2012.
• After I left Sri Lanka, the authorities started harassing my brother. My father had sent him to [Country 1] in November 2012.
• My father had closed both shops to avoid adverse attention from the authorities.
• I cannot return to Sri Lanka, as I fear for my life from the Sri Lankan authorities.

What I fear may happen to me, by who and why, if I return to Sri Lanka

• I cannot return to Sri Lanka. The Sri Lankan authorities suspect me of having LTTE association.
• I fear I would be abducted, harassed, and killed by the Sri Lankan authorities.
• I fears if I am forced to return to Sri Lanka, I will be perceived as an LTTE associate and punished under the Prevention of Terrorism Act (PTA). I will face real risk of being cruel punishment. The Human Rights Watch (HRW) annual report 2016, Sri Lanka observed that ‘The PTA has long been used to hold suspected LTTE members and others without charge or trial for years…. The law has been used since the end of the war, including under the present government, to detain and torture people suspected of links to the LTTE, including forcibly returned asylum seekers.’[2] My fear got worsen after hearing about the recent arrest of Mayor of the Jaffna Municipal Council Manivannan Visvalingam uder (PTA) by the Terrorism Investigation Division (TID).[3]
[2] The Human Rights Watch (HRW), annual report 2016, Sri Lanka, 27 January 2016, (Prevention of Terrorism Act and Politically

[3] Jaffna Mayor arrested for ‘promoting LTTE ideology’, 09 April 2021, date accessed 25 March 2022

Why I think the authorities of Sri Lanka cannot or will not protect me if I were to go
back:

• I cannot seek protection from the Sri Lankan authorities, as I fear from the Sri Lankan authorities.
• I do not believe that the Sri Lankan authorities would give me protection.
• I also fear the current government of Sri Lanka. Both Rajapakse brothers are accused of condoning sexual violence and extrajudicial killings allegedly by Lankan security forces during the war.
• Current Sri Lankan government is under global scrutiny on human rights issues. Sri Lankan’s newly elected President Gotabaya Rajapaksa is known as the unforgiving, ruthless man. His own family addresses him as the ‘terminator’. Sri Lankan Tamils are in fear since he was elected as the new President of the country.
• I am more scared after hearing that there is a fear that Sri Lanka is witnessing the first signs of and symptoms of ‘Myanmarization’.[4]
• In Feb 2018, a Sri Lankan military officer who motioned a death threat to Tamil protesters in London.[5] He was a commander who led troops in a military offensive in 2009, that massacred tens of thousands of Tamil civilians. This shows the mentality of the Sri Lankan authorities. This proves how spitefulness the authorities treat people with profiles in Sri Lanka, when he can threaten civilians in a foreign land. I fear for my life in Sri Lanka.

Why I think relocation to another area in Sri Lanka would still befall me to the same harm

• The Sri Lankan authorities operate with impunity throughout Sri Lanka. Therefore, there is nowhere in Sri Lanka I could go to avoid harm.
• The persecution which the applicant fears in Sri Lanka is both authorized and perpetrated by the Sri Lankan government (including the current government) and its authorities. Therefore, there is no effective state protection for the applicant anywhere in Sri Lanka.
• I cannot live or move to another area without using my national identity card or registering with the local government officer. This would alert the Sri Lankan authorities.
• If I return to Sri Lanka, there is a real chance that I will suffer significant harm amounting to persecution for reason of imputed political opinion.
[4] ‘No Myanmar In Sri Lanka!: The Arrest of the Mayor of Jaffna is a market event’ Colombo Telegraph, 09 April 2021,
[5] Sri Lankan officer that threatened Tamil protestors implicated in war crimes; 05 Feb 2018,

My response to Delegate’s findings dated 08/01/2018

• The Delegate stated that he did not accept that my father and I had operated separate shops from the same premises and my work role of selling [product 1] was a sub-section of the family business that [did services 1]. This is not true. Our family home has a big front yard. It has a big store building. The front of the building was my [product 1] shop. The back of the same building had a room, which was used as the [service shop] of my father. Therefore, I was the front person at the shop. After completing my studies, I could not find employment outside. My parents organized and started this business for me. I was planning to develop the business and become a successful businessperson.
• The Delegate did not accept that I was called to the CID camp to be interrogated or the CID visited my shop three days later to beat me badly for not attending the CID camp voluntarily. I believe the Delegate did not understand how the CID works in Sri Lanka. The incidents with the CID happened after the end of war. At that time, the CID was maintaining a good image in front people. They do not work in the legal way like the Sri Lankan Police. They did not arrest or abduct people in the presence of villagers at daytime. They usually order people to come to their camp first. If people refuse, then they go missing and never returns. This is the reason why I was not taken by them when they visited my shop.
• The Delegate did not accept that I went in to hiding at my [Relative A’s] house in our village. I believe the Delegate did not understand my fear. There were many incidents where the CID had abducted and killed people when they refused to visit their camp for interrogation. This was a common practice by the CID in our area. My parents and I feared that I would also get abducted and get killed by the CID, after I refused to go to their camp. Therefore, I went hiding into my [Relative A’s] place. My [Relative A’s] house is in a regional area of [a named locality], Batticaloa. It is a remote area with less or no presence of the authorities. My parents sent me there for few days, while they made the arrangements for my departure from Batticaloa to Colombo.

13.       The applicant’s representative made written submissions at the time of application and presented supporting country information. These submissions provided, in summary:

·Sri Lanka Country Information Report No. 3, 15 June 2021. Combined Refugee Action Group, Geelong, Victoria

·Jaffna Mayor arrested for ‘promoting LTTE ideology’ Meera Srinivasan APRIL 09, 2021 23:48 IST Tamil condemns arbitrary arrest of journalists 10 April 2021 12:48 pm Terminator': how Gotabaya Rajapaksa's ruthless streak led him to power | World news | The Guardian 04/12/2019 Myanmar In Sri Lanka!’: The Arrest Of The Mayor Of Jaffna Is A Marker Event April 9, 2021 Dayan Jayatilleka, Colombo Telegraph  FOR A PROTECTION VISA

14.       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.

15.    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.

16.    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).

17.    Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

18.    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

19.    In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

Evidence at hearing

20.The applicant gave evidence at the hearing, differently constituted on 6 April 2022. The Tribunal, upon the matter being reconstituted to another member, wrote to the applicant on 8 March 2023. The applicant was informed that the matter had been reconstituted to a new presiding member, that this was for the applicant’s information only and he did not need to take any action. The applicant was informed in writing that if there was any additional information relevant to his case that he wished to inform the Member about he could contact the Tribunal. He did not take up this opportunity, which leads to no adverse inference on the part of the Tribunal.

21.The Tribunal took detailed oral evidence from the applicant at the hearing. On the basis of the evidence before it, the Tribunal is satisfied that the evidence adduced no new claims and that the claims set out above are his only claims. The applicant confirmed that there were no other bases on which he was claiming protection.

22.The applicant confirmed that he has no convictions and is not wanted in relation to any criminal offences in Sri Lanka.

