1802886 (Refugee)

1802886 (Refugee) [2023] AATA 2503 (19 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Shamili Kugathas
CASE NUMBER:  1802886
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Lilly Mojsin
DATE:19 June 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 June 2023 at 11:36am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – ethnicity and imputed political opinion – Tamil suspected of links to LTTE or separatist views – uncle a non-combatant member – applicant joined student organisation and participated in commemorations – arrested, questioned and threatened – two friends missing – returned failed asylum seeker and socio-economic conditions – credibility – departed lawfully on own passport – late claim of social media activity, attack by Sinhalese students and hospitalisation – unfavourable inference drawn – authenticity and relevance of news articles – translation of articles and transliterations of names – no organisational membership or activity in Australia – no harm to uncle or other family members – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 423A, 424A
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 January 2018 to refuse to grant the applicant a protection visa [PV] under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 5 October 2016. The delegate refused to grant the visa as the delegate was not satisfied the applicant would suffer serious or significant harm on his return to Sri Lanka.
The applicant appealed that decision to this Tribunal, annexing a copy of the Department decision to the application for review.
The applicant appeared before the Tribunal on 18 August 2022 to give evidence and present arguments via MS Teams Video. The Tribunal had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The applicant confirmed that the applicant could hear and see me. I was able to interact with the applicant and was able to maintain line of sight and appropriate communication throughout the proceedings.
I am satisfied that the applicant was given a fair opportunity 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.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
See Annexure A
CONSIDERATION OF Claims and evidence
The applicant was born in [Year]. The war in Sri Lanka ended in May 2009. At the time the war ended the applicant was studying at a school in [Location 1] [City]. He then studied at [an Institution] for a [Diploma in Specialisation] from [Year] to [Year]. He then studied a Bachelor of [Subject], at [University], from [Year].
The applicant included a statement outlining his claims for protection. In summary, the applicant stated:
·I am [Age] years of age. I was living and studying in LTTE controlled area of [City]. Subsequently our family moved to army controlled area of [City] for studies. I am an ethnic Tamil and my family members were involved in LTTE as [Non-combatant roles].
·Having lived in LTTE controlled area, the CID police started suspecting me and my family members as persons having close links to LTTE.
·I am [an Occupation 1] as a [Job task 1] and was studying for my bachelor degree in [University] of Sri Lanka.
·In May 2016 our University celebrated the Remembrance Day for the Mullivaikkal Tragedy (where more than 100,000 Tamils were killed). This was protested by Sinhala students. Tamil students including me objected to the Singhalese protest.
·Following which a scuffle ensued and police took six of the Tamil students, including me, and four Sinhala students for interrogation.
·The police released all the Sinhala students immediately. The CID police questioned us at length and threatened to torture me if I do not admit my links to LTTE.
·After the intervention of the Dean of the University, we were also released after severe warning.
·Two days later two of my friends were picked up again for questioning and their whereabouts till today are yet to be known.
·Fearing for my life, I left Sri Lanka on a false pretext and I fear that I will be unlawfully detained, tortured and probably killed by CID police.
·I now understand from my family that CID police came to my house in search of me and have asked my parents to inform the police if I return. Police also told my parents that I should surrender at the [Location 2] police station.
The applicant explained that he experienced harm in Sri Lanka when the Criminal Investigation Department [CID] of the police detained him and took him to the police station for questioning. He says he was detained for long hours without food or water and they threatened to torture him. The applicant added that the Dean intervened and enabled his release and that since then the police have visited his family home and are searching for him.
The applicant says that the CID is an arm of the Sri Lankan government and is against helping ethnic Tamils who are perceived to have an association with the Liberation Tigers of Tamil Eelam [the LTTE]. The applicant says the CID are perpetrators of crimes and that the Sri Lankan government encourage and provide support to the CID. Therefore, he says government authorities cannot protect him as they are the perpetrators.
The applicant fears he will be apprehended, imprisoned and may be killed by the police or other government hired hooligans or employees. He also fears he will be charged under the Prevention of Terrorism Act (1979) (the PTA) if he returns to Sri Lanka.
Submission by applicant to Tribunal
The applicant arrived in Australia on a tourist visa [in] September 2016. His tourist visa application was lodged by his employer, [Company], a [Work sector] company in Sri-Lanka in August 2016 as he told his employer that he was scared for his safety in Sri-Lanka. He said that he was already in the midst of organising a trip for “our team” to Australia and his employer advised that he should also be part of the work trip and to wait until things settled down in Sri-Lanka.
The CID had visited his family home in search of him and his mother eventually told them that he had travelled to Australia.
The applicant did not seek legal advice when preparing his PV application as he did not have the financial means to do this. Moreover, his English was limited at the time and a male Tamil community member helped him write a brief response to question 87 to question 96 of the visa application form. He remembers telling him about his post on [Social media] which led to his hospitalisation, but he said that “we should just provide very basic general information now and when I face my interview, I would be provided with the opportunity to provide more information about my claims for protection”. He was very rushed for time which is why the applicant believes important aspects were omitted in his response to question 89. He believes the haste that the community member was in, is the reason why in his initial application, a lot of important aspects of his claims for protection such as the [Social media] post, being attacked and his hospitalisation were omitted from his application. He intended to provide that information at interview, however when his interview was scheduled he did not receive notification of the interview in time and missed the interview date.
He was expecting the interview notification to come in the post, he did not receive any letters. At that time, he did not proactively check his email and when he happened to check it he saw that he had received by email an interview attendance request, but by this time the interview scheduled date had elapsed and he had already received a refusal notification email.
The applicant was born on [Date] in [Location 3] [City], an LTTE Controlled area. His family have always been supporters of the LTTE. He moved to the army controlled area of [Location 1] [City] in 2000 and this is where he commenced high school.
His uncle, [Mr A] was an LTTE member. He was in the [non-combatant] division of the LTTE. He joined the LTTE at a very early stage, and his memories of his uncle are only of him in the LTTE. He resided with them until they moved to the army controlled area in [City]. Everyone knew they were LTTE sympathisers and [Mr A] would come visit the family home in [Location 1].
He then began studying at [University] in [Year]. He joined as a member of [Organisation] and as part of this organisation they would organise Martyrs Remembrance Day and Mullivaikkal Remembrance day. They would also advocate for the rights of Tamil students and for those families whose relatives were missing during the war. By 2016 he commenced a leadership role within this organisation, as a [Role]. As part of the activities organised through this organisation they organised a memorial service on the morning of [Day 1] May 2016, in [a Venue].
On [Day 1] May 2016, he shared on his [Social media] account, a picture of himself lighting a lamp at the Genocide Remembrance Day function organised by the committee at university, with words commemorating the innocent who were killed in the war.
On [Day 2] May 2016, some of the Sinhala students at university protested against their Mullivaikkal celebrations and the applicant was singled out and attacked by Sinhalese students and he was accused of being an LTTE supporter and told to remove his post from [Social media]. He was beaten. Other Tamil students came to help him and there was a brawl. Police attended the scene and he was arrested with 5 other Tamils. The Sinhalese students were released. He sustained a beating to the back of his head and left leg. He was taken to [Location 4] Police station. The CID visited them at the Police Station and questioned him about his involvement and support for the LTTE and they accused him of spreading propaganda and promoting the LTTE.
The applicant provided a copy of the news articles and translation published in [News source 1] in Sri-Lanka with his comments as to relevance.
·News article, '[Article 1]' dated [Day 1] May 2016. [URL 1] -My full name and picture is published in this article. This article confirms that the Mullivaikkal Genocide event was held at our university campus.
·News article, '[Article 2], dated [Day 3] May 2016. [URL 2] My full name is published in this article. This article confirms that he was attacked because of a post that he put up on [Social media] and that he was taken to hospital for treatment.
·News article, '[Article 3]' dated [Day 4] May 2016. [URL 3] His full name is published in this article. This article states again that he was attacked for a [Social media] post and that a rally was organised at the university in protest of his attack and parliamentarian [Mr B]and [Mr C]also attended the protest, to encourage peace.
·News article, '[Article 4]" dated [Day 6] May 2016. [URL 4] His full name is published in this article.
Representative’s Submission
Applicant representative’s submission 10 August 2022 opines that the applicant participated in a memorial event in Sri-Lanka in 2016 and published a photo and message in tribute to innocent Tamils killed by the Sri-Lankan Authorities on his [Social media] account, which demonstrates his political opinion in support of the LTTE, and against the Sri-Lankan government. The representative refers to Tamils in Sri Lanka arrested in 2021 under the Prevention of Terrorism Act (PTA) for commemoration of the war. He references DFAT and UK Home Office reports that state ‘The government’s present objective is to identify Tamil activists in the Diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state enshrined in Amendment 6(1) to the Sri Lankan Constitution in 1983, which prohibits the ‘violation of territorial integrity’ of Sri Lanka. Its focus is on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organisation and (b) the revival of the civil war within Sri Lanka.’
The representative further opines that the applicant would be sought out for suspected activities in promotion of the resurgence of the LTTE upon return to Sri Lanka, especially as he is on record as someone who has financially supported LTTE families and participated in banned Heroes day memorial services. Further, his [Social media] post and involvement in the [Day 1 May] remembrance day event, indicates the applicant meets the criteria of persons at risk identified by the UK Upper Tribunal views, in 2013. There is a real chance that during the identification checks at the airport he will be identified as being:
§perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka and
§person whose name appears on a computerised “stop” list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a “stop” list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.’
The representative quoted from a 2014 UK Home Office report that the government is focusing on prevention of the resurgence of LTTE and the government continues to detail suspects and sympathisers and supporters. He provided a list of 2021 articles about Tamils who have been arrested on their return from Germany and Switzerland, other Tamils arrested in Sri Lanka for UTube posts and the Mayor of Jaffna and ors for Council uniforms being similar to the LTTE police force.