23.The applicant stated that he was born in Batticaloa and lived there with his parents until coming to Australia, except for a short period of about 10 days when he was hiding at his [Relative A’s] place. His parents still live in the same house. [Another sibling] is married and still lives in Batticaloa with [family]. His brother moved to [Country 1] about two to three years after he left for Australia. He has never been married and does not have any children. He is in love with a woman in Australia but the uncertainty around his visa is causing issues with her family. He completed his [school grade] and then commenced a course in [subject 1] at a [college] which he travelled to by bus. He did not complete it because of LTTE violence in the area at the time and his parents were reluctant for him to travel.

24.After he withdrew from the course, he opened a shop with his father in [year]. His father operated [service 1] business at the back of the shop and he sold [specified products] and also sold [product 1].  Because he was in the front of the shop, whoever came in for [service 1] had to go through him. He would take all the payments and they would divide the proceeds later. His business had much higher volume than his father’s business. The shop was located at the front of the family home. It was on the main street [near] the school but was about one to two kilometres away from other shops. His grandfather lived about 50 to 100 metres away. There were other houses about 500 metres away.

25.In response to questions about the claimed events that resulted in the applicant leaving Sri Lanka, the applicant provided the following account. The CID would frequently come to the store to ask his father [for service 1]. The [jobs] were [personal], not army [work]. He was not paid for the [services]. They would take some of his [products 1] and demand cash in return. They would come about once or twice a month. If they didn’t give them the cash they would demand more the next time. Once in 2011 or 2012 they asked for [amount] rupees but his father intervened and they accepted [smaller amount] rupees. The problems started not long after they opened the shop in [year].

26.When asked what would happen to him if he did not pay the bribes he stated that they would ask him to report to the camp. He did not want to go to the camp because once his father had gone there and faced a lot of problems. He said when he did not report to the camp they came to the shop to look for him but he was not there. If he had been there he believes he would have been taken to the camp and never returned home.  He heard about this happening to others.

27.When asked for further details about his father’s attendance at the camp, he stated that his father would sometimes go to the camp to [service] [their equipment] and was mostly treated well by the CID but that stopped after he refused to give them money one time when they came to the shop and then they treated him rudely. They asked his father about his whereabouts and threatened his father with the applicant’s safety.

28.When asked why they were interested in where he was, the applicant responded that they had doubts about him and suspected he was affiliated with the LTTE because the shop was across the road from the school and they believed he was selling [product 1] with LTTE information to the school children and was trying to induce them to support the LTTE. When asked why they thought he was involved in the LTTE he stated that it was because of the school children, they believed he might try to brainwash them. The LTTE was actively trying to recruit people at the time to strengthen the movement.

29.When asked if the CID ever found anything to make them think he was working with the LTTE or affiliated with the LTTE or an LTTE sympathiser, the applicant stated that they couldn’t find anything in the shop, so they seized his computer and some [products 1]. There was nothing on the computer or on the [product 1] and they gave the computer back but still warned him that they would continue to watch him. They continued to demand money and harass him and his father. He believes others in the community made up lies about him.

30.When asked what the CID may have heard from others in his community, he stated that in his community there is a lot of jealousy and people can’t stand others becoming successful. They wanted to undermine his business so they told the CID and the army false stories. His parents are saying that if he goes back to Sri Lanka there are still people who will want to say bad things about him and cause more problems if he returns. They are Tamils but they are cooperating with the authorities to have a good life there. When asked if his father was suspected or accused of being an LTTE member he stated that he was mainly the target as a young adult Tamil male. His father was married with children and so it was less risky for him.

31.When asked whether he was ever arrested or detained by the authorities, he stated that they had tried a few times but he had evaded them. Once they came to his shop and pulled his shirt and told him that he had to go to see them at the camp. They left after he told them he would come. He never went and soon after left for Australia.

32.When asked if his father was ever arrested or detained, he stated that they mainly wanted him not his father. His father would go to the camp and he was questioned there and told to get the applicant to go to the camp.

33.When asked about his brother and whether he was ever arrested, detained or harassed by the authorities he stated that they mainly wanted to target [him]. After he left, his brother was the target and so his parents arranged for him to travel to [Country 1] immediately. When the Tribunal noted that the applicant had earlier stated that his brother had left for [Country 1] two or three years later, not immediately, the applicant stated that when he left for Australia he was [age] years old. His parents were then worried that his brother would be targeted and protected him. They didn’t have money to send him overseas so the applicant sent money that he earned in Australia to help them and they then sent his brother to [Country 1] about two to three years later.

34.When asked why he believed he would still be of interest to the authorities he states that after he left his parents told him that they went to his house to look for him and threatened his parents that they would get to him. He is also worried to return because they might think he is wealthy because he has been in Australia for so long. He stated that both he and his brother are targets now.

35.When asked why his brother is scared to return to Sri Lanka, the applicant stated that it is for the same reasons – he fears he will be suspected of affiliation or involvement with the LTTE. When asked for clarification about what he feared about earning money in Australia he said, his main concerns are the issues he experienced before he left, but he also fears that if he goes back he will be targeted by the informants again and they will say that he is wealthy and create problems for him.

36.When asked about the circumstances of his departure from Sri Lanka he stated that he went to his [Relative A’s] house and stayed there for about 20 days but was scared that they would find him there and so he and his father travelled to Colombo and got assistance from one of his father’s Sinhalese friends to depart.

37.When asked how the applicant financed his travel to Australia, the applicant stated that they didn’t have the money to pay for the boat at the time, but the people got his father’s details and his father sold a block of land and some of his mother’s jewellery and paid them later.

38.When asked what he fears will happen to him on return to Sri Lanka he stated that they will find out who he is and where he’s been as soon as he lands. As soon as he goes back to his village the other villagers will know he is back and will be jealous of him. As soon as the CID know he’s back they will check his records and see his history. He will be able to live peacefully at home for a few weeks but then the issues will start and if he leaves the house they will interrogate him and torture him and he will go through trauma because that is how people are treated there. The government that was in power in 2007 and 2008 is the same government now. He knows how they treated people then and he believes he will be treated the same way if he returns. The CID and the police are given more power and can do anything they want.

39.When asked if the authorities continued to visit and/or question his father, mother or [sibling], the applicant stated that after he left they authorities would regularly visit his shop and chat to his father. This is why he closed the shop. When asked how his parents were supporting themselves in Sri Lanka he said he and his brother were sending money. The village people know he is receiving money from overseas.

40.When asked if his father had ever thought about leaving Batticaloa he stated that he had thought about it, but he doesn’t want to leave his home town and he would prefer to die there. When it was put to the applicant that his father did not want to leave because he was no longer facing problems, he stated that he is still facing problems but because he was born and bred there he is reluctant to settle anywhere else.

41.When asked where he would go if he returned to Sri Lanka, he stated that he would go back to where he was born and where his parents live even though he faced trouble there in the past. When asked why he wouldn’t consider relocating elsewhere such as Colombo he stated that if he returns they will immediately find where he is no matter where he goes. He can’t avoid anything by moving to Colombo. He might visit his parents one day in Batticaloa and the people would find out and the issues would start.

42.The Tribunal asked whether the applicant believed that he would be harmed as a consequence of his Tamil ethnicity. In response, the applicant stated that because of his profile as a single male of Tamil descent he is a target for the authorities because they consider everyone to be associated with the LTTE.