Further the representative noted that Sri Lanka’s prime minister has warned of a food shortage as the island nation battles a devastating economic crisis and promises to buy enough fertiliser for the next planting season to boost harvests.
Tribunal hearing
At the commencement of the Tribunal hearing I explained the applicant that I am required by Ministerial Direction to take into account DFAT reports prepared for protection status determination purposes. I also explained that s.423A of the Act, in relation to protection visa applications made on or after 14 April 2015, states that if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made and the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented before the primary decision was made, the Tribunal must draw an inference unfavourable to the credibility of the claim or evidence.
The applicant asked to correct paragraph 22 and 25 to 2016 stating that in the PV application his friends were arrested 2 months later.
The applicant lives in Australia, in [Suburb], he is single. and works at [Employer] as a [Job task 2]. Asked if he speaks English at work he said that when he arrived his English was not good but has improved in Australia. Asked about his PV application where he indicated he could read write and speak English, he said that he completed university in Sri Lanka and can read and write English. I asked if he could read and write English better than he speaks English and he said that his reading, writing and speaking is equal. Asked if English is language of instruction at university, he said some parts were in English but mostly in Tamil. He studied his Bachelor of [Subject] until 2016, he started in 2012 but because of problems he had to leave and did not complete the course.
He was employed in Sri Lanka and because of his family’s financial background, he completed A Level and then studied [Specialisation] part time, completing it in 2011. He worked in a [Workplace] and studying. He also worked part time when at university from 2012 as [an Occupation 1]. From 2013 he was a [Job task 1].
His parents are in Sri Lanka, one brother and a sister. His parents live in [City], his father is a farmer and has always been a farmer, his mother is a housewife. He rented the land then bought the land in 2008/2009, it was before he finished school in 2009.
I confirmed that he obtained a passport from the Sri Lankan authorities on 6 June 2016, and he obtained a visa to Australia in August. The company where he worked as a [Job task 1] covered all major cities and was located at [Suburb] in Colombo. He worked in Eastern Province and he lived at home with his parents in [City].
I put to him that the Sri Lankan authorities were not interested in him as he was able to depart to Australia from Colombo legally with a passport issued in his own name. He said that the company was a large scale international company, they had influence in the airport and he was able to leave Sri Lanka without problems as they used some travel agents. He told his manager of the problems he faced and was unable to work for the last 2-3 months before he left. He was allowed to continue as an employee,. Asked how he continued to work, he said that as a [Job task 1] his role is to [Specified task relating to specified people]. They continued to [Do something] and the company was not concerned and he was able to be an employee. He was working from home.
I put that he has never been a member, nor made any claims regarding any pro-Tamil, anti-Sri Lankan activities here in Australia. He said that he attended the heroes day in the [Venue] [Suburb 2] and attended Mullivaikkal Remembrance day in [Suburb 2]. Asked how many people attend he said that more than 300-400, it is in large numbers many families. I put that he was not a leader nor member of any organisation. He agreed.
I discussed with the applicant his claims that his family has LTTE links. I put to him that after the war his family were not taken into a camp, nor were they arrested, he attended school and was able to study and obtain a job. He said “the family links I have said is my paternal Uncle who lived in the LTTE controlled area. He moved to the army-controlled area for studies but when authorities found out about their LTTE links, they were forced to move back to the LTTE area. I remember this from when I was young. Because of my uncles links I was involved”.
I put that he was able to finish his studies, was not directly associated. He responded “Although I was not directly associated, I heard about the killings and the raping’s from my Uncle. My Uncle was in the [non-combatant] department. I heard a lot of news and it all went into my mind from a very young age”.
I put that in [City] there were a number of disappearances, human rights abuses and the Sri Lankan authorities did not target him or his family. He responded “My parents do not have any association. But my uncle. The CID knew it was not my parents but my Uncle”.
I explained DFAT[1]’s report stating former LTTE members may be monitored. Low-profile former LTTE members, including former combatants, those employed in administrative or other roles and those who may have provided a high level of support during the war may be monitored. Those people would have likely been detained and sent for rehabilitation. I put that he has not claimed that his uncle was detained or sent for rehabilitation or that anything happened to him. I put DFAT assessed that the number of high profile former LTTE Members living in Sri Lanka is small and the majority have already come to the attention of the authorities. Any remaining high profile LTTE members who come to the attention of authorities are likely to be detained, prosecuted etc. Neither he nor his family have that profile.
[1] 'DFAT Country Information Report - Sri Lanka', 23 December 2021

The applicant responded “my parents are not associated with the LTTE. It is my Uncle. He did not hold any high rank in the LTTE. He was involved in the [non-combatant] department in my home town. He encouraged students to go to higher studies. When he went to the army-controlled area to study, he was returned to the LTTE controlled area”.
I put to the applicant that he had indicated in his PVA that he could speak read and write English. He said that when he arrived a person in the community helped him to write the application and told him to only put the basic details and explain more in the interview. But he did not receive the interview invitation and did not attend and now he is facing a lot of problems.
I put he had signed the PVA application and he did not state that he had used anyone to assist in writing the application. I asked him why he claimed that he needed a community to member to fill out a form as he was [an Occupation], had been studying at [University] for 4 years, in English. He said that although he can read and write English, any had zero knowledge about the refugee application process. Some people told him that the Tamil community is helping, so he asked for help.
I put to the applicant that he had omitted to tell the Department he was hospitalised. He responded that the person who helped me advised him to only put minor details and then when he received an interview he can explain more. He said that when he submitted the application he will get a visa with work right and then he can earn some money and obtain a lawyer. But he did not get that notification for the interview. That is the reason for not providing many details.
I asked the applicant if he had a [Social media] page. He said that the [Social media] he used was deactivated by the CID. After coming to Australia he opened a new account.
He communicates with his family and friends overseas by telephone through apps like WhatsApp. After coming to Australia used Internet-based apps to call his family and friends.
He stated that he had an email address. Asked if he read his emails regularly he said that he now reads his emails regularly. But in the beginning he brought a device from Sri Lanka and it was not very advanced and there was no notification when he received an email. He now has an iPhone and regularly reads his emails. I asked him why he did not think it was important to tell the Department that he was hospitalised but he did think it was important to tell the Department he had been attacked. He responded that he understood that it was important to say he was attacked and hospitalised and he told that to the person that was helping him. But he was anxious and thought he could say it later.
I put to the applicant that he read the application signed the claims and the claims were typed. I did not understand how he could miss something as important as being hospitalised. He responded that the person advised him that he didn’t have to put a lot of details in the application and that it was to be submitted as soon as possible and then when he has an interview he can add the details. He relied on this advice.
I put to him that he had told the Department that he was involved in a scuffle on Remembrance Day celebration which was on [Day 1] May 2016 but he told the Tribunal he was attacked on [Day 2] May and the [News source] reports he provided suggested that this attack occurred on [Day 3] May. I put to him that this information was inconsistent. He said that Remembrance Day was held on [Day 1] May. When they return to university on [Day 2] May this scuffle occurred and he was attacked. Then the news report occurred on [Day 3] May.
I confirm that he was the only student on [Day 2, 3 or 4] May who was attacked at [University] for their [social media] posts. He said that many of the students were attacked. He was hospitalised and he was the event coordinator, is name was highlighted, and the minister became involved in this.
I asked him if there was any other [Subject] faculty student attacked, on [Day 2, 3 or 4] May, and who was hospitalised. He said he didn’t know. He was hospitalised and he didn’t know what happened to other students of the faculty. There were other hospitals in the area because he was arrested and hospitalised.
I put to the applicant that the [News source 1] article provided to the Tribunal does not suggest that there was a scuffle after Remembrance Day. He responded that the Remembrance Day event was held at the [Venue] in the University. There was no scuffle at that event. After he posted about that event, they attacked him when they returned to University.
I asked him if he had provided a copy of his [Social media] post. He said that after the incident when he was arrested by the police, the CID came, and they took his device and they deactivated his [Social media] account and he was unable to provide a copy.
I asked if any of his friends have a copy of it. He said that his [Social media] account was reported and deactivated. His friends cannot get a copy of it. If you do a search, it won’t come up.
After the incident in the University the police came and arrested 10 students including the applicant and took them to the police station. When they were taken to the police station, the police released the Sinhalese students and some of the Tamil students. The news then went to the university Dean. When he got involved, he was released, and went to the hospital for treatment.
He was taken to the police station around 10 in the morning. When they release him, it was around 3 or 3:30 pm. He was in the hospital until [Day 6]. After he received treatment, he was fearful of going out and being discharged from the hospital. X-rays were taken. He was charged on the same day. His parents also made a complaint on the same day.
I asked when he was remanded to appear in court. He responded that because this incident became public, the police asked his parents to withdraw their complaint, and his parents withdrew their complaint. They were concerned for his safety.
Asked what offence he was charged with he said that they alleged he was trying to re-group the LTTE and they threatened to lay charges under the PTA. I asked when he was going to court over those charges and he responded that “they did not officially lay charges on me and ask me to appear in court. Because the incident became public and ministers became involved, they released me from the station, and I went to the hospital”.
I put to him that charges were not laid against him and his parents withdrew their complaint. He responded that because the incident was reported in the media and the students went for a protest and it became serious, they were unable to take any action against him. But the matter went up to the parliament and they were not able to do anything to him at that time, but he does not know what plans they had.
I asked him to confirm that he was not charged with any offence in May 2016. He responded that they did not lay charges and then he went to hospital and they didn’t do anything at that time. He was in hospital until [Day 5] or [Day 6] or something. Until [Day 5] around 4 days.