43.In response to further questions about why the applicant believed he was imputed to be associated with the LTTE, the applicant stated in his village there were lots of people – the CID, the police, the army and the LTTE and it was a very volatile environment. There is a perception that every Sri Lankan Tamil supports the LTTE, especially young men. He did not help the LTTE but so many people were suspected of helping the LTTE regardless. He confirmed that he had never trained with the LTTE and had never worked for them or with them. When asked whether he was ever approached to join the LTTE, he stated that in around [years] he was doing the course at college he was approached and asked to join them, but his father counselled him against it and he took his father’s advice because he was good boy.

44.When asked if he had any specific claims associated with being a Hindu he stated that most of the Sinhalese are Buddhist and the main target for them is young Tamil men. The main issues he faces his because he is a Tamil and they are acting on information from village informants that he is affiliated with the LTTE. He confirmed that they had never found any evidence of any association on his computers or [products 1].

45.The Tribunal noted that it was finding it difficult to comprehend why the authorities would want to arrest or detain the applicant when, on his evidence, they had seized his laptop and [products 1] and later released them because they did not substantiate any suspicions of LTTE involvement. In response, the applicant stated that the main reason is that the LTTE recruited lots of young adults and that’s the main reason why they imputed his association with the LTTE and because of informants spreading false information. He stated that there were paramilitary groups working with the government to identify LTTE members. He stated that they would come and be friendly to people, collect information and pass it back to the authorities. The Tribunal also noted that on his evidence, the applicant’s father had been cooperating with the authorities during this period, by helping [with various services 1]. The Tribunal asked why, in these circumstances, the authorities would consider that he was involved in the LTTE and/or would want to harm him when he and his father were providing a service and ostensibly cooperating with the authorities. In response he stated that even though they were helping the CID they still had a suspicion about him and when they asked him questions he had ‘fear on his face’ and that made them more suspicious.

46.The applicant was asked about his activities in Australia and whether he had engaged in any activities that might come to the attention of the authorities. The applicant stated that he had not. He confirmed that he was not involved with any diaspora groups in Australia and had not been involved in any protests or other activities but he felt strongly about what the government is doing in Sri Lanka.

47.The Tribunal raised with the applicant some concerns it had with the applicant’s evidence, identifying inconsistencies between his oral evidence and previous evidence to the Department and previous written statements. The Tribunal noted that it is expected that the applicant gives a consistent account of his circumstances and that the inconsistencies may lead the Tribunal to doubt the truthfulness of the applicant’s evidence and that if material this may be the reason for affirming the decision under review. The Tribunal noted that the applicant had stated that his father had not been arrested but in his previous evidence had stated that he was arrested and his grandfather helped to release him. The Tribunal noted that his account of when the CID came to the shop when he wasn’t there, he had omitted details provided in earlier written and oral evidence about what happened to his brother on that day, specifically he had not stated that he was hurt or interrogated by the authorities when he and his father were in hiding. The Tribunal noted that the applicant had also not given evidence regarding the circumstances surrounding his grandmother’s death. The Tribunal raised with the applicant that he has provided new information regarding the involvement of informants in the village. The Tribunal raised with the applicant that he had told the Department that his father had sold the business to fund his travel whereas he told the Tribunal he had sold a block of land and jewellery.

48.In response, the applicant stated that he was responding to the Tribunal’s questions and that the Tribunal had not given him an opportunity to tell all the details. He did not want to talk a lot, just respond directly to the Tribunal’s questions. The Tribunal noted that he was given an open opportunity to tell me what he wanted about his claims. In relation to people in his village acting as informants he said that there are many people in his country who will try to undermine people who are doing well out of jealousy. He stated that they would know he and his brother are doing well and that is why they would approach the authorities. In relation to paying for his travel to Australia, he stated that he may have got confused, and that his father sold a block of land adjacent to the business and closed the business but did not sell the business.

49.The Tribunal noted that it was difficult to understand why the CID would still be interested in him 10 years later or suspect him of LTTE involvement if they didn’t find anything at the time. In response he stated that life has not changed in his village. The same people are there. They will investigate him again and will take revenge on him for leaving and will kill him. They will bring everything back up.

50.The Tribunal confirmed his three main claims were his Tamil ethnicity, his imputed LTTE connection and that he was a failed asylum seeker who had departed illegally.

51.The applicant raised independent country information with the applicant, including the most recent DFAT Country Report on Sri Lanka dated 23 December 2021 (the DFAT Report). The Tribunal noted that the security situation in Sri Lanka had improved significantly since the end of the civil war, particularly in the North and the East and that while there were some restrictions on travel imposed to combat COVID-19, travel is no longer restricted. The Tribunal noted that while there is still a significant military presence in the north but military involvement in civil life has decreased since the end of the war.[6] The Tribunal noted that Tamils can and do engage fully in public life, including those that were former LTTE officials or affiliates and do not face official discrimination on the basis of ethnicity in public sector employment.[7] In response, the applicant stated that there are police and army camps everywhere and that if there are no problems in his country then why are they needed. He stated that he is not sure where DFAT gets this information and they don’t know what happens inside his country.

[6] DFAT Report – Sri Lanka, 23 December 2021 [2.48] – [2.55]

[7] Ibid [3.4] – [3.7]

52.The Tribunal noted further that many Tamils, particularly in the North and the East reported monitoring, harassment, arrest and detention during the war and that security forces imputed LTTE support based on ethnicity. However, the Tribunal noted that while some monitoring continues, including by local informants in the community, this is particularly associated with politically sensitive issues and that the use of physical violence is not common and ordinary Tamils living in the north and east face a low risk of official harassment.[8] The Tribunal noted that this suggests that while monitoring occurs it would not be at the level that would constitute serious or significant harm and that this suggests that the applicant could return to Sri Lanka without facing the harm he fears. In response he stated that while others may be at lower risk, he would still be at risk because of his background and imputed LTTE affiliation. The Tribunal noted that the country information suggested that he would not be at risk even if he was imputed with LTTE connections. In response he stated that high profile former members are protected because they are in politics and are high profile whereas lower profile people go missing and no one ever knows what has happened to them. Others are disabled from the war and there is no point in the government going after them. He has heard that people who return from overseas are accused of other crimes such as drugs and they find any reason to harass and detain them.

[8] Ibid [3.8] – [3.13]

53.The Tribunal raised with the applicant independent country information about entry and exit procedures and the treatment of returnees and those who departed Sri Lanka illegally. The Tribunal outlined the processes that would likely apply to the applicant under the I&E Act and noted that this is a law of general application and that there is no evidence that these laws are applied discriminatorily. The Tribunal noted that the country information does not support a finding that the application of the I&E Act to the applicant would give rise to protection claims.[9] In response the applicant stated that he hadn’t heard this detail before but the prospect of being detained and questioned makes him very scared and he does not want to face that situation. He said everyone’s case is different and others who are sent back may not have had strong claims and would not face the issues that he will face. He stated that he knows there are many people living in Sri Lanka safely but his circumstances are different because of his background and history with the CID.

[9] Ibid [5.17] – [5.32]

54.The Tribunal noted that the country information shows that the PTA has recently been used against Tamils, including accusations of attempting to resurrect the LTTE, but there was no evidence of any failed asylum seeker being charged under the PTA and there was no evidence of charges for reason of imputed membership of the LTTE.[10] In response the applicant stated that he had lost the trust in his country and the authorities there. He stated that in the case of the Mayor of Jaffna, he is high profile but an ordinary person like him could be detained and no one would find out.