I put that he must have had serious injuries if he was in hospital for that long. He responded “I stayed in the hospital longer for my safety. Because if I came out of the hospital the next day I may have been arrested. Because the matter had become public, and it went to the minister. I was waiting in the hospital for matters to settle”.
I put to him that people don’t remain in hospital if they are not ill. He said that “over there, they don’t do the scans immediately. I had to wait for the scans. I used that opportunity to stay in the hospital”.
I asked him why he had not provided any medical reports about is hospitalisation. He said that at that time he was not able to collect those records from the hospital. Then 2-months later, he was unable to bring those records when he came here.
I put to him that he had not provided a copy of the police report in regard to the incident. He said that the police did not lay any charges or report officially because they wanted to favour the Sinhalese students. If they wanted to do it officially, they would have to involve the Sinhalese students, so they tried to do it unofficially.
I put to him that he was not charged with any offence in Sri Lanka. He said that 2-months later they started looking for him to arrest him. I put to him that he had stated previously that he was living at home until coming to Australia. Asked how could they not find him, he said that because the matter became serious and went up to the Parliament they were loathed to settle. If they came to arrest him the matter would become more serious. He found out later they were asking questions about him.
I asked him to confirm this is all because he posted something on [Social media]. He said that he didn’t know what the Singhalese told the authorities. Although the [Social media] post was the beginning, it blew up. He was involved in [Organisation] and was very active in that. The Sinhalese students informed the police of is activities. They took it seriously.
I put to him that the [News source 1] blog covered this incident that happened. It wrote all about this incident. He had said that it went up to Parliament where it was discussed and it was in the public domain . There was a lot of media coverage. The [News source 1] report showed lots of people demonstrating. He agreed.
I put in that no other media has reported what has happened to him and these huge demonstrations and Parliament discussing him. He responded the incident was also covered in many other media. [News source 1] is the local media for [City]. It mentions is name. So, he gave this report. But it was reported to many other media.
I put to applicant that the [News source 1] blog comes with a disclaimer saying that it does not making any warranties about the completeness, reliability or accuracy of the information in that blog. He responded that it is a general disclaimer they post on all of their news. It does not only apply to you report.
I put to the applicant that the [News source 1] report did not suggest that Tamil students were LTTE sympathisers or that there was such an organisation as [Organisation] at [University] or any other university. He responded that the [News source 1] did not go into the details. “We did a lot of things like including fundraising. They did not go into the details because it will impact upon the future of the students. We did fund raising for people who lost things in the war. Those things were not reported. Sometimes, if they report LTTE news it will cause problems for [News source 1]”.
I put to applicant that the article that he had produced on [Day 1] May 2016 did not mention his name. The article dated [Day 3] May refers to him being attacked and placed into hospital, but this article was unable to be located by the Tribunal on the internet.
He responded that he has given the Tribunal the complete link.
I explained that the Tribunal wasn’t able to locate the article. The article dated [Day 4] May 2016 which referred to students marching was just typed onto a white sheet of paper and could have come from anywhere. The article dated [Day 6] May 2016, titled ‘[Title]’ concerning a protest outside the [City] health services offices demanding the arrest and legal action against Sinhalese students, was provided by the applicant. The version of this article commences with three written paragraphs and then shows a picture, followed by two written paragraphs. The article as shown on the internet, which the Tribunal has taken from the internet, in August 2016 commences with a photograph and is then followed by 5 written paragraphs. This suggests that the document produced to the Tribunal is not a true copy of the original document.
He responded that he has all of the links with him which he can send to the Tribunal via his lawyer. It was translated by an Australian interpreter. No cheating was done with the documents. He can provide all the links.
I explained that the links that provided were unable to be found. The only one that could be found was the one that showed a different version of the article from the one claimed to be copied off the blog. He said that he accessed those links before coming to the Tribunal, this morning.
I asked if [News source 1] is a blog. He said it is a news channel, not a blog. I put that it states that it is a blog. It also states that it does not independently verify the information. [News source 2] also did an article about the attack and it included a name of the student. [Mr D]; [age]-year-old who ran a [Social media] page. Another report from [News source 3] names the student as [Mr DD, similar spelling]. [News source 4] reports extensively on the issues as to what happened to this student who was attacked and names the student as [Mr DD, similar spelling]. I put to him that [News source 4] does not name him as the student who was attacked. He responded he could provide the Tribunal with more news reports and links. He provided [News source 1] because it specialises in local news.
I asked him to explain why [News source 2] and [News source 4] have not named him as the student being involved. He said he does not know if any other students were attacked or if the news channels reported what they have. He is not sure why they have reported that students name. But [News source 1] reported his name because they specialise in local news in that area.
I asked him what he feared about returning to Sri Lanka. He said that on his return, they will torture him. They have all of his records. The current government are arresting all of the protestors who are protesting peacefully. They have recently created false news and they will arrest him on his return.
I suggested that it would be rather unlikely that the current government is interested in the students of [University] given the current circumstances the government is facing. He responded that in August 2016, authorities visited his home. He was not at home fortunately. They told is parents to hand over him to the police. When he found out, he told his manager who helped him to get out of the country.
I put to the applicant that whilst there were problems between the Sinhalese students and the Tamil students at [University], it had nothing to do with the LTTE. The LTTE is a spent force. The independent evidence before me indicates that the former government (before the changes this year) was concerned about the LTTE rising up again. They were concerned about the LTTE in the diaspora, that is, overseas, where there is money to create these organisations. But a group of students having a fight is not something the government would be interested in now or in 2016. He was never charged with an offence in Sri Lanka and able to obtain a passport in his own name, indicating he was of no interest to the Sri Lankan authorities in 2016, and he does not have a profile in Australia adverse to Sri Lanka since he has been here. He was not involved in pro-LTTE activities or anti-Sri Lankan activities in either Sri Lanka or Australia.
I also put to the applicant that he has claimed to have a pro-LTTE profile whilst in Sri Lanka but people who were LTTE after the war, were put in camps and rehabilitated them. I put he had nothing to do with the LTTE during the war. I put that he has not committed any offence under Sri Lankan legislation.
I put to the applicant that as for being a failed asylum seeker, there is no evidence that Sri Lankan authorities seek to harm failed asylum seekers. Any low-profile former LTTE members have been able to return to Sri Lanka and DFAT is not aware of any returnees being subject to any monitoring or harassment by authorities. He would be able to return to his home and even though the current situation is dire economically, the independent evidence does not suggest that Tamils are targeted during this economic crisis.
The applicant responded that when the police visited his home, if he was there, they would have arrested him. When he was in Australia, he spoke with two friends who were arrested, who told him that the police questioned them about him. His friends have told them that they were told he paid money with the help of his company to go through the airport. It was an international company, they had influence and he was able to fly legally. In Sri Lanka, if you pay money, anyone can obtain a passport.
I expressed my difficulty with this claim that his company assisted him through the airport. Media reports about the incident in 2016 suggests that cases went to the Magistrates Court. Academic and non-academic staff confirmed that ethnic motivated attacks were taking place and that Sinhalese students were acting in an aggressive manner against students and even staff. Parties demanded that action be taken against the students. There were reports that showed that academic and non-academic staff were supporting Tamil students complaints that the Sinhalese students were inciting violence against Tamil students and workers at the [University]. Since those 2016 reports, there have been no further reports of violence at the University, which suggests that it has settled down. If the matter was continuing to be a problem, there would be some mention in independent reporting. He responded that there were some minor incidents in the city. These were more in the news because of the seriousness. After this incident the Sinhalese students may not be involved in this kind of violence. But here’s friends have told him that the police have been questioned about him and his family and that the government have here’s records so they will harm him on his return.
I asked if anything happened to this family. He said that they have questioned his Uncle in relation to this incident. They found that it was not related to him and he was released. He came to know this from his friends. They have also been questioned.
I put to him that he did not advise the Tribunal that his uncle was questioned about him. He responded that he heard this information through his friends. He does not have any evidence to establish. He is just telling the Tribunal in this interview. He is friends told him that they have been arrested because the police wanted to find him but when they found out that he was in Australia, so they released them.
I put to him that he does not claim to be a Member of the LTTE or involved with the LTTE. There is no independent information that any of the students who were involved in [University] with the Sinhalese students are being pursued by Sri Lankan authorities for any reason whatsoever. He responded that he is main argument is that because of the FB posts that he made which shows Tamil genocide and many other government atrocities he became a target of them otherwise he would have been a normal student. Because of those posts he became a target. That is the reason he fears for his return to Sri Lanka. It is not like they have discontinued his file. They still have a file on him. On his return they will take me. It might take 2 or 3 years and they will spoil his future. That is here’s concern of returning to Sri Lanka.
I asked him to confirm that he has been posting anti-government criticism on his [Social media] page. He said “yes, I was previously posting about the Mulikhavil, which was the final phase of the war, where the government killed a lot of Tamil people including children. That became the starting point where I became a target for them”.
I put to him that he had said they shut him down on the same day. He said “Yes”.
I put to him again that he stated previously that they shut the page down. He said they asked for his device for search. They asked him to log in to [Social media]. They may have taken evidence from that account and then they deactivated that account and returned his device. He believes they still have evidence of those posts.

I asked what the MP did about this. He said that the MP is from the Tamil community. He is a former professor. They invited him to events. After this event he came to the University and he gave voice to the Tamil students. His arrival gave voice to the incident. If he didn’t come then it wouldn’t have been a major event.
I put that [News source 1] suggested the MP requested the complaint against him be withdrawn. He said that it is reported to his parents where they are threatening to withdraw. That is what is in that news report.
At the conclusion of the hearing the Tribunal gave the applicant additional time, 2 weeks, to provide further information.
On 30 August 2022 the Tribunal wrote to the applicant pursuant to s.424A inviting the applicant to comment on information that may form reason or part of the reason for affirming the decision under review. The Tribunal stated:
At a Tribunal hearing held on 18 August 2022 the Tribunal advised you that an article from [News source 1] dated [Day 6].5.2016 with its translation [annexure A] that you provided to the Tribunal was not identical to the copy of the article from [News source 1] dated [Day 6].5.2016 the Tribunal had viewed on the internet.
The Tribunal attaches a copy of the [News source 1] Article [annexure B] it has downloaded from the internet and a translation, obtained by the Tribunal.
The differences in articles are as follows:
1.Your copy A stated that [the applicant] was attacked
2.Internet copy B indicated [Name, partly similar to applicant’s], a second year [Subject] student was attacked.
3.Your copy A indicates that official of the CID have gone to the house of the student and requested him to withdraw the complaint. [Mr E] MP stated that this action of the CID officers has to be condemned.
4.Internet copy B stated the police investigation division had gone to the student’s home and requested them to withdraw the complaint lodged at the police station. [Mr EE, similar spelling] said that this should be condemned.
5.The position of the photographs and the written words of the article are not identical. Article A had 3 paragraphs before a photo and 2 paragraphs after the photo whereas Article B has 2 paragraphs before a photo and 3 paragraphs after the photo
This information is relevant to the review because it suggests that the article A you have produced to the Tribunal is not identical with article B located on the internet and this information is inconsistent. It also suggests that the CID did not go to your home.
If we rely on this information in making our decision, we may find that it undermines your credibility and affirm the decision under review.
At a Tribunal hearing held on 18 August 2022 the Tribunal drew to your attention report from [News source 2] naming the student who was attacked on [Day 3] May 2016 as [Mr D].
It is reported that this student is a 22 year old who runs a [Social media] page [Page name] and was the person who was attacked. Another report from [News source 3] names the student as [Mr DD, similar spelling]. [News source 4] has also referred to him as [Mr DD, similar spelling].
[News source 2, URL 1]
[News source 4, URL 1]
[News source 3, URL]C:\
·The articles above indicate that [Mr D/DD] runs a [Social media] page named ‘[Page name]’ to share news related to university academic activities and related news, on which he shared a picture commemorating the Mullivaikka massacres on [Day 1 May]. [Mr D/DD] was admitted to [Location 5, spelling 1] hospital on Tuesday with an injury he received to his left eye sustained due to the repeated hits to his face. The student mentioned above was attacked by Sinhalese students because he registered a photograph titled [Day 1 May] on his [Social media]
·You have provided a translation of an article claimed to be from [News source 1] on [Day 3] May 2016 naming you, a second year [Subject] faculty student, as the student who was attacked and admitted to [Location, spelling 2] Hospital for treatment. The photograph attached to the article showed a male person lying on a bed without any identification of the person. The article was unable to be viewed on the internet by the Tribunal.
This information is relevant to the review because it suggests that you were not the student attacked and that you were not taken to hospital. The articles do not suggest that the student who was attacked was accused of involvement with the LTTE.
If we rely on this information in making our decision, we may find that it undermines your credibility and affirm the decision under review.
On 19 September 2022 the applicant responded as follows:
Alleged differences in Article A and Article B
From the onset, we submit that the Applicant provided the exact same link which the Tribunal confirmed they used to retrieve the news article and that if you compare the actual Tamil text, it is exactly the same. We submit that weight should be given to the fact that the actual contents of the article are exactly the same, and it is the formatting of the article which is different. We submit that the difference in how the pictures are presented in articles differ as a consequence of which the browser was used to open and download the article.
Moreover, our client presented the link “[URL 4]“ to interpreter [Mr F]” via email to [Email address] on 8^th of August 2022 for translation. Please see attached a copy of this email.
We submit that our client should not be held accountable for the English translation of the articles as this was provided to him by a NAATI accredited translator.
We do however would like to point out that the difference in the names ‘[Name, partly similar to the applicant’s]’ and “[the applicant]’ is caused by transliteration and that the ‘Police Investigation division’ and ‘Criminal Investigation Division ( CID )’ are used interchangeable amongst different people.
We submit that the apparent discrepancies between the two articles should not be used to undermine our client’s credibility.
Moreover, we submit that regardless of whether the member accepts our client’s claims, our client’s name and picture has been published on the internet in 2016 and is still publicly available even to this date, which will undoubtedly exacerbate the harm our client will face should he be returned to Sri-Lanka.
Different names appearing in different news sources
The member is relying upon other articles to dispute our client’s claims for protection. We submit that our client never purported to run a [Social media] Page but instead posted a post related to Mullivaikkal Remembrance day on his [Social media]. Our client also never purported to injury his left eye or face, and that the picture of our client published in the news does not indicate any eye injuries or face injuries. As such it is apparent that there may have been several attacks made by Sinhalese students in relation to [Social media] posts.
Additionally, we provide again below the link to the article published on the internet which names and published an image of our client on the internet. [News source 1, URL 1]C:\doc-conversion\inputToHtml\1
The applicant’s personal and circumstantial attributes which could attract adverse attention if he is returned involuntarily to Sri Lanka are;
a.    Tamil ethnicity
b.   Applicant’s involvement as [Role] of [Organisation] at [University]
c.    Applicant’s known activity of posting Anti-Sri-Lankan government propaganda on his [Social media] Account with respect to Genocide Remembrance Day,
d.   Applicant was attacked by Sinhala students and was investigated by the CID on [Day 2] May 2016
e.    Applicant was sought out by Sri-Lankan police in August 2022, after two of his friends went missing
f.    Applicant’s involvement in Martys Remembrance Day, Mullivaikkal Remembrance events in Sydney.
It is our submission that our client has been subjected to serious harm amounting to persecution, in the form of:
·     significant physical harassment by the Sri Lankan authorities in the form of repeated detentions and interrogations
·      significant physical ill-treatment, when he was beaten, tortured by the Sri Lankan security forces
Should he be forcibly returned to Sri Lanka, there is a real chance that he will continue to face serious/significant harm at the hands of the CID, TID, as well as other Sri Lankan military forces, due to his cumulative profile.
Our client’s feared persecutors are state agents .We submit that our client faces a real chance of serious harm in all areas of Sri-Lanka and that there is no effective protection available.
We request our client’s claims and profile be considered cumulatively and that a decision be made with regard to the totality of the circumstances that may give rise to a well-founded fear of persecution.
It was further submitted that in regard to Tribunal’s concerns of there not being any news in recent times of University students being pursued by CID, the representative provided instances where students have been arrested under the Prevention of Terrorism Act in Sri-Lanka, as recent as August 2022. The representative referred to a 5 May 2019, Tamil Net reported about two Tamil student leaders of Jaffna University. Another a report on 22 August 2022, of 3 Sinhalese student leaders arrested and held under the Prevention of Terrorism Act. The representative also opined that during the hearing the applicant expressed his genuine political views and beliefs in support of the LTTE, an independent state of Tamil Eelam as well as strong opinions against the Sri- Lankan Government. It was submitted that such an opinion paired with his previous history in Sri-Lanka will draw the applicant to the scrutiny of the Sri-Lankan government how would look to detain and arrest him under the still enforced Prevention of Terrorism Act. The Sri Lankan security forces are monitoring these gatherings outside the country.
It was also submitted that the ITJP, reporting in July 2015 on interviews with forced returnees who had been detained, tortured and/or sexually abused stated that witnesses mentioned that they or their family members had been questioned about their participation in antigovernment protests or war commemoration events abroad. Some reported the Sri Lankan security forces had showed them, or their families, photographs of themselves at these protests. Given the credible reports of the Sri Lankan authorities monitoring the movements of Tamils abroad and the credible reports of those same persons being abducted, detained and tortured on return to Sri Lanka because of their pro-LTTE and anti-SLA activities abroad, that there is a real chance that the applicant will face serious harm if returned to Sri Lanka for his activities in Australia both at public memorial events in support of former LTTE cadres.
Also submitted were excerpts in the Country Policy and Information Note Sri Lanka: Tamil Separatism June 2021 report and excerpts from the UK Home Office Country Policy and Information Note Sri-Lanka: Tamil Separatism June 20221, when assessing the applicant’s sur place claims of attending pro-Tamil events during his time in Australia and the Sri Lankan authorities and government continues to operate an extensive intelligence- gathering regime, acquiring information through the infiltration of diaspora organisations, the photographing and videoing of demonstrations and the monitoring of the internet and unencrypted social media citing the Report of a Home Office fact-finding mission to Sri- Lanka dated 20 January 2020. As someone who has attended and participated in Pro Tamil activities that support the Tamil fight for self- determination and given the applicant’s former arrest in Sri-Lanka as someone who was associated with the LTTE and his current political views against the Sri-Lankan regime, positive sentiments on Tamil Eelam, and political opinion in support of a separatist state, alongside with his activities in Australia participating and attending pro-Tamil events there is a real chance that during the identification checks at the airport described above or while on remand on charges under the I&E Act, the applicant will come to the adverse attention of the CID over and above a person who has only committed the offence of leaving the country illegally because of his pending criminal investigations.
Information from DFAT was highlighted and it was submitted that as a consequence of this DFAT information there is a real chance that the applicant will be detained, interrogated during which he will be mistreated, killed or charged with an offence, including under the Prevention of Terrorism Act (PTA), should he return to Sri Lanka. It was submitted the applicant has already come to the adverse attention of the SRI-Lankan Authorities during his time in Sri-Lanka and given that he has been politically active in attending Pro Tamil events in Australia, he will be viewed as a LTTE supporter or a security risk when he departed Sri Lanka and he will be held incommunicado at an unknown place of detention or on the fourth floor of the CID or at the very least will be charged with offences under the PTA.