[10] Ibid [4.23]

55.The Tribunal raised with the applicant independent country information regarding the capacity to relocate freely within Sri Lanka which suggests that unless he is on a ‘stop’ or ‘watch’ list he would be free to relocate to another area in Sri Lanka to minimise monitoring or harassment by local officials for petty issues.[11] In response he stated that he was facing big issues and fled overseas and was entitled to refugee status. He regrets that no one believes that he has really gone through these problems.

[11] Ibid [5.13] – [5.16]

56.The applicant stated that he felt like an orphan and he had no one to help him. He caught COVID and had no one to support him and bring him food and medicine. The lack of certainty about his visa had caused many problems and he has difficulty getting a house and has been overlooked for a promotion. He is also having issues with his prospective in-laws. He had been waiting for five years for the hearing and would do whatever it takes to stay in Australia because he was so fearful of returning home. If the Tribunal makes an unfavourable decision he would appeal.

57.The Tribunal noted that it understood the applicant’s circumstances were difficult and that the applicant had already been through a lengthy migration process prior to his appearance before the Tribunal. The Tribunal noted that it was required to consider the applicant’s circumstances in the context of the situation in Sri Lanka today and in the foreseeable future and determine whether he met the criteria for the grant of protection outlined to the applicant in opening remarks, either as a refugee or on complementary protection grounds. The question before the Tribunal was not whether the applicant would make a good contribution to Australia but whether he should be granted protection on the basis that he met the legal requirements.

58.The applicant’s representative was invited to make submissions but did not do so. The Tribunal confirmed that the applicant’s representative wished to rely on the written submission dated 14 December 2017 provided with the protection visa application and did not wish to provide an updated submission.

CONSIDERATION OF Claims and evidence

59.    The issue in this case is whether the applicant meets the criteria for a refugee as defined in the Act because he has a well-founded fear of persecution for reasons or race, religion, nationality, membership of a particular social group or political opinion, or, if not, whether the applicant meets the complementary protection criterion.

60.    For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Country information

61.    The Tribunal has considered independent country information in the context of assessing the applicant’s claims, including the following from the latest DFAT Report:

Security Situation

2.48    The security situation in Sri Lanka, particularly in the north and east, has improved significantly since the end of the civil war in May 2009. The Sri Lankan Government exercises effective control over the entire country, including Tamil-populated areas. Security was heightened across Sri Lanka following the 2019 Easter Sunday terrorist attacks (see also 2019 Easter Sunday Terrorist attacks and Aftermath of Anti-Muslim Violence).

2.49    The 2019 Easter Sunday suicide bombing terrorist attacks, carried out on 21 April 2019 by local Islamic extremists (National Thawheed Jammath (NTJ) and Jamaat-al Mullathu Ibrahim (JMI)) and inspired by Daesh (ISIL/Islamic State), targeted three luxury hotels in Colombo (Western Province) and three Christian churches in Colombo, Negombo (Western Province) and Batticaloa (Eastern Province). More than 250 people were killed in the bombings with another 490 injured. A Commission of Inquiry has investigated the bombings but, as at the time of publication, the Commission’s report had not been publicly released. The Catholic Church in Sri Lanka has repeatedly raised concerns about the ongoing lack of justice for victims and the Government’s handling of the investigations. The Commission’s work and broader efforts to seek accountability have become highly politicised, including due to allegations of links between intelligence personnel and the groups that carried out the attacks, and of negligence by high-ranking officials including former President Sirisena. 

2.50    The Sri Lankan Government claims it has killed or apprehended all those directly involved in the 2019 Easter Sunday terrorist attacks. Nearly 2,300 individuals were arrested in connection with the attacks, up to 300 of whom reportedly remain in police custody at the time of publication. The Sri Lankan Government proscribed the NTJ, the JMI and a third local Islamic extremist group, Willaayath as Seylani (WAS), as terrorist entities. According to media reporting, in May 2021, the Sri Lankan Ministry of Defence said it had no information about any current terrorist threat in Sri Lanka. See also Muslims with regard to the treatment received by Muslims in Sri Lanka following the 2019 Easter Sunday terrorist attacks.

2.51    The incidence of homicide has fallen sharply in recent years and is now comparable with other South Asian countries. The United Nations Office on Drugs and Crime estimated a murder rate of 2,421 per 100,000 people in 2018, the last year for which data is available. A number of local sources told DFAT of substantial gang violence in Jaffna (Northern Province), including random sword attacks allegedly carried out by Jaffna-based motorcycle gang the Aava Gang. A number of chiefly Tamil sources have suggested the Aava gang was enabled by Sri Lankan military intelligence but DFAT cannot verify this. 

2.52    Elections have historically been volatile periods in Sri Lanka; however, independent election monitors found no significant security problems with the running of the 2019 Presidential and 2020 parliamentary elections, even amid COVID-19 restrictions for the 2020 election.

2.53    States of Emergency have also been in place for much of Sri Lanka’s recent history, including throughout the war and for four months after the 2019 Easter Sunday terrorist attacks, and have been used as a tool to extend executive and military control. The most recent State of Emergency, declared on 30 August 2021 reportedly to control rapidly rising food prices, sparked concerns in some quarters. Media reports state that the recent declaration lapsed in early November 2021 with little fanfare.

Security situation in the north and east

2.54    The Government no longer restricts travel to the north and east. It removed security checkpoints on major roads in 2015, although some were re-established following the 2019 Easter Sunday terrorist attacks. DFAT understands some security checkpoints re-established in the north post 21 April 2019 have since been removed. Local sources report that roadblocks were significantly re-established in 2020-21, ostensibly to combat COVID-19 and drug trafficking. However, sources note these roadblocks are common in the north and east, and far less common around Colombo, which does not reflect relative COVID-19 risks in these locations. 

2.55    The military maintains a significant presence in the north. Military involvement in civilian life has decreased overall since the end of the war, although military involvement in some civilian activities, particularly the economy, continues in the Northern Province (see Economic conditions in the north and east). The Sri Lankan military comprises approximately 350,000 active and reserve service members; 280,000 Army, 50,000 Navy and 30,000 Air Force. Approximately 160,000 – 200,000 joined between 2006 and 2009. Retirement is permissible after 22 years of service. Much of the work currently done by the military includes: construction of roads, hospitals and houses; the renovation of dams; hospitality (such as running resorts or other tourism activities); and growing food (dairy farming, rice and vegetable cultivation).

Tamils

3.4      According to the most recent census (2012), Tamils are the second largest ethnic group in Sri Lanka (15.3 per cent of the population). Tamil political parties are active, with the largest coalition of parties operating under the umbrella of the Tamil National Alliance (TNA). In the 2020 parliamentary elections, the TNA won 10 seats (of a total 225) during the landslide victory of President Rajapaksa’s Sri Lanka People's Freedom Alliance (SLPFA). There are two Tamil parties in the Government’s ruling SLPFA coalition: the Tamil Makkal Viduthalai Pulikal (TMVP) (formerly known as the Karuna group), and the Eelam People's Democratic Party (EPDP), which have a combined total of three seats in the Sri Lankan Parliament. There is one Tamil cabinet minister as of November 2021: Minister for Fisheries, Douglas Devananda of the EPDP. This represents a decline in political influence for Tamils from the previous Sirisena Government.

Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs, though other sources suggest this is because many Tamils speak neither Sinhala nor English. Even the Tamil-dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil-speaking police officers and military personnel in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities. In April 2021, Sri Lanka Police announced plans to recruit 2,000 Tamil speakers for the north and east, given that very few of the mostly Sinhalese officers (with around 700 police officers working in the Northern Province and 1,100 in the Eastern Province) speak fluent Tamil. All police basic training is reportedly conducted in Sinhala limiting accessibility to most Tamils. 

DFAT assesses there is no official discrimination on the basis of ethnicity in public sector employment. Rather, Tamils’ under-representation is largely the result of language constraints and disrupted education because of the war.

DFAT is aware that some Sinhalese from the south have resettled in the north and east with government assistance in the post-war period. Local sources in the north expressed concern about the construction of Buddhist statues and temples in non-Buddhist populated areas. DFAT is unable to verify claims that Sinhalese settlers in the north and east have received preferential treatment to establish businesses.

Monitoring, harassment, arrest and detention

Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested or detained by security forces during the war. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner (see Liberation Tigers of Tamil Eelam). 

Members of the Tamil community and NGOs report that authorities continue to monitor public gatherings and protests in the north and east, and practise targeted surveillance and questioning of individuals and groups. Security forces are most likely to monitor people associated with politically-sensitive issues, including those related to the war, such as missing persons, land release and memorialisation events (see Civil society organisations and government critics and Media). 

Communities in the north and east report that monitoring is undertaken by military intelligence and the Police Criminal Investigation Department, though in many cases officers dress in plain clothes and do not identify themselves. According to local sources, those participating in public gatherings and protests are often photographed. In the east, local informants within the community (including neighbours and business owners) reportedly undertake monitoring on behalf of the authorities. Intelligence agencies also monitor links to foreign groups, including some in the Tamil diaspora (see Liberation Tigers of Tamil Eelam).

LTTE cemeteries in the north and east were destroyed by government forces during and after the war. Some have subsequently been restored. It is illegal to commemorate the birthday of LTTE leader Prabhakaran (26 November), or Maaveerar Naal (‘Great Heroes’ Day’ in Tamil, 27 November), although some Tamils are known to defy this ban. The public display of LTTE symbols, including the LTTE flag and images of Prabhakaran, is also banned. 

Tamils have been arrested in 2021 under the Prevention of Terrorism Act (PTA) for commemoration of the war (see Prevention of Terrorism Act). In May 2021, on the eve of commemoration of the end of the civil war in Mullaithivu district, the location at which various estimates suggest up to 40,000 civilians died in the closing phase of the war, authorities placed the district under strict COVID-19 quarantine isolation. According to local sources, Tamils who tried to commemorate the day were harassed or arrested by police. For example, 10 Tamils including two women were detained from 19 May 2021 until at least late July for holding a socially-distanced candle-lit vigil on a beach in Batticaloa, Eastern Province. On 19 May 2021, the Government of Sri Lanka, including President Rajapkasa, celebrated the same occasion as War Heroes Day. 

DFAT assesses that surveillance of Tamils in the north and east continues, with particular surveillance of those associated with politically-sensitive issues. DFAT also assesses that physical violence against those being monitored is not common, and that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment. 

Political Opinion (actual or imputed)

3.38    Sri Lanka has held regular democratic elections since independence. Large-scale violence and vote rigging have never been features of elections, but nor have elections always been described as entirely free and fair. DFAT assesses that political parties are able to operate freely across Sri Lanka and contest elections. There are no constitutional, legal or other restrictions preventing minorities from participating in politics. Sri Lanka has a diverse political landscape, with 70 registered political parties representing ethnic, religious and ideological interests. Political representation in parliament of each ethnicity is broadly proportional to the ethnic make-up of the overall population. The current parliament includes 27 Tamils and 19 Muslims among its 225 members. There is a single Muslim and Tamil respectively in the current cabinet, with another two Tamil state ministers. 

Liberation Tigers of Tamil Eelam (LTTE)

3.39    At its peak in 2004, the LTTE had an armed force of approximately 18,000 combatants. The LTTE was proscribed as a terrorist organisation by a number of countries, including Australia. It was supported by foreign funding, primarily from the Tamil diaspora, and both voluntary and forced recruitment of Tamils. Funding from the Tamil diaspora was sometimes attained through means of intimidation and coercion, including threats against local family members and kidnapping for ransom. Within Tamil Eelam, the LTTE imposed its authority in a brutal fashion, reportedly murdering Tamil rivals and critics. 

3.40    Towards the end of the war, in 2009, government security forces arrested and detained a large number of LTTE members. Most were sent to government-run rehabilitation centres. A smaller number were prosecuted through Sri Lanka’s court system. Security forces also questioned or monitored many civilians for possible LTTE activity, and for civil resistance or anti-government sentiment. Although not officially mandated, in many areas the military took a visible and active role in civilian life. The previous Sirisena Government publicly committed to reducing military involvement in civilian activities, but observers have expressed concern that this has reversed and the military’s role is growing again. 

3.41    While the LTTE was comprehensively defeated, Sri Lankan authorities remain concerned over its potential re-emergence, and to separatist tendencies in general. Sources report that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members, supporters and other separatists, including ‘stop’ and ‘watch’ electronic databases. DFAT understands these databases remain active. ‘Stop’ lists include names of those individuals who have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals whom the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities. 

3.42    Former LTTE members face no legal barriers to participating in public life, including politics. In the August 2015 parliamentary elections, the TNA did not allow ex-LTTE members to run on their ticket, but ex-combatants established the Crusaders for Democracy party and ran for election. While the party did not win any seats, its participation demonstrated the relative openness of the electoral process. The party did not contest the 2020 parliamentary elections.

3.43    The LTTE has not carried out any attacks since 2009; however, individuals linked to the LTTE have been involved in what are alleged to be thwarted attacks. DFAT assesses that the LTTE no longer exists as an organised force inside Sri Lanka, and any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans. Local sources told DFAT that the Tamil community had abandoned militancy and was committed to addressing its grievances through political means. 

3.44    The International Truth and Justice Project (ITJP), an NGO which documents torture and sexual violence by the security forces in Sri Lanka, claims that, while ex-LTTE cadres exist, they are no longer affiliated in any way with an extant LTTE, and are subject to harassment and discrimination by the Government. The Sri Lankan Government may not accept that the LTTE is finished, arresting several Tamils in 2021 under the Prevention of Terrorism Act (PTA) for alleged LTTE-supportive behaviour (see Prevention of Terrorism Act). In July 2021, a Tamil man was deported from Qatar to Sri Lanka at the request of Counter-Terrorism Investigation Department (CTID) for allegedly promoting the LTTE. In its May 2021 decision on the refugee status of Tamil activists in the UK, the UK Upper Tribunal found that the present Government of Sri Lanka was possessed of a ‘determination to prevent any form of resurgent separatism’.