Country Information
DFAT 23 December 2021 country report Sri Lanka states:
5.21. Returnees who departed Sri Lanka legally are not required to face a court, as no offence under the I&E Act applies.
5.28 Refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. 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.
UK Home Office found that the processing of returnees at the airport can take several hours due to the administrative processes, interview lengths and staffing constraints. All returnees are subject to these standard procedures, regardless of ethnicity and religion, and sources state that there is no systematic policy of discrimination towards specific ethnic or religious groups. Detailed reporting included photographs of the airport receiving facilities. If the person is found to have links to the LTTE or if wanted for previous crimes committed in Sri Lanka that person may face further questioning by the CID based at the airport. This process can take a long time as checks need to be made with the persons local police and there is no central police database.
Sri Lanka returnees are questioned at the airport and where illegal departure is suspected under the I & E Act police at the airport make an arrest.

100. DFAT assessed that there are no legal barriers to former LTTE members participating in public life, including in politics.
101. UK Home Office[2] stated Office Representatives from the Human Rights Commission noted that prominent LTTE sympathisers who actively support the LTTE or raised funds for them in the past may be monitored or questioned although interest in them may depend on their past involvement and any current involvement with diaspora groups.
[2] UK Home Office Report on Sri Lanka , published 20 January 2020, after a fact-finding mission to Sri Lanka conducted between 28 September and 5 October 2019
REASONS AND FINDINGS
102. I have listened to the hearing tape prior to writing this decision.
103. As the Department has accepted the applicant’s identity, I therefore accept that the applicant is a national of Sri Lanka and is not a national or citizen of any other country or has a right to enter and reside in any country other than Sri Lanka. Therefore, I find that the applicant is not excluded from Australia's protection by s.36(3) of the Act. I also find that Sri Lanka is the applicant's “receiving country” for the purposes of s.36(2)(aa).
104. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, the fact that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
105. There may be errors, omissions or misunderstandings that cannot be automatically attributed to an applicant's credibility or the applicant not being truthful. I am mindful of AAT guidelines on the assessment of credibility. I am also mindful that in the process of asking further questions and commenting on those questions during the process of assessing an applicant's claims may mean that it is feasible an applicant will provide new information when he is asked to respond to or provide more details. I am also mindful that there can be interpreting errors, cultural differences and plausible explanations for inconsistencies other than deliberate falsehoods. I am also mindful that applicants who suffer from nervousness, anxiety, depression and or post-traumatic stress disorder may have difficulty remembering all and recounting aspects of their claims. In particular they may block out or neglect to mention upsetting or traumatic experiences. I am also mindful that just because one part of an applicant's claim is exaggerated does not mean that the entirety of the claim is dishonest.
106. The civil war in Sri Lanka ended in May 2009. The applicant claims, and I accept, that he is an ethnic Tamil from [City] which was an LTTE controlled area at times during the civil war. He initially lived in the LTTE controlled [City] until 2000 and when he went to high school, he lived in the government controlled area.
107. I do not accept that the applicant is a witness of truth. There are inconsistencies and implausibility in the applicant’s claims, as discussed below.
108. Firstly, the applicant, in his PV application, stated that during a scuffle at the university at the May 2016 Remembrance Day celebration, when Sinhala students protested, the police took six Tamil students, including the applicant, and four Sinhala students for interrogation. The Tamils were questioned at length and the applicant was threatened with torture if he did not admit his LTTE links. He was released, with a warning, after the Dean’s intervention. Two days [months] later, two of his friends were taken again for questioning.
109. In a submission to the Tribunal, the applicant claimed that he was a member, a leader, of the ‘[Organisation]’ who organised Martyrs Remembrance Day and Mullivaikkal Remembrance Day. He advocated for the rights of Tamil students and for those families whose relatives were missing during the war. On [Day 2] May 2016, when Sinhala students at university protested against their Mullivaikkal celebrations, the applicant was singled out and attacked by Sinhalese students, accused of being an LTTE supporter and told to remove his post from [Social media]. He was beaten, there was a brawl, he was arrested with five other Tamils, taken to [Location 4] Police station, accused of spreading propaganda and promoting the LTTE and he was then hospitalised.
110. His explanation for not providing this information to the Department was that he did not seek legal advice when preparing his PV application as he did not have the financial means to do this. His English was limited at the time and a male Tamil community member helped him write a brief response from Q87 to Q96 of the visa application form. He remembers telling him about his post on [Social media] which led to his hospitalisation, but he said that “we should just provide very basic general information now and when I face my interview, I would be provided with the opportunity to provide more information about my claims for protection”. He was very rushed for time which is why the applicant believed important aspects were omitted in his response to Q89. He believes the haste that the community member was in, is the reason why, in his initial application, a lot of important aspects of his claims for protection such as the [Social media] post, being attacked and hospitalised were omitted from his application. He intended to provide that information at interview, however when his interview was scheduled he did not receive notification of the interview in time and missed the interview date. He was expecting the interview notification to come in the post, but did not receive any letters. At that time, he did not proactively check his email and when he happened to check it he saw that he had received by email an interview attendance request, but by this time the interview scheduled date had elapsed and he had already received a refusal notification email.

111. Section 423A of the Act, in relation to protection visa applications made on or after 14 April 2015, states that if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made and the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented before the primary decision was made, the Tribunal must draw an inference unfavourable to the credibility of the claim or evidence.
112. I reject the applicant’s explanation for the omission of such important information as being hospitalised and also for posting on [Social media] information that inflamed Sinhala students to take action against him. The applicant stated in his PV application that he could speak, read and write English. He attended university where the language of instruction was English and Tamil. He told the Tribunal that he can read and write English. At Q6 of Form 866B the applicant responded ‘no’ to whether he required assistance with the form. I do not accept that when he arrived a person in the community helped him write the application and told him to only put the basic details and explain more at an interview. He is [an Occupation], a person who had been studying at [University] for 4 years, partly in English. Whilst he claims he had no knowledge about the refugee application process and that he was anxious, the applicant said he was aware that by making an application for a PV he would obtain work rights immediately and earn money to instruct a lawyer. I am of the view that his explanation that he had no idea of the refugee process and was told to only put minor details and explain more at the interview, that he inadvertently failed to attend an interview by not reading his emails, are creation, made in order to explain the omission of important relevant claims, such as being hospitalised.
113. I draw an inference unfavourable to the credibility of the claims.
114. Secondly, the applicant told the Department, in his PV application, that he was involved in a scuffle at the Remembrance Day celebration, on [Day 1] May 2016.
115. The applicant provided the Tribunal with an article, [News source 1, title, author] published [Day 1] May 2016, that stated:
[Article 1 title]
Today marks the seventh anniversary of Mullivaikkal Genocide [18.09.2009].ln remembrance of this incident, a memorial service was conducted at the University Lecture Hall.
On this occasion, the students of all faculties gathered together, lit candles, and remembered their relatives. In addition to this, they have arranged a Special Prayer Meeting to be held at the University Aalady Vinayagar Temple.
116. It was put to the applicant that no scuffle occurred on this day, as claimed in his PV application. He responded that Remembrance Day was held on [Day 1] May but he was attacked on [Day 2] May. The Remembrance Day event was held at [a venue] in the University and there was no scuffle at that event. As the applicant did not claim to the Tribunal, to have been in a scuffle on [Day 1] May 2016, he did not provide an explanation for this inconsistent evidence of a scuffle having occurred on [Day 1] May 2016, as claimed to the Department.
117. Thirdly, the applicant claimed at hearing, that when they returned to university on [Day 2] May 2016 a scuffle occurred and he was attacked. I put to the applicant that the [News source 1] article ‘[Title]’ [referred above] did not suggest that there was a scuffle at Remembrance Day and he said that the scuffle was after Remembrance Day. He said that after he posted about that event, on his [Social media] page, they attacked him when they returned to University.
118. The applicant provided another article, dated [Day 3] May 2016, from [News source 1] ‘[Article 2]’, stating:
Many Sinhalese students have jointly attacked a Tamil Student today in [ University].
[The applicant], a second year [Subject] faculty student, is the student who was attacked and has been admitted to [Location 5, spelling 2] Hospital for treatment.
The student mentioned above was attacked by Sinhalese students because he registered a photograph titled [Day 1 May] in [Social media] with a view to remember the final stage of war in Mullivaykkal.
Police are 'undertaking urgent investigations in this regard.
119. The applicant told the Tribunal that the attack occurred on [Day 2] May 2016. When put to him that the article stated that the attack occurred on [Day 3] May 2016, he said that the attack occurred on [Day 2] May but the news report was on [Day 3] May. I reject his explanation, the report he provided was dated [Day 3] May and stated that the Sinhalese students had that day attacked a Tamil student.
120. Fourthly, I accept that an attack occurred on a Tamil student on [Day 2] May 2016 at [University] after the student had posted on a [Social media] page. [News source 2][3] also wrote about a student, [Mr D], a 22-year-old who ran a [Social media] page and was attacked. Another report from [News source 3][4] named the student as [Mr DD, similar spelling]. I put to the applicant that these reports do not name him as the student who was attacked. He responded that he could provide the Tribunal with more news reports and links. The applicant was given additional time at the end of the hearing to provide additional information. He provided [News source 1] links as previously, no other independent information.
[3] [News source 2, URL 1]C:\doc-conversion\inputToHtml\5
[4] [News source 3, URL]
121. I asked the applicant to explain why the articles[5] did not name him as the student being involved. He said he does not know if any other students were attacked or if the news channels reported what they have. He is not sure why they have reported that students name. But [News source 1] reported his name because they specialise in local news in that area.
[5] [News source 4, URL 1]
122. I accept that the different reports from news sources named do not spell the name of the student exactly the same ie [Mr D/DD] and one report named the hospital where the student was admitted as [Location 5, spelling 3] hospital[6] and others as [Location 5, spelling 1] hospital[7]. Nevertheless, the variation in the spelling, on a fair reading, is minor. I am satisfied the articles refer to the same person and the same hospital.
[6] [News source 4. URL 1]
[7] [News source 2, URL 1] and [News source 3 URL]
123. [News source 2][8] describes itself as a news portal with a focus on providing context and commentary on Tamil affairs. [News source 4][9] describes itself as an independent and not-for-profit newswire service that provides up to date news with a Tamil perspective on issues concerning Tamil people in the island of Sri Lanka. The [News source 1] blog[10] comes with a disclaimer saying that it does not make any warranties about the completeness, reliability or accuracy of the information in that blog. It also stated that it does not independently verify the information. When put to the applicant, he responded that it is a general disclaimer [News source 1] post on all of their news. It does not only apply to this report. As [News source 1] is a blog and does not independently verify information on the blog, I prefer the information provided by [News source 2]etc as to the name of the student who was attacked at the university by Sinhala students for a [Social media] post on [Day 2] May 2016.
[8] [News source 2, URL 2]C:\
[9] [News source 4, URL]
[10] [News source 1, URL 2]
124. Fifthly, the applicant has provided a copy of [News source 1], [Day 6] May 2016, ‘[Article 3]’ [article A], and a translation. The report, provided by the applicant, named the applicant as the second year student of [Subject] faculty as the victim of an attack on [Day 2] May 2016, after posting a picture on [Social media].
125. A Tribunal search located the article [News source 1], [Day 6] May 2016 [article B] on the internet but the internet article was not identical to the article provided to the Tribunal. The differences were:
§Article A stated that [the applicant] was attacked whereas Article B stated [Name, partly similar to applicant’s], a second year [Subject] student was attacked.
§Article A stated that an official of the CID had gone to the house of the student and requested him to withdraw the complaint. [Mr E] MP stated that this action of the CID officers has to be condemned. Article B stated the police investigation division had gone to the student’s home and requested them to withdraw the complaint lodged at the police station. [Mr EE, similar spelling] said that this should be condemned.
§The position of the photographs and the written words of the article are not identical. Article A had 3 paragraphs before a photo and 2 paragraphs after the photo whereas Article B had 2 paragraphs before a photo and 3 paragraphs after the photo

126. The applicant responded to a s.424A letter regarding these inconsistencies. He stated that he provided the exact same link which the Tribunal confirmed they used to retrieve the news article, providing a copy of the email sent to the translator, and further stated that if the actual Tamil text is compared, it is exactly the same. The formatting of the article is different and the difference in how the pictures are presented in the articles differ as a consequence of which browser is used. Whilst there might be a difference of location of pictures via different web browsers, and the applicant has not provided the names of the browsers that were used to provide this explanation, nevertheless the name of the injured student was different.
127. The Tribunal provided a copy of an independent translation of article A. Article A translation was provided by the applicant, stating that he, [the applicant] was attacked whereas Article B translation, sourced by the Tribunal, stated [Name, partly similar to applicant’s]. I note that Google is not an accepted authoritative method of translation. I note that a Google translation is consistent with the Tribunal’s translation.
128. The applicant’s explanation was that the name difference is a transliteration. Transliteration[11] is the process of transferring a word from the alphabet of one language to another. Transliteration helps people pronounce words and names in foreign languages. A transliteration only gives you an idea of how the word is pronounced, by putting it in a familiar alphabet. It changes the letters from the word's original alphabet to similar-sounding letters in a different one. I accept that the first name, [the applicant’s spelling/similar spelling] may be argued is a transliteration. I do not accept the surname, [the applicant’s spelling/different spelling] is a transliteration, it is in my view a different name because the words are not the same length and when pronounced sound different.
[11]
129. I prefer the Tribunal’s accredited translator’s version. I am satisfied that the [Day 6] May 2016 [News source 1] article, does not refer to the applicant.
130. Sixthly, the applicant also provided a translation of an article claimed to be from [News source 1] on [Day 3] May 2016 naming him, a second year [Subject] faculty student, as the student who was attacked and admitted to [Location 5, spelling 2] Hospital for treatment. A photograph attached to the article showed a male person lying on a bed without any identification. The photograph was taken with the person’s feet being shown prominently and the face of the person lying on the bed was not clear.
131. It was put to the applicant, by s.424A that this article was unable to be viewed on the internet by the Tribunal. At the Tribunal hearing the applicant said that he said that he accessed those links before coming to the Tribunal. Even were the Tribunal to locate this blog on the internet, as the photograph did not identify the applicant as being the male person lying on the bed and the face of the person was not clear and as [News source 1] does not independently verify information, I do not accept this article is of any probative value. I do not accept that the applicant was admitted to hospital in 2016.
132. Seventhly, as for his claim that Tamil students at the university were perceived to be LTTE sympathisers/supporters or that there was such an organisation as ‘[Organisation]’ at [University] or any other university when I put to him that [News source 1] did not make these claims he responded that [News source 1] did not go into the details. “We did a lot of things like including fundraising. They did not go into the details because it will impact upon the future of the students. We did fund raising for people who lost things in the war. Those things were not reported. Sometimes, if they report LTTE news it will cause problems for [News source 1]”. I reject his explanation. I am of the view that were the Tamil students at the university to be perceived to be LTTE supporters or sympathisers some 7 years after the civil war had ended, some mention would have been made in other media reporting on the events that occurred at the university, and [News source 1] would have mentioned it.
133. Eighthly, it was suggested in the s.424A response, that that there may have been several attacks made by Sinhalese students in relation to [Social media] posts as the applicant never purported to injury his left eye or face, and that the picture of the applicant published in the news does not indicate any eye injuries or face injuries. I reject this explanation. There was media reporting about the attack on a [Subject] student for a [Social media] post. I am of the view the applicant created his claim of being the student involved in order to obtain the visa sought.
134. Ninthly, the applicant was able to depart Colombo legally with a passport issued in his own name. When put to the applicant he said that the company was a large scale international company, they had influence in the airport and he was able to leave Sri Lanka without problems as they used some travel agents. I accept that an international company would use travel agents to arrange staff travel. Whilst he claims to have told his manager he had problems, I do not accept as plausible that a large scale international company would assist the applicant to escape Sri Lanka using its influence via a travel agent. His legal departure with his own passport indicates he was not of interest to the Sri Lankan authorities at the time of departure. Therefore I also do not accept that the police told his friends that he paid to go through the airport. I am of the view it is an invention made in order to assist him obtain the visa sought.
135. In light of these findings I do not accept that the applicant is a witness of truth.
136. The applicant claims that the government imputed an adverse pro-LTTE profile to him because his uncle had an adverse LTTE profile. In [City] there were a number of disappearances and human rights abuses during the war.
137. The applicant claims that his family has LTTE links, everyone knew they were LTTE sympathisers. The applicant claimed that the links with LTTE were because of his paternal uncle who told him about killings and rapes and this went into his mind from a young age. His uncle was an LTTE member and everyone knew they were LTTE sympathisers. DFAT[12]’ reports that former LTTE members may be monitored. Low-profile former LTTE members, including former combatants, those employed in administrative or other roles and those who may have provided a high level of support during the war may be monitored. Whilst his uncle may have been involved in the [non-combatant] department in his hometown and he encouraged students to go to higher studies and he was returned to the LTTE controlled area, this occurred prior to the civil war ending in 2009. His uncle was not detained nor sent for rehabilitation and nothing happened to him. I do not accept that his uncle had an adverse profile as a LTTE supporter/member.
[12] 'DFAT Country Information Report - Sri Lanka', 23 December 2021
138. The Sri Lankan authorities did not target the applicant’s parents, post the civil war. His father was able to purchase land for farming post-civil war and the applicant was able to complete high school and undertake tertiary studies. He obtained employment and worked as a [Job task 1]. After the war the applicant’s family were not place into a camp, nor were they arrested, the applicant attended school and was able to study at university and obtain a job. His father was able to buy land. I do not accept that everyone knew they were LTTE sympathisers or had an adverse profile imputed to them because of the applicant’s uncle.
139. I am satisfied that the applicant did not have a pro-LTTE profile imputed to him because of his family and his relatives, his uncle.
140. It is claimed that the applicant participated in a memorial event in Sri-Lanka in 2016 and published a photo and message in tribute to innocent Tamils killed by the Sri-Lankan authorities on his [Social media] account. He told the Tribunal, by submission, that he shared on his [Social media] account, a picture of himself lighting a lamp at the Genocide Remembrance Day function organised by the committee at university, with words commemorating the innocent that were killed in the war. In his 19 September 2022 s.424A response it was submitted by the applicant’s representative that the applicant never purported to run a [Social media] Page but instead posted a post, related to Mullivaikkal Remembrance day, on his [Social media]. The applicant told the Tribunal that the CID deactivated his [Social media] account and he was unable to provide a copy. His friends also did not have a copy. In light of my findings the applicant is not a witness of truth, I reject his claim that he posted any material on [Social media]. Therefore I do not accept that the authorities closed down his [Social media] or that he will be questioned on his return for a [Social media] post.