Rehabilitation

3.45    Since the end of the war, successive Sri Lankan Governments have managed a large-scale ‘rehabilitation’ process for former LTTE members. The aim of the 24 rehabilitation centres was to process LTTE members who surrendered in the final stages of the war and to assist them to adjust to a life after war, with a focus on vocational training. According to Sri Lankan Government statistics from March 2019, 12,191 former LTTE members (including 2,265 women) had completed rehabilitation. Some centres previously used to rehabilitate former LTTE members have since been redeployed for the purposes of rehabilitating drug addicts and possibly Muslim detainees under the PTA (see Rehabilitation of non-LTTE members). 

3.46    Local sources have previously estimated that between 4,000 and 6,000 former LTTE members are undisclosed and non-rehabilitated, the majority of whom may now be living overseas. Military sources have previously estimated the number of undisclosed and non-rehabilitated former LTTE numbers within Sri Lanka as being low, including approximately 280 individuals in Jaffna (Northern Province). 

High-profile former LTTE members

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

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

Low-profile former LTTE members 

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

Monitoring of former LTTE members 

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

3.51    Local sources also claimed the authorities – usually undercover police officers or intelligence agents – sometimes used more subtle methods, for example inviting individuals to tea in public places and asking questions about their activities. Such questioning did not involve violence. Telephone calls were also common. Some sources claimed questioning was sometimes indirect, and involved questioning the neighbours of suspected former LTTE members. Sources told DFAT that monitoring of former LTTE members was less extensive in the Eastern Province, insofar as many there had defected during the latter years of the war and aligned with the Government as part of the Karuna Group/TMVP (see Security situation in the north and east). 

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

Former LTTE members living outside Sri Lanka

3.53    At least one million Sri Lankan Tamils live outside Sri Lanka, mostly in Canada, Europe (with large communities in the UK and France), Australia and India. Members of the Sri Lankan Tamil diaspora may be citizens or legal residents of those countries, or dual nationals. Some members of the Tamil diaspora return to Sri Lanka to visit family members, for holidays and for business. Remittances from the Tamil diaspora provide an important source of income for family and community members in Sri Lanka. 

3.54    Some members of the Tamil diaspora played a central role during the war, as a source of funding, weapons and other material support for the LTTE, and as political advocates for an independent Tamil state. Some Tamil diaspora groups continue to hold public demonstrations in their countries of residence for an independent Tamil state. High-profile leaders of pro-LTTE diaspora groups, particularly diaspora groups banned under Sri Lankan law, may come to the attention of Sri Lankan authorities because of their participation in such demonstrations. The Sri Lankan Government continues to assess that elements of the Tamil diaspora remain committed to a separate Tamil state. The UK Upper Tribunal in its May 2021 ruling on Tamils engaged in activities in the UK found that a range of political activities such as ‘attending meetings and demonstrations, holding flags or banners displaying the LTTE emblem, attendance at commemorative events, meaningful fundraising, any presence on social media, signing petitions’ may be perceived by the Government of Sri Lanka as threatening and it may trigger official harassment upon return.

3.55    In March 2021, the Sri Lankan Government proscribed a number of Tamil diaspora groups including the Australian Tamil Congress and the Tamil Youth Organisation (Australia), as well as a number of individuals based in Australia, the UK, Germany, Italy, Malaysia and several other countries. The Australian Tamil Congress and the Tamil Youth Organisation are not proscribed in Australia, while the LTTE remains a proscribed organisation in Australia. 

1. The Tribunal has also considered the following section from the UNHCR Report which indicates that on 10 February 2022 the PTA Amendment Bill was presented to parliament, which increases judicial oversight of places of detention, speeds up trials and repeals limitations to publication, but still contains some of the ‘most problematic provisions’.[31] The Tribunal notes the following from the UNHCR Report:

   [31] UNHCR Report [41], p.9

   Reports indicate that at least 70 people have been arrested under the PTA for sharing social media posts commemorating victims of the war that included LTTE images or Tamil nationalist iconography. On 18 May, police arrested 10 people near Batticaloa under the PTA for organizing a memorial event; they were finally released on bail on 8 December. A journalist, Murugupillai Kokulathasan, has been detained for 15 months since November 2020 in relation to photos of the LTTE leader appearing on his social media. The Government shared with OHCHR a directive issued by the Inspector General of Police dated 23 October 2021 providing guidance on restricting the use of the PTA and exercising greater discretion in evaluating cases such as, possession of pictures. [32]

   [32] Ibid [45], p 10

   95.    In relation to the conditions for returnees, the DFAT report states:

   5.27    Between 2010-11 and 2018-19, 3,716 Sri Lankan nationals returned from the Australian community or were removed from Australian onshore immigration detention centres to their country of origin or a third country. Between 2002 and September 2021, the IOM has facilitated the return of 876 Sri Lankans from Australia. Many others returned from the US, Canada, the UK and other European countries. Most returnees are Tamil. Although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin and they have existing family links, or because of the relatively lower cost of living compared to the south.

   5.28    Refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. Most returnees have incurred significant expenses or debt to undertake their outward journey. Some voluntary returnees receive reintegration assistance in the form of transport and livelihood support upon return to Sri Lanka from the Government, UN agencies and NGOs, but this requires a returnee to meet strict eligibility guidelines and is minimal. Failed asylum seekers receive limited reintegration assistance. Many returnees have difficulty finding suitable employment and reliable housing on return. Those who have skills that are in high demand in the labour market are best placed to find well-paid employment. The IOM provides eligible returnees with livelihood assistance and makes regular visits to monitor the welfare of returnees. 

   5.29    Multiple local sources said that some returnees, especially those in the north and east with suspected LTTE links, have been the subject of monitoring by the authorities, involving visits to returnees’ homes and telephone calls by the CID. DFAT understands that most returnees, including failed asylum seekers, are not actively monitored on an ongoing or long-term basis. DFAT is unable to verify whether monitoring, where it occurs, is specific to former LTTE cadres. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had no protection concerns and had not experienced harassment by the authorities, nor received monitoring visits, but DFAT cannot determine if this is the case for all such returnees.

   5.30    Bureaucratic inefficiencies present a significant challenge to reintegration for returnees. Refugee returnees, particularly those who returned without UNHCR or IOM facilitation, can experience delays in obtaining necessary identification documents and proof of citizenship. Lack of documentation inhibits access to social welfare schemes and the ability to open bank accounts, find employment or enrol in educational institutions. Limited job availability in the north and east further contributes to difficulties in securing employment and housing. DFAT assesses that reintegration issues are not due to failure to obtain asylum, but rather due to the employment and accommodation difficulties returnees may face. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they were able to reintegrate into their communities and find employment. DFAT understands that returnees may face financial difficulties reintegrating into their communities, including due to sale of their belongings to fund irregular ventures overseas, but do not experience societal discrimination for seeking asylum elsewhere.

   5.31    Some refugees and failed asylum seekers reported being pressured upon return to their communities, chiefly for being beneficiaries of financial reintegration assistance. Others experienced resentment upon return because they spent family funds on what proved to be a futile attempt at irregular migration. Overall, DFAT understands that societal discrimination is not a major concern for returnees, including failed asylum seekers. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had not experienced significant societal discrimination following their return.

   5.32    DFAT assesses that returnees face a low risk of societal discrimination upon return to their communities. DFAT further assesses that, where it occurs, surveillance of returnees can contribute to a sense of mistrust of returnees within communities.

   96.    The Tribunal accepts that the applicant will return to Sri Lanka as a failed asylum seeker. The Tribunal accepts further that the applicant left Sri Lanka illegally. The Tribunal accepts that there is a real chance the applicant will be questioned by the authorities on his return to Sri Lanka as a failed asylum seeker who departed Sri Lanka illegally (and someone who left his village). However, having regard to the country information, the Tribunal considers that any questioning will be brief and routine and will not be undertaken discriminatorily.

   97.    The Tribunal accepts on the basis of the country information that the applicant will be presented to immigration officials on arrival and will questioned and subject to identity checks. It is also likely that the applicant will be questioned by the CID, Sri Lankan State Intelligence Service and the Sri Lankan Navy Intelligence because of his illegal departure by boat. The Tribunal accepts that the applicant will be charged by the CID. The Tribunal accepts that he will be taken to court at the first available opportunity after investigations are complete and that he may be held in custody for up to 24 hours at the CID Airport Office and possibly at a prison (for example if he returns on a weekend or public holiday) if a magistrate is not available. DFAT assesses that these processes are standard and are applied uniformly regardless of ethnicity or religion and is not aware of returnees in 2021 being detained for matters other than illegal departure.[33] DFAT is not aware that detainees have been mistreated at the airport during processing.[34]

   [33] DFAT Country Report – Sri Lanka, 23 December 2021 [5.18]

   [34] Ibid [5.20]

   98.    The Tribunal does not accept that the applicant’s profile will invite further attention, such as to elevate the questioning at the airport from routine procedures. The Tribunal does not accept that his status as person who departed Sri Lanka illegally by boat or as a failed asylum seeker in Australia would, of itself, mean that the applicant would face additional questioning or mistreatment. Accordingly, the Tribunal does not accept that the applicant will be a person of interest to the authorities solely based on his status as a failed asylum seeker who departed Sri Lanka illegally.

   99.    The Tribunal accepts that the applicant will face a financial penalty under the I&E Act for departing illegally. On the basis of the country information, the Tribunal considers that this will be between LKR 50,000 to 200,000. The Tribunal also accepts, on the basis of the country information that there will be further financial costs associated with having to return to Colombo for court appearances while the matter is before the court, and that such cases can take years to resolve. However, on the basis of the country information, while theoretically possible, the Tribunal does not accept that the applicant will face a custodial sentence.[35]

   [35] Ibid [5.22].

   100.      The Tribunal has also considered whether there is a real chance that the applicant will face detention under the operation of the PTA. The Tribunal has had regard to country information which indicates that the PTA has recently been used for purposes other than terrorism, including against Tamils, but observes that DFAT is not aware of returnees from Australia being charged under the PTA.[36] For reasons identified earlier, the Tribunal does not accept that the applicant’s profile is such that there is any real chance that the applicant will be detained or charged under the PTA on return on the basis of imputed or actual LTTE or separatist involvement or activity.

   [36] Ibid [5.26]

   101.      I have had regard to the country information, including that in the submissions, but I find I prefer the specific, recent information from DFAT which deals with the specific situation for returnees, and agrees with the information from the other sources cited above. I note also that as DFAT notes, many thousands of asylum seekers have been returned but there have been few allegations of torture or trauma and those not fully substantiated. I find that, on assessing all of the country information it indicates to me that there is not a real chance or real risk of people returning as failed asylum seekers being harmed or differentiated on that basis by the authorities, and that the authorities do not see the attempt to seek asylum as a concern, unless the person has actual or imputed links with the LTTE, certain opposition politicians and political activists, human rights activists or journalists or have taken an active role in people smuggling.

   102.      I have considered the applicant’s profile and his claims and I do not consider that he is a person who fits within any of these profiles, I do not consider that he is a person whom the authorities would have any interest in, I do not accept that the applicant has, or would be imputed with, any of these profiles. I do not accept he has any outstanding charges in Sri Lanka against him. I do not consider, assessing what I accept of his claims, that there is any reason why the authorities would have any interest in him on his return to Sri Lanka. I find that they would question him aware that he departed illegally and as a failed asylum seeker, and that, not being a security or political offence, the Sri Lankan authorities would have no interest and I find it would not lead to further questioning, detention of further interest in the applicant by the authorities. I find that the applicant is not wanted by the Sri Lankan authorities and will not be subjected to any detention or interrogation on arrival to Sri Lanka other than the standard questioning and procedures described by DFAT.

   103.      I note that the applicant has submitted country information which refers to the case of Thileepan Gnaneswaran:

   In July 2018, Tamil asylum seeker Thileepan Gnaneswaran was deported from Australia and detained by Sri Lankan police on arrival in Colombo. He was charged by Sri Lankan authorities for illegally leaving the country. The offence is understood to carry a maximum sentence of a fine of 200,000 rupees and prison term of five years. The deportation was widely criticised, including by the UN Refugee Agency who condemned Australia's actions to separate a family indefinitely, as his Tamil wife and child remain as refugees in Australia.

   In February 2018, Tamil asylum seeker Mr Santharupan was deported from Australia despite direct criticism from the UN refugee agency. He was arrested and charged by Sri Lankan authorities. In his deportation notice, ABF officers said his personal information may be disclosed to foreign governments or agencies as part of his removal.

   Santharupan has experienced ongoing harassment. Security forces have made multiple visits to his home and recorded the details of his wife and children[37]

   [37] Sri Lanka Country Information Report No. 3, 15 June 2021, Combined Refugee Action Group, Geelong, Victoria

   104.      The Tribunal notes that while there is this report of detention of this individual the cumulative balance of the country information is that individuals who are returning without a profile as described above do not face more than the standard questioning and procedures. DFAT is unaware of a prison sentence being given for illegal departure by itself, and the Tribunal finds that on balance the applicant does not face this prospect. The applicant is likely to face a fine of a fine which would be between LKR 50,000 - 200,000 (AUD230-930). The Tribunal has no basis for finding that he is so impecunious that he cannot pay, or that he unable to be assisted by friends and family to pay this fine, even possibly pay the fine in instalments. The Tribunal notes that the country information is such that even if unable to do this the advice is that such a person ‘may’ be imprisoned for 14 days (not that he automatically will). Therefore, the possibility of harm eventuating here has a number of stages that first must occur, and the Tribunal finds such assumptions to be in the realms of speculation and remote.   

   105.      Accordingly, the Tribunal does not accept that the applicant will face a real chance of serious harm on return to Sri Lanka as a failed asylum seeker who illegally departed Sri Lanka or as a person with imputed or suspected LTTE or separatist associations or sympathiser.

   106.      The Tribunal has also considered whether there is a real chance of serious harm to the applicant in the wider community. Having regard to the country information, the Tribunal accepts that it is likely that the applicant would be subject to some monitoring by the authorities should he return to the Eastern province, but that this is unlikely to be long-term or ongoing.[38] The Tribunal accepts that those suspected of LTTE links are subject to monitoring. However, having regard to the Tribunal’s findings in related to the applicant’s claims to have imputed LTTE association, the Tribunal does not accept that he would be actively monitored on an ongoing or long-term basis and notes that some returnees have not experienced any harassment or monitoring.[39] The Tribunal does not accept that his profile would give rise to heightened or elevated attention.

   [38] Ibid [5.29]

   [39] Ibid [5.29]

   107.      The Tribunal has also considered the applicant’s claims to fear local people in his region who will be jealous of him because of his perceived wealth. Having regard to the country information, the Tribunal accepts that local informants still operate in the Eastern region and are involved in subtle monitoring. However, the Tribunal does not accept that there is a real risk that the applicant would suffer serious or significant harm from any local informants or that any local jealousies would give rise to real chance or real risk of serious or significant harm. There is little before the Tribunal in terms of detail and country information to lead me to conclude that there is a real risk of this occurring  

   108.      The Tribunal accepts that the applicant may face some challenges to reintegration, including obtaining identification, employment and housing. However, the Tribunal does not accept that these challenges give rise to rise to real chance or real risk of serious or significant harm. The Tribunal also notes that the applicant’s mother, father and [sibling] still reside in Sri Lanka and could offer financial and emotional support to the applicant. The Tribunal also observes that the applicant’s [brother in Country 1] could support the applicant’s father and mother financially.

   109.      The Tribunal does not accept the applicant will be subject to any rehabilitation process on return to Sri Lanka. The applicant has not claimed that he or any member of his family were ever members of the LTTE or held any positions in the LTTE. The applicant has not claimed that he or any members of his family ever trained with or fought for the LTTE. The applicant has not claimed that he or any members of his family supported the LTTE, financially or otherwise. The Tribunal having had regard to the DFAT country information on rehabilitation (above) does not consider there to be a danger that he will be wrongly considered to be such an individual and thus sent for rehabilitation.  

   Additional country information

   110.      The Tribunal has examined additional country information, including that submitted post-hearing (as detailed earlier in this decision). While it is relevant to the subject matter at hand, the Tribunal is not persuaded that the risk profile for Tamils has altered so substantially since the election of, and/or after the deposing of the Rajapaksa regime in July 2022. The articles’ focus is largely upon the harm and risk befalling journalists, activists and lobbyists for change. As is explained elsewhere in this decision the applicant to the Tribunal’s determination does not fall within such categories and the Tribunal is unable to see how the matters detailed in this media specifically impact upon the applicant. While general context is seen in the articles, it does not rise above this for the applicant.

   111.      The Tribunal has also considered the applicant’s representative’s submission per the Sri Lanka Country Information Report No. 3, 15 June 2021, Combined Refugee Action Group, Geelong, Victoria that the DFAT report should not be relied upon in the assessment of the applicant’s matter, in light of the UK Upper Tribunal’s decision of May 2021[40]. In this decision the UK Upper Tribunal called for DFAT’s report of 4 November 2019 to be retracted because it was based on unreliable information. The UK Upper Tribunal noted that in the DFAT report none of the sources are identified and there is no explanation as to how the information from these sources was obtained. I note that there has been an updated DFAT report since that time.

   [40] KK & RS (Anonymity Direction Made) v Secretary of State For The Home Department, Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, 20210601113225, 17, [38].

   112.      The Tribunal has also considered the applicant’s view that information presented to him at his hearing from the DFAT Report does not provide an accurate representation of the situation in Sri Lanka.

   113.      As noted above, Ministerial Direction No.84, requires that a decision maker takes into account DFAT’s assessment where relevant in making their decision, but does not preclude the decision maker from considering other relevant information about the country. The Tribunal notes that DFAT’s report is informed by DFAT’s on-the-ground knowledge and discussions with a range of sources, including in Sri Lanka. It takes into account relevant and credible open source reports, including those produced by: the US Department of State, the UK Home Office, the World Bank and the International Monetary Fund; relevant UN agencies, including the Office of the United Nations High Commissioner for Human Rights (OHCHR), the United Nations High Commissioner for Refugees (UNHCR), the United Nations Development Programme (UNDP), the United Nations Population Fund (UNFPA) and the International Organization for Migration (IOM); leading human rights organisations such as Human Rights Watch, Amnesty International and Freedom House; Sri Lankan non-governmental organisations (NGOs); and reputable news organisations. Where DFAT does not refer to a specific source of a report or allegation, this may be to protect the source.

   114.      Considering the wide range of sources used, including local sources consulted in the preparation of this report, the Tribunal does not accept the contention that DFAT’s assessments are not accurate and reliable. In making this decision the Tribunal has also taken into account the extensive country information provided by the applicant but gives weight to DFAT’s independent assessments.

   115.      In terms of the economy, it is apparent that there has been some economic stabilisation with a cash injection from the International Monetary Fund, with access to USD$7B. [41] It appears that a level of economic certainty has been provided through India’s assistance[42] Therefore the Tribunal does not have reason to find that therefore he will suffer such economic hardship that threatens his capacity to subsist. As discussed above, the Tribunal does not have a basis for finding that as claimed he has no support system in Sri Lanka. It notes that there are a variety of family members in Sri Lanka who could conceivably support him. He is also a younger man with work skills, which improve his ability to support himself.

   [41]     Considering all the applicant’s claims, the country information and the Tribunal’s findings individually and cumulatively, the Tribunal does not accept that the applicant’s claims give rise to a real chance of persecution from agencies in Sri Lanka on arrival in Sri Lanka or in the community now or in the reasonably foreseeable future. 

   117.      For the reasons outlined above, the Tribunal does not accept that the applicant will face a real chance of serious harm either on arrival in Sri Lanka or in the wider community for the same reasons, both individually and cumulatively considered, now or into the reasonably foreseeable future, if the applicant were to return to his country of nationality.

   118.      For the reasons identified in this decision, the Tribunal does not consider that the applicant’s fear of persecution for a refugee reason in s 5J(1)(a) is well-founded and as such is not a person in respect of whom Australia owes protection obligations under s 36(2)(a).

   Complementary protection

   119.For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

   120.Having concluded that the applicant does not meet the refugee criterion on s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The question is whether there are 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 the person claiming protection will suffer significant harm.

   121.      Even cumulatively, his experiences, his illegal departure from Sri Lanka, and his status as a failed asylum seeker (including any wealth that might be imputed) does not lead me to conclude that:

   ·he will be arbitrarily deprived of his or her life; or

   ·the death penalty will be carried out; or

   ·he will be subjected to torture; or

   ·he will be subjected to cruel or inhuman treatment or punishment; or

   ·he will be subjected to degrading treatment or punishment.

   122.The Tribunal accepts that the applicant may find it difficult to adjust or to find employment on his return to Sri Lanka, but this does not amount to significant harm for the purposes of s 36(2A) of the Act. The Tribunal does not accept that any challenges he may face on return would constitute significant harm within the meaning of the Act. While he may well be monitored this does not in this case amount to significant harm. For the reason above he may be seen as an unsuccessful asylum seeker, but this for the reasons mentioned above are not leading to a legislatively-specified harm.

   123.Having regard to the Tribunal’s findings, as a necessary and foreseeable consequence of the applicant’s return to anywhere within Sri Lanka, the Tribunal does not accept that he will face a real risk of significant harm of any kind, as required by s 36(2)(aa) of the Act.

   124.Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

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

   DECISION

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

   Justin Meyer
   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.

   …

   
   

Motivated Torture, - p. 530), date
accessed 25 March 2022

accessed 28 March 2022

Date accessed
28 March 2022