141. As the applicant is not a witness of truth, I find that
§ he did not post anything on [Social media],
§ he did not post anti-Sri Lankan government propaganda on his [Social media] Account with respect to Genocide Remembrance Day
§ he was not attacked by Sinhala students when at university for [Social media] posts or any other reason,
§ he was not investigated by the CID nor was he arrested or charged for any offence
§ he was not a member of [Organisation] and would organise Martyrs Remembrance Day, Mullaivakkal Remembrance Day, advocate for the rights of Tamil students and for those families whose relatives were missing during the war,
§ he was not hospitalised in August 2016,
§ authorities did not visit his home, his uncle was not questioned about him
§ he was not assisted by his employer to leave Sri Lanka or that any money was paid at the airport for him to leave Sri Lanka
§ he was not sought out by Sri-Lankan police in August 2022
§ he was not suspected of having any LTTE links or imputed to have LTTE, his family was not suspected of having LTTE links.
§ two of his friends did not go missing.
§ He did not suffer physical harassment by the Sri Lankan authorities in the form of repeated detentions and interrogations or physical ill-treatment, when he was beaten, tortured by the Sri Lankan security forces.
142. I have considered the applicant’s claims of harm in Sri Lanka singularly and cumulatively. I am satisfied that the applicant did not suffer serious harm for a refugee reason in Sri Lanka and he came to Australia, on a tourist visa.
143. I am required to assess whether the applicant will suffer serious harm, for a refugee reason, on his return to Sri Lanka within a reasonably foreseeable future.
144. The applicant is an ethnic Hindu Tamil. I rejected his claims that he had an adverse profile in Sri Lanka as a supporter or imputed supporter of the LTTE or that he or his family had close links to the LTTE. As I do not accept that the authorities closed down his [Social media] I do not accept he will be questioned on his return for a [Social media] post.

145. According to DFAT[13] the government is sensitive to the potential re-emergence of the LTTE, former LTTE members may be monitored. ‘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. Low-profile LTTE members who come to the attention of the Sri Lankan authorities – particularly if they are suspected of having a combat role during the war – would likely be detained for questioning and may be sent for rehabilitation. The number of high-profile former LTTE members living in Sri Lanka is assessed to be small and the majority have already come to the attention of authorities. Any remaining high-profile former LTTE members who came to the attention of the authorities would likely be arrested, detained and prosecuted, and, once they had completed their sentences, would likely be subjected to some form of rehabilitation and continued monitoring. The applicant does not meet this criteria. Therefore, I am satisfied there is not a real chance that the applicant will be imputed to have an adverse profile as a low-profile LTTE member or supporter.
[13] 'DFAT Country Information Report - Sri Lanka', 23 December 2021
146. The applicant’s representative claims that Sri Lanka’s prime minister has warned of a food shortage as the island nation battles a devastating economic crisis and promises to buy enough fertiliser for the next planting season to boost harvests. I accept that in Sri Lanka, in the past year, people have been struggling with daily power cuts and shortages of basics such as fuel, food and medicines[14]. Inflation is running at more than 50%. The country doesn't have enough fuel for essential services like buses, trains and medical vehicles, and officials say it doesn't have enough foreign currency to import more. I accept that the applicant is uncertain about his living situation and source of employment, after living abroad since 2016, but he has family in Sri Lanka. The current economic climate affects all persons living in Sri Lanka.
147. The applicant claims that the current government are arresting all of the protestors who are protesting peacefully. They have recently created false news and they will arrest him on his return. As the applicant does not presently live in Sri Lanka and as he had not protested against the government whilst in Australia I do not accept that he will protest on his return to Sri Lanka. I am satisfied there is not a real chance the applicant will be arrested for protesting on his return to Sri Lanka within a reasonably foreseeable future.
148. The applicant has not been charged with any criminal offence and as I do not accept that he was attacked when at university for a [Social media] post, hospitalised or that the CID visited him or are searching for him, I do not accept that he will be unlawfully detained, tortured and probably killed by CID police on his return. I am satisfied there is not a real chance the applicant will be unlawfully detained, tortured or killed on his return to Sri Lanka within a reasonably foreseeable future.
149. As for the applicant’s name and picture being published on the internet in 2016 and being still publicly available, the photo produced to the Tribunal, from [News source 1] and claimed to have been published shows a male person lying on a bed. The person mentioned is not the same name as that of the applicant. I reject the representative’s claim that the applicant’s name remains on the internet.
150. The representative further opines that the applicant would be sought out for suspected activities in promotion of the resurgence of the LTTE upon return to Sri Lanka, especially as he is on record as someone who has financially supported LTTE families and participated in banned Heroes day memorial services. As I do not accept the applicant is a witness of truth and I do not accept that he was attacked and harmed for a [Social media] post or that he was involved in activities as a member of [Organisation], I do not accept that he was someone who has financially supported LTTE families and supported Heroes Day services, I find that there is not a real chance he will be seriously harmed for financially supporting LTTE families and participating in banned Heroes day memorial services, on his return to Sri Lanka, within a reasonably foreseeable future.
151. As I do not accept that the applicant is a witness of truth, I do not accept that he attended the heroes day at the [Venue] [Suburb 2] and the Mullivaikkal Remembrance day in [Suburb 2] where more than 300-400 people attended. The applicant was not a leader nor member of any organisation, he has not made any claims regarding any pro-Tamil, anti-Sri Lankan activities in Australia, he does not claim to have been filmed or publicly named attending an event in Australia, therefore I do not accept he would be perceived to have a significant role in relation to post-conflict Tamil separatism within the Diaspora or a renewal of hostilities within Sri Lanka. Therefore, I find that there is not a real chance that on his return to Sri Lanka during the identification checks at the airport he will be identified and perceived to have a significant role in relation to post-conflict Tamil separatism within the Diaspora and/or a renewal of hostilities within Sri Lanka, within a reasonably foreseeable future.
152. The independent evidence, cited above, indicates that the Sri Lankan government has concerns for those who are members of the LTTE in the diaspora or involved in political lobbying or fund raising for the LTTE. The applicant does not claim to a be a member of the LTTE in the diaspora or to have joined any LTTE organisations or any organisation, or been involved in fund raising for the LTTE, or has a social media presence or been involved in political lobbying for LTTE. I do not accept that he attended and participated in Pro Tamil activities that support the Tamil fight for self- determination. I find that there is not a real chance that the applicant will suffer serious harm within a reasonably foreseeable future, on return to Sri Lanka, for going to protests in Australia or for any activities in the diaspora.
153. Nor does the applicant claim that he has an extant court order or arrest warrant issued when he lived in Sri Lanka. Therefore the representative’s submission that the applicant is person whose name appears on a computerised ‘stop’ list or ‘watch’ list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant is mere speculation. As I do not accept that his name appears on a “stop” list or watch list, therefore I do not accept that he will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant, as none exists. As he left Sri Lanka legally with a passport in his own name I do not accept that he will be remanded on charges under the I&E Act.
154. The representative quoted a 2014 UK Home office report stating that the government is focusing on prevention of resurgence of LTTE and government continues to detail suspects and sympathisers and supporters. He provided a list of 2021 articles about Tamils who have been arrested on their return from Germany and Switzerland, other Tamils arrested in Sri Lanka for UTube posts and the Mayor of Jaffna and ors for Council uniforms being similar to the LTTE police force. Whilst I accept that the government continues to focus on prevention of resurgence of the LTTE and as DFAT states, 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. As the applicant did not have an adverse profile in Sri Lanka nor has he an adverse profile in Australia I do not accept that the applicant will be suspected as a sympathiser or supporter of LTTE as claimed.
155. I put to the applicant that there is no evidence that Sri Lankan authorities seek to harm failed asylum seekers. Low-profile former LTTE members have been able to return to Sri Lanka and DFAT is not aware of any returnees being subject to any monitoring or harassment by authorities. The applicant responded that when the police visited his home, if he had been there, they would have arrested him. When he was in Australia, he spoke with two friends who were arrested, who told him that the police questioned them about him and his friends have told them that he paid money with the help of his company that sent him to Australia. As the applicant is not a witness of truth I do not accept that police questioned his friends or his uncle about him or that his friends told the police anything. I am satisfied the applicant would be able to return to his home and even though the current situation is dire economically, the independent evidence does not suggest that Tamils are targeted during this economic crisis.
156. DFAT[15] assesses Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their security risk profile. DFAT assesses that following Tamils would be of particular interest to the authorities: those who hold leadership positions in Tamil diaspora groups, particularly groups deemed by the Sri Lankan Government to hold radical views; those who were formerly part of the LTTE, particularly in – but not necessarily limited to – high-profile roles; those who are suspected of raising funds for the LTTE during the war; and those who actively advocate for Tamil statehood. The applicant does not meet this profile. Therefore I am satisfied there is not a real chance the applicant will monitored on his return to Sri Lanka within a reasonably foreseeable future.
[15] 'DFAT Country Information Report - Sri Lanka', 23 December 2021
157. The available country information[16] indicates that Tamils from time to time may be subjected to discrimination, it does not suggest that they would face persecution based on their ethnicity alone. The independent evidence before me leads me to conclude that any persecution they may suffer is for having been involved with the LTTE and the applicant did not have any such involvement.
[16] 'DFAT Country Information Report - Sri Lanka', 23 December 2021
158. In regard to the independent evidence, submitted by the applicant, his adviser refers to a 5 May 2019, Tamil Net reported2 about two Tamil student leaders of Jaffna University. Police detained the two Tamil student leaders for having photos and banners associated with the Tamil struggle of the past. The applicant was not a Tamil student leader nor has been associated with Tamil struggle of the past. The applicant does not claim that he intends to return to university or become a student leader.
159. In relation to a 22 August 2022 report about three Sinhalese student leaders arrested and currently being held under the Prevention of Terrorism Act [PTA] I accept that over 100 Tamils are in detention under the PTA on charges of belonging to or helping the LTTE. The article is not relevant to the applicant , I do not accept that he has ever expressed his political views and beliefs publicly.
160. As for an ITJP report in July 2015 regarding interviews with forced returnees from UK who had been detained, tortured and/or sexually abused who stated they were questioned about their participation in antigovernment protests or war commemoration events abroad, DFAT[17] is not aware of returnees in 2021 being detained for matters other than illegal departure. The applicant did not depart illegally, he left with a valid passport legally.
[17] 'DFAT Country Information Report - Sri Lanka', 23 December 2021
161. For returnees travelling on temporary travel documents[18], police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.
[18] 'DFAT Country Information Report - Sri Lanka', 23 December 2021
162. As for the claim made by the applicant’s representative in a submission to the Tribunal that the applicant was “socially active” in both Sri-Lanka and Australia, and it is claimed that there is a real chance that he will be detained, interrogated during which he will be mistreated, killed or charged with an offence, including under the Prevention of Terrorism Act (PTA), should he return to Sri Lanka, as the applicant is not a witness of truth I do not accept that he was socially active in either Sri-Lanka or Australia and therefore I find there is not a real chance the applicant will be mistreated, killed or charged with an offence, including under the Prevention of Terrorism Act (PTA). The applicant has not come to the adverse attention of the Sri Lankan authorities, he has not been politically active in attending Pro Tamil events in Australia, I do not accept he will be viewed as a LTTE supporter or a security risk when he returns to Sri Lanka. I do not accept there is a real chance the applicant would suffer persecution involving serious harm due to his status as a failed Tamil asylum seeker should he return to Sri Lanka now or in the reasonably foreseeable future. I also do not accept that there is a record the CID hold on him from his previous arrest as I do not accept that the applicant was arrested or charged with any offence I do not accept the applicant will come to the adverse attention of the CID or TID, over and above that of another failed asylum seeker returning home.
163. I have read the UK Home Office report titled Country Policy and Information Note Sri Lanka: Tamil Separatism, issued June 2021. The report in the main deals with fear of persecution or serious harm due to the person’s actual or perceived support for, or involvement with, Tamil separatist groups. The applicant does not claim to have been involved with separatist groups. The report summarised the findings of the Upper Tribunal in KK and RS and Secretary of State for the Home Department. The report does not state that returnees without an adverse profile are at a real risk of ill-treatment or harm and require international protection.
164. Therefore, I do not accept that the applicant will be perceived by the Sri Lankan authorities to
§be an ex-LTTE member and/or a person associated or linked to LTTE members and LTTE activities and/or a supporter of the LTTE for his Tamil race.
§have a real and/or imputed political opinion of being opposed to the Sri Lankan Government.
§be an LTTE member due to his absence from Sri-Lanka,
§have an adverse profile for his political opinion against the Sri-Lankan regime whilst he lived in Sri-Lanka,
§have an imputed and/or actual political opinion to be against the Sri Lankan government for being a young Tamil male former university student who departed Sri Lanka legally and claimed asylum in a Western Country.

165. I also not accept that the authorities have visited his home for have any adverse profile or imputed adverse profile against the Sri Lankan government.
166. The applicant is [an Occupation], working as a [Job task 1], who left Sri Lanka legally, travelling to Australia as the holder of a tourist visa. He had attended university in Sri Lanka and obtained qualifications. He worked in Sri Lanka prior to his arrival in Australia. He has not been involved in Tamil diaspora activity. I have considered the applicant’s claims singularly and cumulatively. In light of the above findings, I am not satisfied that the applicant has a well-founded fear of serious harm for a refugee reason ie. for reasons of his race, religion, nationality membership of a particular social group or political opinion. I am satisfied that the chance of the applicant being seriously harmed for a refugee reason within a reasonably foreseeable future, on his return, is remote.
167. I am required to assess if the applicant, on his return to Sri Lanka, will suffer significant harm, as a Tamil Hindu, who left Sri Lanka legally with a passport issued in his own name.
168. I accept that many authorities in Sri Lanka remain the same as throughout the Civil War and still have a high level of control. I accept that military bases still exist. I also accept that many Sinhalese people have settled in the North and East and that Tamils believe they are not able to live freely. I accept that problems still exist for Tamils.
169. I do not accept that the applicant’s personal circumstances ie an ethnic Hindu Tamil who obtained tertiary education in Sri Lanka, who attended university and was employed as [an Occupation], working as a [Job task 1], who has not been involved in any LTTE activism in the diaspora or in Sri Lanka would be imputed to have an adverse profile on his return to Sri Lanka.
170. According to DFAT, low-profile LTTE members who come to the attention of the Sri Lankan authorities – particularly if they are suspected of having a combat role during the war – would likely be detained for questioning and may be sent for rehabilitation. Following their release, a low-profile former LTTE member may be monitored but would not generally be prosecuted. The number of high-profile former LTTE members living in Sri Lanka is assessed to be small and the majority have already come to the attention of authorities. I am satisfied the applicant does not have an adverse profile as an LTTE member or a supporter or of a person having a combat role during the war and I do not accept he will be imputed with an adverse profile or that and he will be subject to interrogation, mental or physical harm amounting to significant harm on his return to Sri Lanka within a reasonably foreseeable future.
171. I do not accept that the applicant suffered significant physical harassment by the Sri Lankan authorities in the form of repeated detentions and interrogations or significant physical ill-treatment, when he was beaten, tortured by the Sri Lankan security forces, as claimed by his representative’s submission. I do not accept that the applicant had an adverse profile in Sri Lanka. I do not accept that the applicant has acquired an adverse profile since living in Australia or as a failed asylum seeker.
172. I note that torture is very deeply ingrained in the security sector in Sri Lanka and evidently the use of torture has been and remains presently, endemic and routine for those arrested and detained on national security grounds. The applicant does not claim to have committed any offences whereby he would be arrested on national security grounds. Therefore, I do not accept that the applicant will be tortured, arrested or detained at the hands of the CID, TID, as well as other Sri Lankan military forces, due to his cumulative profile, as submitted by his representative.
173. According to DFAT most recent country information report, DFAT is not aware of returnees in 2021 being detained for matters other than illegal departure (such as, for former membership of the LTTE). The applicant left legally. However, due to COVID-19, returnees have been returned to Sri Lanka in smaller numbers overall than in previous years. According to the IOM, in 2021 up to September, there had been 107 returnees, 19 of these from Australia. Local sources also report that Tamils overseas are much less likely to return voluntarily to Sri Lanka under the current Government.
174. In the event that the applicant enters Sri Lanka as an undocumented arrival, I do not accept that questioning at the airport amounts to significant harm. There is no material before me to suggests the treatment of detainees at the airport through overcrowding or poor conditions is anything other than the result of insufficient resources. The applicant has been issued with a valid Sri Lankan passport. I do not accept that the applicant will be detained, imprisoned, tortured or killed on return.

175. Whilst I accept that prison conditions in Sri Lanka are generally poor and overcrowded, I do not accept that the applicant will be taken into custody where he might face conduct which could amount to torture, cruel or inhuman or degrading treatment or punishment.
176. The Department's Complementary Protection Guidelines state that there must be a real and personal risk to the individual, saying that where the threat is from non-state actors, decision-makers should be satisfied that there are 'extremely widespread conditions of violence, coupled with a particular risk to the individual in question' before reaching a conclusion that there is a real risk that an applicant will be arbitrarily deprived of his or her life. There is no evidence before me that there are widespread conditions of violence in Sri Lanka, and as I do not accept that the applicant will be perceived as an LTTE supporter, member, or activist, I do not accept that there is a real risk of the applicant suffering significant harm, from non-state actors or the Sri Lankan government, within a reasonably foreseeable future.
177. I do not accept that the applicant’s race, area of origin, and prolonged period of time abroad and claiming asylum in Australia suggests that there would be a real risk of being killed upon his return to Sri Lanka.
178. DFAT states that torture, where it occurs, is not confined to a particular geographic region or ethnic group but is a nationwide problem which affects all communities; however, it is more likely to affect poor and marginalised groups, such as members of criminal groups and LGBTI individuals. DFAT assesses that, while Sri Lankans face a low risk of torture overall, those detained face a moderate risk of torture, particularly if they are poor, associated with criminal elements, or are perceived to challenge the government. I have found that the applicant does not have an adverse profile in Sri Lanka and the applicant does not suggest that he has committed any crimes in Sri Lanka or that he is LGBTI or has been associated with criminal elements. I find remote the risk that he would be subjected to torture, within a reasonably foreseeable future, on his return.
179. The applicant does not claim that he has committed any criminal offence in Sri Lanka that would suggest the death penalty would be imposed on him.
180. 'Degrading treatment or punishment' is exhaustively defined to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable and the pain or suffering must be intentionally inflicted. The applicant has an uncompleted university [Subject] degree from Sri Lanka and qualifications as [an Occupation] in Sri Lanka. He has experience working in Australia in a [Work sector] company. I am not satisfied that difficulty in obtaining employment and accommodation in Sri Lanka amounts to cruel or inhuman or degrading punishment or treatment.
181. Having considered the applicant's circumstances singularly and on a cumulative basis, and for all the reasons set out above, I am not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk the applicant will be arbitrarily deprived of his life or suffer the death penalty, or subjected to torture, or to cruel or inhuman treatment or punishment or to degrading treatment or punishment.
182. According the find the applicant does not meet the requirements of s.36(2)(aa)
DECISION
183. The Tribunal affirms the decision not to grant the applicant a protection visa.
Lilly Mojsin
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.
…

[14]

[2023] AATA 2503

19 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction