1803255 (Refugee)

1803255 (Refugee) [2020] AATA 3833 (31 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1803255
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Louise Nicholls
DATE:31 July 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 July 2020 at 12:40pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Circuit Court remittal – race – Tamil ethnicity – religion – Hindu – political opinion – Tamil National Alliance (TNA) member and campaigner – low profile political supporter – refusal to support or join the Karuna group – association with the United National Party (UNP) – imputed pro LTTE opinion – particular social group – wealthy Tamil businessmen in the Eastern Province – targeted for harm and extortion – failed asylum seeker – illegal departure under the Immigrants and Emigrants Act – fear of people smugglers – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 19A, 19D
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Tribunals Amalgamation Act 2015 (Cth)
CASES
Alamdar v MIMA [2001] FCA 1244
Appellant S395/2002 v MIMA (2003) 216 CLR 473
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
Chen Shi Hai v MIMA (2000) 201 CLR 293
Lama v MIMA [1999] FCA 1620
Lama v MIMA [1999] FCA 918
MIAC v SZGUR (2011) 241 CLR 594
MZXRE v MIAC (2009) 176 FCR 552
SZDCD v MIBP [2019] FCA 326
SZDTM v MIAC [2008] FCA 1258
SZEPZ v MIMA (2006) 159 FCR 291
Yang v Carroll (1994) 852 F Supp 460
Zheng Jia Cai v MIMA (unreported, Federal Court of Australia)
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant claims to be a citizen of Sri Lanka and is [age] years old. He was born in [Town 1], Ampara District, Sri Lanka. [In] July 2012 he arrived on Christmas Island travelling by boat as an undocumented maritime arrival (UMA).
The applicant applied for a protection visa on 10 April 2013.
On 7 February 2014 a delegate of the Minister refused to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act) visa. The delegate was not satisfied the applicant met the requirements for that visa. The applicant sought review of the delegate’s decision.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Procedural history
The applicant arrived at Christmas Island [in] July 2012. He attended entry interviews with an officer of the Department on 26 August and 4 September 2012. He also attended an interview with the delegate on 11 October 2013.
The application for a protection visa was refused by the delegate on 7 February 2014.
The applicant sought review of the delegate’s decision by the Refugee Review Tribunal on 18 February 2014.
The applicant appeared before the Tribunal, differently constituted, on two occasions to give evidence and present arguments. The first hearing took place on 17 June 2015 and the second hearing took place on 11 November 2015. The Tribunal has transcripts of those hearings.
On 27 November 2015 the Administrative Appeals Tribunal (the Tribunal),[1] differently constituted, affirmed the delegate’s decision.
[1] On 1 July 2015 the Refugee Review Tribunal along with a number of other Commonwealth tribunals were amalgamated with the Administrative Appeals Tribunal (AAT). Any applications on foot with the former RRT at the date of amalgamation automatically became applications in the Migration and Refugee Division of the AAT.
The applicant appealed to the Federal Circuit Court and on 29 January 2018, by consent, the court quashed the Tribunal’s decision and remitted the application for review to the Tribunal for determination according to law.
The court noted that the Tribunal’s decision was affected by jurisdictional error in that the Tribunal did not consider a claim that the applicant would face harm when held at Negombo Prison while awaiting a magistrate to hear the charge of illegal departure under the Immigrants and Emigrants Act.
The matter is now before the Tribunal pursuant to s.19A(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
The applicant appeared before the Tribunal on 11 July 2019 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 by his registered migration agent.
The applicant gave further evidence in relation to his background, his claims for protection, his conduct in Australia and other relevant matters. The Tribunal considered the evidence at the hearing and has listened to the recording of the hearing.
The Tribunal has read the transcripts of the first two Tribunal hearings and has listened carefully to the evidence given at the hearing held in July 2019. The applicant has given evidence on a number of occasions as well as attending an entry interview and an interview with the delegate. The Tribunal is mindful of the difficulties experienced by persons asked to tell their stories several times and has not placed any weight on minor discrepancies, inconsistencies or omissions.
However, the Tribunal noted that the oral evidence given by the applicant contrasted greatly with his written statements. His oral evidence was at times confused, limited and lacked the detail and insight which had been provided in those written statements. During the hearings held on 17 June and 11 November 2015, the applicant’s evidence was somewhat confused and appeared to be unresponsive, however the Tribunal noted that the questions asked of the applicant were multifaceted and appeared to call for a level of analysis and understanding which the applicant did not appear to possess.
During the hearing held on the 11 November 2015, the applicant’s representative submitted that the applicant has difficulty in answering questions. She submitted he does not listen to questions asked, is not clear in his evidence and appears to evade questions. She stated this in the context of a claim that he may be perceived that way and thus face harm due to this false perception if he was questioned by authorities.
However, the Tribunal did not find the applicant to be evasive or reluctant to answer questions. While not voluble or fluent in his evidence, the Tribunal found him to be generally responsive and willing to answer questions. However, he was not able to provide the considered, detailed and comprehensive evidence contained in his written statements and summarised in submissions by his representatives. While the Tribunal accepts those statements were prepared on the instructions of the applicant, it considers they have been given a considerable “gloss” by his representatives, no doubt, on the basis that they were acting in his best interests.
The Tribunal explained the reasons for remittal and reconsideration and indicated that the evidence given to the Tribunal, differently constituted, could be considered in the review.
Material provided by the applicant
The applicant provided the following documents to the delegate:
·Copy of applicant’s Sri Lankan birth certificate (untranslated).
·Applicant’s Sri Lankan passport issued in 2004 with an expiry date of 2009.
·Applicant’s marriage certificate (Tamil language).
·Birth certificates for the applicant’s wife and son (Tamil language).
·Applicant’s Sri Lankan driver’s licence and National Identity Card.
·Statutory declaration made by the applicant on 25 March 2013.
·Pupil record sheet – [College 1] ([Town 1]).
·Two media reports (Tamil language).
·Letter (Tamil language).
·Receipt of arrest and English translation [dated in] December 2007.
·Letter from [Mr A] of Tamil National Alliance (TNA) [dated in] August 2012.
·Tamil language candidature material and series of photographs.
·Employment reference 19 September 2012.
·Young Men Hindu Association [Town 1] letter of reference 20 September 2012.
·Certificate on residence and character of the applicant issued by Grama Niladhari 6 January 2012.
·Ministry of Defence, Public Security, Law & Order – receipt of Arrest in Tamil [dated in] December 2012
·Photographs and Tamil media report.
The applicant provided several documents to the Tribunal, including:
·Submissions made by the applicant’s representative 15 June 2015.
·Letter from [Mr B] (Sri Lankan MP) 31 August 2013.
·Tamil language documents (untranslated).
·Post hearing submissions 26 and 27 November 2015.
·Further submissions 4 July 2019.
·Australian Smart Traveller report on Sri Lanka 13 June 2019.
·Post hearing submissions 25 July 2019, 13 February and 4 March 2020.
·Documents relating to the use of the applicant wife’s premises to campaign in the 2019 presidential elections and a letter from the local Hindu temple authorities dated 17 February 2020.
·Several media reports variously dealing with the Easter Sunday bombings and its aftermath, mistreatment of Tamils suspected of involvement with the LTTE, anti-terrorism legislation and other matters relating to conditions in Sri Lanka.
For the sake of clarity, the applicant’s representative provided a copy of the notification of the delegate’s decision together with his application for review but did not include a copy of the decision record itself.
CONSIDERATION
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complementary protection.
The relevant law is set out in Attachment A.
What information can be considered on remittal?
Where a direction is given to reconstitute the Tribunal, the AAT Act requires the reconstituted Tribunal to continue the proceeding.[2] In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted.[3] This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.
[2] S.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015).
[3] S.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015). See also SZEPZ v MIMIA (2006) 159 FCR 291 at [39] and MIAC v SZGUR (2011) 241 CLR 594 at [50].
In SZEPZ v MIMA (2006) 159 FCR 291, a Full Court of the Federal Court found that, where an RRT decision has been set aside by a court and the matter remitted for reconsideration owing to a jurisdictional error, it does not follow that all the steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the material that was obtained when the decision that had been set aside was made and is obliged to continue and complete the particular review and not to commence a new review.[4]
[4] MZXRE v MIAC (2009) 176 FCR 552 at [5] North and Rares JJ.
In conducting the review, the Tribunal has considered the material provided to the Tribunal and the oral evidence given at the previous hearings held by the Tribunal, differently constituted.
Background
The applicant claims he is a Sri Lankan Tamil and is now [age] years old. He claims to have been born in [Town 1], Ampara District, Eastern Province of Sri Lanka. He claims that he is a Sri Lankan citizen of Tamil ethnicity and comes from a Hindu family. His father has passed away and his mother is living in the town. He has one [sibling who] is married with [number of] children; she is living in another village in the Ampara District.
He is married with two children; one is [age] years old and the other is [age] years old. They are both attending school in the [Town 1] area. His wife and chilMr Fen are living with his wife’s parents. His wife’s uncle is living in [Country 1] and assists the family with financial support in Sri Lanka. The applicant is living in Sydney and works as a [Occupation 1]. His wife owns some property in Sri Lanka. He speaks regularly with his family using Skype.
The applicant worked as a [Occupation 2] before he arrived in Australia in 2012 and operated his own [business].
County of reference
The applicant claims he was born in [Town 1], Ampara, Sri Lanka. He provided several identity documents to support his claim that he is a citizen of Sri Lanka. He has consistently claimed he is of Sri Lankan nationality; he speaks Tamil and appears to be familiar with the culture and geography of Sri Lanka.
Taking into account the available evidence, and noting that nationality and identity are not in issue, the Tribunal is satisfied that the applicant is a citizen of Sri Lanka, which is the receiving country for the purpose of s.36(2)(aa) of the Act.
What are the applicant’s claims?
The applicant’s claims are set out in the applicant’s statutory declaration made by the applicant on 25 March 2013 as well as another statement made on 4 July 2019.The claims were discussed with the delegate at an interview held on 11 October 2013.
The applicant’s claims were expanded in written submissions made by the applicant’s representative on 11 June 2015.
The applicant gave evidence about his claims at Tribunal hearings held on 17 June 2015, 11 November 2015 and 11 July 2019.
The applicant’s claims were summarised and further discussed in submissions made on 4 July 2019 and in post hearing submissions made on 25 July 2019, 13 February and 4 March 2020.
Essentially, the applicant claims that he is an ethnic Tamil and a Hindu. He was born and grew up in [Town 1], Ampara District, in the Eastern Province. The area in which he was living was a government-controlled area, but it was close to an area controlled by the Liberation Tigers of Tamil Eelam (LTTE). When he was young, he and his family were harassed by the Sri Lankan Army during periods of Army/LTTE conflict.
The applicant joined the Tamil National Alliance (TNA) in 2001 and was also a member of the Hindu Youth Association. The Karuna group[5] were active in his area and they tried to pressure him to support the group. Because of his refusal to support or join them, he was mistreated in 2007, 2009 and 2010. He claimed he was threatened by a leader of the Karuna group in 2010. He moved to Colombo to avoid further mistreatment in 2011. A relative of the applicant’s wife was killed in 2011 and the applicant feared it was a revenge attack for opposing the leader of the Karuna group in Ampara. After he arrived in Australia, he claimed he was threatened with serious harm by the district leader of the Karuna group in Ampara.
[5] Colonel Karuna (Muralitharan) was a commander of the LTTE but joined the Sri Lankan Freedom Party after the war ended and was made Minister for National Integration. He went on to form his own political party in 2017.
The applicant claims that if he returns to Sri Lanka, he faces harm due to his Tamil ethnicity, his membership and involvement with the TNA, his opposition to the Karuna group and the Sri Lankan government. He also made a recent claim to fear harm because his wife’s shop was used to campaign for the opposition UNP candidate for the 2019 presidential election.
He also claims to fear harm as a returned failed asylum seeker and as a person who left Sri Lanka illegally. He also claimed that he was mistreated on the boat which brought him to Australia and gave information about crew members on the people smuggling vessel on which he came to Australia. He fears he might be harmed by people smugglers and possibly Sri Lankan authorities who might wish to question him about people smuggling activities.
In the statutory declaration made on 25 March 2013, the applicant stated that during the civil war he was living in a government-controlled area, however the area controlled by the LTTE was about [travelling time] away by vehicle. Quite often the LTTE and the Sri Lanka Army would fight in his area, and in 1990 when he was very young he was displaced to another part of Sri Lanka due to the fighting.
From 1990 to 2004, there were many problems with the army and they were often questioned, asked to show their ID cards and rounded up with people being asked to identify them. The army often accused them of being in the LTTE.
He claimed he was taken numerous times to the local Special Task Force[6] (STF) camp for questioning and was mistreated. Masked persons came to identify the detainees and if they pointed at someone, they would be assaulted. There were a few incidents when he was identified. In one incident in 2002, he was kept in the camp for more than 2 weeks. After that, he had to the report to the camp every month until 2004.
[6] The STF heads counter-terrorism missions and – as the most highly trained police organisation in Sri Lanka – it would be the lead unit whenever law enforcement forces engaged the Tamil Tigers (LTTE). “Country Reports on Human Rights Practices, Sri Lanka”. U.S. State Department. 28 February 2005.
The applicant joined the TNA in 2001 as his [Relative C] was a candidate for the TNA in the [District 1] elections in 2001 and 2004 and the applicant wanted to get involved. He was engaged in putting posters up, doorknocking and promoting involvement. He claimed he was monitored by the CID[7] while he was involved in this work.
[7] Investigative arm of the Sri Lankan Police Force.
He claimed that the members of the Sri Lankan Freedom Party (SLFP) took videos and photographs of the TNA campaign. At that time, the TNA members were afraid of the SLFP because some TNA members had been killed by unidentified persons. He claimed that he had been threatened several times by unidentified persons he assumed were members of the SLFP.
He was involved in the Hindu Youth Association and was [Position 1] from 2000–2003. He had no problems during this period.
After the Karuna group split in 2004 they opened an office very close to the applicant’s shop. Police were also located nearby but would not respond to complaints against the Karuna group.
While he was working in the [Occupation 2] business, he would be asked to attend meetings and to generally support the Karuna group. He was under pressure to attend local commercial meetings organised by the Karuna group and they would demand money from business traders.
[In] December 2007 a member of the Karuna group was shot by an unknown person about 50 metres from the applicant’s shop. The applicant claimed he was suspected of being the shooter. On that day, the STF arrested him, assaulted him and then handed him over to the police. The police detained him for a few hours until two of his friends came and had him released. Nothing further came of this incident.
In 2008, [Mr D][8] sent someone to his office who demanded he pay [amount] lakhs ([amount] rupees). He refused and was threatened with serious mistreatment. His [Relative C] came to check on him and threatened to alert the media if he was not released; this resulted in his release that day.
[8] The local organiser of the Karuna group.
In about 2009, he told members of the Karuna group that he could not attend party meetings because he supported the TNA. [Mr D] was in charge of the office at that time. The applicant was pressured to attend the meeting. After he arrived and told them he was a TNA supporter, they tied him up and assaulted him for about 10 minutes. They told him that if he was asked to attend a meeting, he would have to attend.

In 2009, he worked for [Mr A], an unsuccessful TNA candidate in [District 1].
A similar incident occurred in 2010 and this time it was because the Karuna supporters wanted him to support their party for a provincial election. He refused and was assaulted again.
In late 2010, he was threatened by a prominent member of the Karuna group in Ampara, that is, [Mr E]. He threatened the applicant that if he did not work for Karuna, he would be shot. His family members advised him to leave the area so he wound up his business and he hid in different houses. In February 2011, he hid in the home of his nephew in Colombo.
While in Colombo, his wife’s “cousin-brother” was attacked with machetes and killed. His companion was also attacked. The applicant’s wife told him about the attack and the applicant concluded that the attack was a revenge attack organised by [Mr E]. He claimed that this was consistent with the manner of Karuna group/paramilitary attacks. He claimed that the attack was a message to either meet their demands, be killed or leave Sri Lanka.
A friend of the applicant used to visit Colombo for business. The applicant told him about his situation, and he organised his travel out of Sri Lanka.
The applicant left Sri Lanka by boat [in] June 2012. After he left, [Mr E] stood for the provincial elections in 2012. The applicant called his TNA colleagues and stated he did not think he would win the elections. The applicant’s comments were conveyed to [Mr E], and after he won the election he went to the applicant’s wife’s home and stated that if the applicant returned to Sri Lanka he would be killed.
The applicant claims he cannot return to Sri Lanka because he is at risk due to his Tamil ethnicity and his political opinion as a TNA member and campaigner and for his lack of support of the Karuna group.
The applicant does not support the Sri Lankan government and the way that it persecutes Tamils. He stated he did not have the freedom to express his political opinions and beliefs and cannot seek the protection of authorities because the Sri Lankan government and authorities are persecuting Tamils. He stated his area was under the control of the Karuna group and Karuna targets anyone who does not agree with him.
He will also be at risk because he sought asylum in Australia and authorities will want to know why he came to Australia. Sri Lankan authorities suspect people who oppose them or support the LTTE are leaving Sri Lanka to seek protection in Australia.
He is also fearful of going back because he came to Australia by boat and the crew on the boat physically mistreated him. He provided information to Australian authorities about this and fears that if these people are charged or detained by authorities in Australia and if he returns to Sri Lanka the people smugglers would target him to find out who gave the information to Australian authorities.
The Sri Lankan authorities may also want information about people smuggling. He fears being detained and questioned by Sri Lankan authorities and tortured and mistreated by the authorities to obtain information about people smugglers and other people on the boat.
On 7 February 2014 the delegate refused the application for protection.
The applicant sought review of the refusal decision on 18 February 2014. He attended a hearing on 17 June 2015. Prior to that hearing, his representative provided written submissions on matters of fact and law.
In submissions made on 11 June 2015, his representative noted that he relied on the statutory declaration submitted with his application, as corrected orally in his interview with the delegate on 11 October 2013. The Tribunal notes that at the interview the applicant told the delegate that all the incidents that happened to him in 2008 took place in the context of the provincial elections. He stated in 2010 he was forced to work in the parliamentary election and presidential elections in 2010 (and not the provincial elections as claimed).
The submissions also noted that the applicant did not raise any new or varied claims but sought to provide further information and clarification in support of his existing claims.
The representative submitted the applicant would face a real chance of serious harm for reasons of:
·His Tamil ethnicity;
·His imputed political opinion in support of the Liberation Tigers of Tamil Eelam (LTTE) on account of:
·His Tamil ethnicity; and
·His origins as from Ampara District, Eastern Province; and
·His political involvement with the TNA; and
·His illegal departure from Sri Lanka; and
·His extended presence in Australia as an asylum seeker;
·His membership of the particular social group of ‘Young Tamil males from Eastern Province’;
·His membership of the particular social group of ‘Wealthy Tamil businessmen in the Eastern Province’;
·His membership of the particular social group of ‘Tamil returned failed asylum seekers’.
It was further submitted that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Sri Lanka, there is a real risk that he would suffer significant harm, as defined in s.36(2A), for the purposes of s.36(2)(aa). There is a real risk of the following forms of significant harm in the form of torture; and cruel and inhuman and degrading treatment or punishment.
The representative referred to some of the findings made by the delegate and responded by way of submissions as follows:
·She noted the delegate did not accept that the applicant was threatened in his shop by the Karuna leader [Mr E] in 2010. It was submitted that the applicant satisfactorily explained that, for the 8 months prior to his departure, he took precautions for his safety and that his departure was delayed due to his family and business commitments.
·The delegate did not accept that the applicant was unemployed in Colombo. It was submitted that the applicant and his family were supported by wealthy relatives and he did not need to work during his time in Colombo.
·The delegate did not accept that the applicant was threatened and tortured to force him to give financial assistance to the Karuna group because he did not mention torture in his statutory declaration, which had been prepared with the assistance of his representative. It was submitted that the applicant was nervous in the interview and he forgot to mention all the details associated with this incident.
·The delegate also did not accept this claim because the applicant remained in his village for 8 months after the threats took place. The applicant explained that he was not initially afraid but became afraid during election times, particularly the 2010 election when [Mr E] threatened his life. As a result of his active support for the TNA, he became a target for the Karuna group, and it was for this reason that he chose to hide himself in Colombo.
·The delegate rejected the applicant’s claim that he would be perceived as a supporter of the LTIE by reason of his involvement and support of the TNA because he was not a member of any party that constitutes the TNA, and he only assisted during election times and was not otherwise politically involved.
·The applicant stated the TNA were once associated politically with the LTTE and that the Sri Lankan authorities remain suspicious of TNA members as a result of this past association. Further, the Karuna group, being a paramilitary group, which split from the LTTE and aligned itself with the Sri Lankan government, targeted TNA supporters.
·With respect to the finding that the applicant was not a member of the TNA, the applicant submitted he has consistently stated his involvement with the TNA since 2001, for some 11 years. He doorknocked during electoral campaigns, organised meetings, decorated halls where party meetings are held and put up posters. He was known as a supporter of TNA, as well as the nephew of a TNA member, [Mr F]. It was submitted the Karuna group are concerned only with the applicant’s political opinions and activities, not his official or unofficial status within the TNA.
·The delegate found the applicant to be unreliable based on the inconsistencies in his evidence relating to telephone calls he received in Colombo. He stated that although he normally only answered calls from a telephone number with which he was familiar, he would occasionally answer calls from unknown numbers, and he took these calls to be threatening.
It was submitted the applicant is a Tamil man originating from the Eastern Province who supports the TNA. It was submitted the applicant’s account of his interactions with the Karuna group in 2008 and 2010 should be accepted, and that they establish that the Karuna group, acting with impunity, targeted the applicant as a wealthy Tamil and supporter of the political opposition, the TNA. Combined with his illegal exit from Sri Lanka and his extended stay in Australia, there is a real chance that the applicant would face serious harm if he returns to Sri Lanka because of his support for the TNA and, by implication, his perceived support for the LTTE.
The applicant’s representative submitted that if the applicant is unsuccessful in his application for asylum in Australia, he will be forcibly removed to Sri Lanka and consequently he will face harm from the Sri Lankan authorities on account of his illegal departure from the country and/or application for asylum. It is submitted there is evidence that failed asylum seekers from Australia are imputed with pro-LTTE political opinions and that returnees from Australia (and other countries) have been subject to torture upon their repatriation.
It is submitted that there is a large Tamil diaspora in Australia, and this gives rise to the perception that Australia has become a hub for Tamils to present their views in support of the idea and beliefs of the LTTE. Further, there is a social stigma attached to asylum seekers who travelled by boat, and on return they come to the immediate attention of the Sri Lankan authorities and are more likely to have an anti-Sri Lankan government political opinion imputed to them purely on account of their illegal departure from Sri Lanka and their method of arrival to Australia.
It is further submitted that the applicant departed Sri Lanka illegally and it is probable he would be punished under Sri Lanka’s Immigration and Emigration Act (1948) as a result of his illegal departure from Sri Lanka. The punishment may involve a period of detention, a fine, and possibly the imposition of a custodial sentence. In relation to punishment for illegal departure, the representative referred to the October 2014 DFAT Country Information Report which confirmed that the Sri Lankan authorities keep a watch for returnees who have a court order or arrest warrant issued against them or those returnees that been involved in terrorist activities. This demonstrates that returnees are scrutinised.
The representative also made submissions on whether the punishment would amount to persecution within the meaning of s.36(2)(a); or significant harm within the meaning of s.36(2)(aa).
In correspondence dated 15 June 2015, the applicant’s representative referred to a copy of a land title document and a letter from an insurance company which verified that the applicant owned property.
At the hearing held on 17 June 2015, the applicant provided a copy of an Australian “Immicard”[9] and a letter. The letter’s author was said to be [Mr B], a Member of Parliament from [Location 1]. The applicant also provided four other documents which were untranslated. One document appeared to be from an insurance company and the other from the Registrar of Lands [Town 1]. The other two documents appeared to be extracted newspaper reports.
[9] Identity card provided by the Department.
Reconstitution 2015
The matter was reconstituted after the Presiding Member became unavailable in June 2015 and the reconstituted Tribunal, differently constituted, held a further hearing on 11 November 2015. The Tribunal has read the transcripts of both Tribunal hearings.
The applicant gave evidence to the Tribunal on 17 June 2015. At that hearing, the Tribunal gave a short explanation of the criteria for a protection visa and the purpose of the Tribunal hearing.
The applicant stated that he had been assisted in applying for protection by his representative at the time and was confident that the contents of the application were true and correct and the application and supporting document had been read back to him. The applicant stated he later gave a more detailed explanation of some of the matters in his application when he instructed his representative.
With respect to documents provided at the Tribunal hearing, there was a letter in English and other Tamil language documents. The Tribunal member indicated that if the applicant wished to rely on the Tamil language documents, he should have them translated and provided to the Tribunal.
With respect to the English language letter dated 31 August 2013 authored by a Member of Parliament (MP), the applicant advised that he had asked his family to send the letter to him, but they had delayed sending it because they were busy sending children to school and working. After the applicant’s protection visa application had been rejected, his family members had approached the MP and he gave them the letter. The Tribunal questioned why it took his family so long to provide him with the letter when it was written on 31 August 2013. He stated they delayed sending it to him because of their commitments looking after children and difficulties in getting it to the post office.
The Tribunal noted that the letter stated the applicant was a member of the Tamil National Alliance (TNA). He stated he worked for the group in his town and went along with his [Relative C] in other areas. The Tribunal also noted the letter did not appear to be the type of letter an MP would write. The applicant suggested that the MP’s personal assistant drafted the letter.
The Tribunal noted the applicant’s representative had prepared lengthy submissions and the applicant stated that he had confirmed his story with his representative as a part of the process of preparing those submissions.
The applicant confirmed his personal details and the fact that he was a Hindu of Tamil ethnicity. He obtained a passport in 2004 for the purpose of travelling overseas as he was planning to join his wife’s uncle in [Country 1] but was not able to do so at that time. He confirmed he had no problems obtaining a passport which he collected when he travelled to Colombo.
He agreed that he travelled from his home in the east to Colombo from time to time, possibly 2 to 3 times a year, to assist his father who was being treated for cancer. He stayed for a day or two each visit. The applicant confirmed his wife and children are still living in Sri Lanka and are worried about him.
He stated that during the election campaigns in 2012, he telephoned friends in Sri Lanka and told them he did not think [Mr E] would win the election. He did not win, and after that [Mr E] went to the applicant’s home and told his wife that if the applicant returned to Sri Lankan he would be killed.
The applicant has two children, [Child 1] attends [school] and [Child 2] has just turned [age] years old. He agreed that [Child 2] was conceived shortly before he left Sri Lanka while he was staying at the family home. His siblings are living in Sri Lanka and have had no problems because they do not involve themselves in any activities.
The applicant stated he owned his own home in the village and had approval to build a few other houses on his land. He also has some savings and estimated his net worth as about AUD50,000.
The applicant claimed he was afraid to return to Sri Lanka because he had problems with a paramilitary group following his [Relative C]’s involvement in an election. If he returns and becomes involved in similar activities, his life may be threatened and he may be shot.
The applicant became involved in politics because he is a Tamil patriot and hopes there is a political solution to the problems faced by Tamils in Sri Lanka. He believes that Tamils should have greater political power but did not believe in dividing the country.
He stated his [Relative C] participated in elections from 2001 and the applicant has been interested since that time. His [Relative C] was involved in the national parliamentary elections and ran as a candidate for the TNA. Originally the TNA did not exist, and he and his [Relative C] followed the Tamil Freedom Alliance.
The Tribunal questioned the applicant about the inception of the TNA and its various alliances and associated groups. The applicant appeared to have an incomplete knowledge of the names of groups, when the groups came together and reformed. His evidence on these matters was somewhat confused. The applicant stated that his [Relative C] stood for the Tamil Eelam Liberation Organisation (TELO)[10] in 2001. He explained that even though there were different Tamil parties, they contested the election under one single name, and they were all together.
[10] TELO was an activist Tamil separatist group but now operates as a political party and is part of the Tamil National Alliance (TNA).
The applicant was asked to explain the issues which were raised during the election campaign and he stated that he was involved in a door-to-door campaign, getting votes, sticking up posters and arranging stages for the meetings. He stated in 2001, the LTTE supported the TELO but the applicant did not know much about the relationship between the two groups.
When asked about the policy objectives, he stated that the aim of the TNA is that Tamils should live in freedom, combining the north and east, having police power, land power and protecting religion and cultural aspects. They also are seeking that the military depart the north and east.
He stated the TNA wanted some level of autonomy within the Sri Lankan state. The Tribunal put it to the applicant that the TNA originally supported self-determination in a Tamil state but dropped the demand for an independent state in 2010 and was ready to accept regional self‑rule. The Tribunal put it to the applicant that despite being involved in the TNA for 9 years from 2001, he did not appear to know that until the TNA changed its policies in 2010, one of its central goals was an independent state.
The applicant claimed that he been involved in many elections including small elections as well as national elections, but he did not remember the years and the vote counts. He recalled there were elections in 2001, 2004 and 2010. He was not involved in the 2011 local council elections as he was in Colombo at that time. The applicant did not know who won against his [Relative C] in the 2001 election. In 2004, a local candidate won the election but became ill and [Mr A] replaced him.
The applicant gave evidence that he helped in campaigning during elections and was temporarily in charge of his area during elections but was not involved in any role for the TNA between elections.
The applicant agreed that the TNA has a high level of support from the Tamil community in the north and east and won recent provincial elections, but he stated the central government is dominated by the Sinhalese. He stated he would still support the TNA if he returned to Sri Lanka because they support the Tamil community. He claimed he would be at risk if he returned because he could gain many votes in his local area due to his profile.
The applicant gave evidence at a further hearing on 11 November 2015 after the review had been reconstituted, with a different Member.

100. The applicant gave evidence about his personal details including his age and family in Sri Lanka. The applicant confirmed that he and his family came from the district of Ampara. He confirmed that Ampara was located near Batticaloa. He confirmed that all family members lived in the same area. He stated he contacts his family every day, mostly on Skype. When they speak on the phone, they talk about things happening in Sri Lanka and the fact that there are still armed groups functioning in some places.

101. The Tribunal asked him about his claims regarding his Tamil ethnicity and the history of his contact with Sri Lankan authorities before he left Sri Lanka. The applicant claims he feared harm from armed groups.
102. Before he came to Australia, he supported his [Relative C] who was a parliamentarian for the TNA. He said he also worked for the party and for his [Relative C] and during election time. The Tribunal confirmed with the applicant that he principally worked for the TNA during election periods. The Tribunal also confirmed with the applicant that he believed that in 2001 he was monitored and followed during election periods, and members of the Sri Lankan People’s Freedom Party would take videos of TNA workers during elections.
103. The Tribunal put it to the applicant, and he agreed that many people worked for the TNA during election periods without problem. The Tribunal also put it to him that he had no problems up until 2004; the applicant stated that videos were taken of him during election periods.
104. The Tribunal asked the applicant about his claim that he had no freedom to express his political opinion. It put it to him that he had engaged in substantial political activities before his departure from Sri Lanka. The applicant stated he came to Australia for a visa and had problems with the armed groups. He stated that he was well-known in his community because he was helping Hindus. He was well-known as a campaigner for the TNA and he was also the [Position 1] of the Hindu Youth Association.
105. The Tribunal asked him about his claim that in 2010 during the provincial council elections in 2010, [Mr E] had personally threatened him at his shop. The applicant stated that he had been threatened by the Karuna group, in particular a person called [Mr E]. He claimed the Karuna group were rivals of the TNA and that is why he was threatened. He stated that he was threatened because he was influential and could influence people’s voting intentions by getting 3,000–4,000 votes. He claimed that he had this influence because he was a businessman and worked for the Hindu Youth Association.
106. The applicant stated that he had been a member and [Position 1] of the Hindu Youth Association from about 2000 to 2003. In 2003, he stopped being a member and focused on other things. The Tribunal put it to him that he had not made a claim that he would fear persecution solely because he was a Hindu. The applicant stated that there were problems because of his Hindu religion because Sri Lanka is a Buddhist country. However, when questioned further, he agreed that being a Hindu was not so much of a problem.
107. The Tribunal questioned the applicant about his interaction with the Karuna group from 2004 when the group started supporting the Sri Lankan government. He confirmed the applicant’s claims that the applicant was forced on occasion to attend the commercial association of the Karuna group and that he and other businessmen were asked to provide money. He stated that once in 2008, they came and wanted money and he was mistreated because he did not give them any money. He referred to an incident in 2008 which he called the [Mr D] incident. Apart from this incident, he stated they called them for meetings and asked for money. Every Monday, they would ask for 5,000 rupees from him and other business people. He claimed they asked for a bigger sum of money, but he did not give them that money. The applicant stated he was asked for money every month.
108. The Tribunal put it to the applicant that he had claimed that wealthy businessman from the Eastern Province were targeted for harm and extortion. The Tribunal stated the country information did not support that claim. The applicant did not refer to any information to support this claim.
109. The Tribunal member noted that the applicant had claimed in 2007 that he had been detained on suspicion of being involved in the shooting of a person near his shop. He was detained for seven hours and then released. He was not charged or convicted of any offence. After he was released, he did not see a doctor but got some medication for pain relief and returned home.
110. The Tribunal put it to the applicant that he claimed he had problems in 2009 and 2010. In 2009 he claimed he was assaulted for 10 minutes because he was asked for money, and in 2010 he had problems because he was asked by Karuna group supporters to support their campaign. He moved to Colombo in 2011.
111. He told the Tribunal that in 2010 he was planning to go to [Country 1] but did not have the means to go. He was planning to obtain a visa for [Country 1] and be sponsored by his uncle. He did not go to [Country 1] because a relative of his uncle’s did not get the visa to him in time.
112. He claimed he was threatened by the Karuna group in 2010 but could not remember the month. He waited for another year and travelled to Colombo in 2011. He also stated his father was not well at this time.
113. The Tribunal confirmed with him that his claim was that after he was threatened by [Mr E] and other members of the Karuna group, he knew he wanted to leave but remained in his home area for about a year, even though on occasion he would travel to and from Colombo. After this, he lived in Colombo for another year. He lived in Colombo on and off for a bit over 2 years. There was some discussion about the length of time that he lived in his hometown, where he stayed in his town, and how long he had lived in Colombo.
114. He claimed he closed his shop in February 2011 just before he travelled to Colombo but that his mother still lives in the premises in which the shop was located. The Tribunal put it to him that he could live safely in Colombo and it would be reasonable to live there, and he stated in response that you could live in Colombo for a short time but not for a long time. He claimed it was not safe to live in Columbo.
115. The Tribunal put to him that he lived in Columbo for about 1½ years without problems and during that time he returned to his home village on occasion to visit. The Tribunal put it to him that he could live safely in Colombo if he returned. The applicant stated that the armed groups are still operating and engaging in criminal conduct. The Tribunal put it to him that people who are part of the armed groups are now starting to be Members of Parliament.
116. The applicant stated that he had lived in Colombo but no one knew he was there, however the Tribunal pointed out that he had returned home to see his parents regularly during that period of time and had not claimed to have taken steps to hide or protect himself when visiting his parents. He stated only his cousin knew he was in Colombo.
117. Up until the end of 2011 he was returning to his home village, but between January and June 2012 he claimed he was not returning to his home village.
118. He claims that the main group he feared was the Karuna group and a number of other paramilitary groups, but the Tribunal pointed out that he only claimed he had problems with the Karuna group.
119. The Tribunal referred to his claim that a relative was killed in his home area in December 2011 and the applicant believed they were looking for him. The applicant reiterated his greatest fear was from the Karuna group.
120. The Tribunal asked him about his claim that he had received threatening telephone calls in Colombo and asked why he had not changed his SIM card. He stated he did not want to change the card because he must have this number. The applicant appeared unable to estimate the number of threatening telephone calls that he received.
121. The Tribunal put it to him that the country information indicated that there was no longer a real chance of persecution for reason of being a Tamil, a Tamil male or Tamils from the east of Sri Lanka. He noted that former LTTE members have been detained and released from detention and now generally live in the community. The applicant reiterated that he feared the armed groups.
122. The Tribunal discussed his claim that after he came to Australia in 2012, there were provincial elections in Sri Lanka. He claimed that he telephoned one of his colleagues and told him that he did not think [Mr E] would win. [Mr E] was made aware of his comment, and he and his police escort then travelled to his parents’ home and threatened them and told them that if he returned he would be killed. The Tribunal put it to him that it appeared to be highly unlikely that [Mr E] would personally attend his home merely because he heard he had made this comment over the telephone.
123. The Tribunal discussed his claim that he had identified some people on the boat which travelled to Australia and police asked him to identify the pictures. Nothing further happened after that. The applicant stated that the crew was Sinhalese. He confirmed that he does not belong to any political associations in Australia and that he just went to work and travelled.
124. He confirmed that he departed Sri Lanka illegally and the Tribunal put it to him that on his return he may be charged for having departed Sri Lanka illegally and may be held and investigated for up to 24 hours before being released on bail. I understand no money is required for bail and such persons can be subsequently defined by the courts, but such funds can be paid by instalments.
125. The Tribunal discussed the claim that persons who fled Sri Lanka and travelled to Western countries may be harmed on their return to Sri Lanka. The Tribunal put to him country information that thousands of asylum seekers have been returned to Sri Lanka since the end of the war and he did not have the profile which would cause him to be harmed. The applicant mentioned that some people had been harmed and he referred to some media reports which discussed the arrest and detention of certain persons. He also noted that despite the change in government, there was some level of impunity for certain people. He also claimed that the armed groups are still operating despite the change in government.
126. The applicant’s representative made a number of oral submissions at the end of the hearing. There was some discussion about the documents the applicant provided at the Tribunal hearing, in particular a letter from an MP which referred to the risks faced by Tamils returning to Sri Lanka. The representative submitted that the 2007 arrest receipt is important because he will be checked if he returns to Sri Lanka and subject to scrutiny.
127. She submitted that the country information on returnees refers to people in general. She submitted that the applicant has a profile as a relative of a TNA parliamentarian, and has had problems with the Sri Lanka Army and members of the Karuna group in his local area. Further, he is in an area where Tamils are a minority, he has departed illegally and has sought protection in Australia which is a country with a significant Tamil diaspora. She submitted that he may be held for a longer period than usual and may suffer some harm as a result.
128. The representative also submitted that the applicant had difficulties in giving a coherent account of his circumstances or to answer questions responsively. This might put him at risk if investigated by authorities.
129. The Tribunal noted the applicant had not been convicted of any offence, that the arrest took place in 2007 and that arrests were common at that time. The applicant’s representative suggested the applicant could possibly become involved in politics if he returned to Sri Lanka despite not being involved in any organisations in Australia.
130. There was lengthy discussion regarding the contents of a letter from the MP which stated the applicant was at risk if he returned. The representative referred to public comments made by the MP as well as referring to the 15 persons who had been detained when they returned. The representative claimed the MP had publicly mentioned the detention of these persons. The Tribunal asked the applicant to provide further information about this issue and the representative agreed to that course.
131. Following the hearing, the Tribunal received submissions from the applicant’s representative on matters arising in the Tribunal hearing. She noted that the Tribunal had some credibility concerns. She submitted that the letter from the MP should be considered as probative evidence in support of the applicant’s claims and also referred to comments made by that MP and reported in the Tamil Guardian publication, that is, ‘There is no freedom for Tamils in Sri Lanka’ says TNA MP, 28 April 2015, and ‘Not safe for Tamil diaspora to return to Sri Lanka says TNA MP’.
132. She submitted that if the applicant is returned to Sri Lanka, the applicant should not be required to suppress his political opinion and his views of Sri Lankan authorities, members of the paramilitary, the situation of Tamils and the reasons he left Sri Lanka during the process of interrogation at the airport or in Sri Lanka in general when dealing with authorities in order to avoid persecution. She also submitted that the DFAT country information referred to by the Tribunal provides general information about failed asylum seekers and does not address the applicant’s particular profile.
133. Submissions were made that there was a real chance that the applicant would face serious harm if he returned to Sri Lanka now or in the foreseeable future.
Further evidence and submissions made after the application was remitted for reconsideration
134. The application for review was remitted by consent on the basis that the decision of the Tribunal was affected by jurisdictional error in that the Tribunal failed to consider a claim made by the applicant, namely that the applicant would face harm when held at Negombo Prison while awaiting a magistrate to hear the charge for illegal departure under the Immigrants and Emigrants Act.
135. The Tribunal invited the applicant to attend a further Tribunal hearing on 11 July 2019. The hearing was recorded, and the Tribunal has recently listened to that recording.
136. Prior to the hearing, the applicant engaged a new representative who provided further submissions and a current statement dated 4 July 2019 made by the applicant regarding his claims for protection.
137. Essentially, the further submissions repeated the previous submissions. In particular, he submitted that the applicant fears if he returns to Sri Lanka he would face persecution for reasons of his Tamil ethnicity, his imputed political opinion in support of the LTTE due to his former residence in Ampara in eastern Sri Lanka, his involvement in the TNA, his defiance of the Karuna group, the threats made against him by [Mr E] and conveyed to his wife, his illegal departure from Sri Lanka and his extended absence from Sri Lanka.
138. He submits that following the Easter Sunday attacks in 2019 that there is a heightened level of instability and that the declaration of the state of emergency would result in a greater risk of harassment, arrest, torture or risk to his life. He submitted that if the applicant returned, he would be arrested for his illegal departure, obtained under the emergency regulations, and tortured for information on the reasons for his illegal departure and his extended absence. He claims the government cannot protect him and points to their inability to protect people from the Easter Sunday attacks.
139. The applicant provided a statement dated 4 July 2019 in which he repeats the claims and evidence made in his earlier statement.
140. At the Tribunal hearing held on 11 July 2019, the applicant gave further evidence regarding his claims.
141. The applicant gave evidence that he was born in [Town 1] District, Ampara, and that he and his family lived in the town. His mother, brother and married sister live in Ampara. His brother is a [Occupation 3], his sister is married and has [number] children and her husband has a [specified] business.
142. He is married and his wife and two children are living with his wife’s parents in Ampara. His wife is not working, and her uncle lives and works in [Country 1] and he is helping support the family.
143. The applicant lives in a share house in Sydney and works as a [Occupation 1]. The applicant stated his wife owned real property in Sri Lanka, that is, a house and a shop. One is in [Town 1] and the other in [Town 2]. He speaks to his family in Sri Lanka regularly by Skype and telephone. He has many other family members living in Sri Lanka and overseas.
144. The applicant stated that he could not remember if the last Tribunal decision was explained to him. The Tribunal outlined the matters considered in the earlier decision. It noted that the Tribunal considered his early life, his work for the Hindu Youth Association, the period between 2004–2007, the incident which took place in 2008, and incidents in 2009 and 2010. It considered his Tamil ethnicity, his situation as a failed asylum seeker, and looked at whether he could safely and reasonably live in Colombo and what would happen to him if he were charged with an offence under the Immigrants and Emigrants Act on his return.
145. The Tribunal explained that the application for review was sent back to the Tribunal because the previous Tribunal member had not made a finding about what might happen to him in the short period before he was taken before a magistrate in Colombo in the event he was charged for leaving Sri Lanka without a passport.
146. The most recent DFAT country report on Sri Lanka was published in 2018.[11] The Tribunal outlined the information in that report regarding the treatment of returnees. It noted that Sri Lanka returnees are questioned at the airport and where illegal departure is suspected under the Immigrants and Emigrants Act police at the airport make an arrest, take photographs and fingerprints, and at the earliest opportunity take the detainee to the closest Magistrate’s Court and then responsibility for the detainee is taken over by the courts. Passengers are usually charged and released on bail if they plead not guilty and fined if they plead guilty. A guilty plea will attract a fine to be paid in one sum or by instalments and the defendant is free to go. The fine for a first offence is equivalent to AUD25. If the returnee pleads not guilty, he or she is released on their own guarantee or guarantee by a family member. Sometimes a charged person is required to report until finalisation. The Sri Lankan Attorney General’s Department has advised that no mere passenger has ever been given a custodial sentence, however fines are issued to deter people from leaving illegally.
[11] The most recent Country report on Sri Lanka was published on 4 November 2019 and the information on returnees and illegal departees was essentially the same as the 2018 report except for the approximate amount of fines levied. In 2020 the applicant was referred to the later report and invited to comment.
147. Generally, the amount of time in detention is very short, that is, up to 24 hours and occasionally up to 2 days. There is no country information indicating that detention at the airport or Magistrate’s Court would be harmful.
148. The Tribunal put it to the applicant that if he returned, he would be questioned and possibly charged with illegal departure. When asked what he thought may happen to him, he stated he did not know what would happen. He understands the country information, but he is a bit worried because he might be in trouble.
149. When asked whether he had other concerns, he stated he is worried he will have trouble. He told the Tribunal he feared returning to Sri Lanka because he worked in the 2010 election campaign and they had reports about him. The Tribunal asked him why he would be concerned about work he did 9 years ago in the 2010 election. He stated that Karuna group members are still active. While he acknowledged that Karuna was involved in national politics, other members are still members of the paramilitary group. The Tribunal put it to him that country information indicated that groups did operate during and after the civil war, but they are no longer active as paramilitary groups.

150. The applicant stated he heard that after recent bomb blasts, members of the group are involved in other activities in the country. He has heard they have been given weapons and training and they are trying to become active.
151. The Tribunal asked him why he would be targeted by this group because he had worked in the TNA election campaign in 2010. He was not a high-profile figure and had just been helping in campaigning for the election in 2010. The Tribunal considered that he did not have a high profile and consequently there was no reason the group would continue to be interested in him over such a long period of time. He stated that they may still be angry with him.
152. He stated that he was also concerned because he lives near a Muslim area, and that after the bomb blasts there has been a lot of activity by Sri Lankan authorities. The Tribunal put it to him that the authorities were looking for people involved in Islamic terrorism and there was no evidence that Tamil Hindus are being harmed as part of these operations.
153. He agreed that his family have lived in that area for a long time but they were struggling and asked him not to return. At the moment, his children were not going to school.
154. The Tribunal accepted that it was unsettling for people in Sri Lanka to be affected by the bomb blasts after a period of relative peace. The Tribunal put it to him that this did not suggest he would be targeted for one of the reasons claimed.
155. He stated that the government believed there were about 3,000 individuals training and living overseas, and the government believed that once they removed the emergency law those people may come back and start problems.
156. In his final remarks, he stated the authorities can still arrest, shoot and kill anyone. He stated the reason he feared harm was because he had worked in a previous election campaign and they are very unhappy.
157. The Tribunal put it to him that the TNA had several members in parliament and were a significant political group. He stated that if Rajapaksa wins the elections in 2019, the Karuna group will become more powerful.
158. The applicant’s representative made a brief submission and asked for further time to put in written submissions. He pointed out the 2018 DFAT report had been published before the bombings and did not take into account the change in the country’s situation.
159. The applicant’s representative made post hearing submissions on 25 July 2019. He submitted that since the DFAT country report was published in May 2018, the situation in Sri Lanka has changed and the political atmosphere has become tense with a significant amount of disunity. He referred to the attempted coup in October 2018 and the Easter Sunday bombings in 2019 which created a perception of security failures. He also referred to fears in the Tamil community that if the Rajapaksa family members and their colleagues returned to power that Tamils would again be subject to harassment and detention. He referred to the extension of the state of emergency and the applicant’s extended absence overseas which may put him under suspicion. He also referred to the applicant’s fears that his illegal departure, his history of abuse at the hands of the authorities, his involvement in the TNA and his refusal to join the Karuna group would put him at risk of detention on his return. If he was detained, he faces the risk of torture in detention.
160. The applicant also provided copies of various media articles referring to the Easter bombings and its aftermath, the political aspirations of members of the Rajapaksa family and colleagues, DFAT Smart Traveller advice and reports on Tamil mistreatment.
161. On 3 February 2019 the Tribunal wrote to the applicant and advised that DFAT had published a new country report on Sri Lanka on 4 November 2019 and invited the applicant to comment on the report if he wished. It noted that the most recent Tribunal hearing was held in July 2019. It advised at the time of the hearing the most recent DFAT report had been published on 23 May 2018. The new report updated the information in the 2018 report and includes more detailed background information including on the security situation following the Easter Sunday terrorist attacks.
162. It advised its view that the country information in the most recent report was broadly consistent with the May 2018 DFAT report, for instance, regarding the treatment of Tamils, security conditions in the north-east and the treatment of returnees (including of people who have committed offences under the Immigrants and Emigrants Act).

The applicant’s representative responded with submissions and documents on 13 February and 4 March 2020. The submissions referred to the change in government which took place in November 2019, the election and appointment of members of the Rajapaksa family, the return of failed asylum seekers, the current political situation and the impact on the Tamil community in Sri Lanka. The submissions also noted that the mooted repeal of the PTA would not take place and that the current government has endorsed possible changes to reduce the representation of minorities in the legislature.

164. In March 2020, the applicant provided three documents and English translations:
·A copy of a letter dated [in] February 2020 together with English translation signed by an officer of the Hindu temple in [Town 2]. The letter states that the applicant was known to the temple circle as an active social worker who took actions against the Sinhalese political party supporters to safeguard the rights of Tamil civilians as well as being an active member of the Tamil political party in the local district. He was a supporter and took part in all the activities relating to the welfare of the Tamil people. The author refers to the current Rajapaksa government and the fear that this has created in the mind of Sri Lankan Tamils. It is the author’s opinion that it is dangerous for people like the applicant to return and live in Sri Lanka.
·A copy of the official request by the applicant’s wife to the officer in charge of the police for permission to use her premises as campaign offices in support of the United National Party (UNP) candidate for President.
·A letter from the coordinator of the local division of the UNP seeking to use the applicant wife’s shop building for the election campaign of the presidential candidate Mr Sajith Premadasa dated 2 November 2019. TNA party members and supporters backed the UNP candidate during the November 2019 presidential election. The applicant’s wife gave her permission to the UNP for their election campaign and the fact that this shop was used for the election campaign was acknowledged publicly and supporters of the Rajapaksa government are aware of it. The applicant fears if he is forced to return to Sri Lanka he will be targeted as a supporter of the UNP and he fears for the consequences.

Assessment of claims
Background country information
165. The latest DFAT country report on Sri Lanka[12] outlines the recent history of Sri Lanka
2.1 Sri Lanka, formerly Ceylon, achieved independence from the United Kingdom (UK) in 1948. Historically, relations between Sri Lanka’s majority Sinhalese and minority Tamil communities have been tense. Tamils received preferential treatment during British rule, including in education and civil service employment. To address this imbalance, in the period following independence successive Sinhalese-led governments introduced measures to promote the primacy of the Sinhalese community, including: making Sinhala Sri Lanka’s sole official language; favouring Sinhalese students in higher education admission; granting special constitutional status to Buddhism; and denying citizenship to Tamil migrant plantation workers from India (see Demography). Against a backdrop of growing Sinhalese nationalism, Tamils were also the target of large-scale countrywide riots, including in July 1983 (‘Black July’). These developments created a sense of marginalisation within the Tamil community and encouraged calls for an independent Tamil state, Tamil Eelam, in the predominantly Tamil-populated north and east of the country.
2.2 A number of militant groups emerged to advance the cause of Tamil statehood. The most prominent of these, the Liberation Tigers of Tamil Eelam (LTTE), was formed in 1976 and launched an armed insurgency against the Sri Lankan state in 1983. The LTTE – commonly known as the Tamil Tigers – established and maintained de facto control of Tamil-populated areas in the north and east. The LTTE gained notoriety for its recruitment of children and, in particular, use of suicide bombings. It was proscribed as a terrorist organisation by the United States (US), Canada, the European Union, Australia and India, among others. A ceasefire between the Sri Lankan Government and the LTTE, signed in 2002, reduced the intensity of fighting but failed to yield a political settlement. The ceasefire broke down in 2005 and internationally-mediated peace talks collapsed in 2006. Government forces re-took the eastern part of the country from the LTTE in July 2007 and, in January 2008, launched a major offensive to capture remaining LTTE-controlled areas in the north, culminating in the elimination of most of the LTTE’s senior ranks, including its leader, Velupillai Prabhakaran. The LTTE surrendered in May 2009. The UN and human rights organisations have documented serious violations during the final stages of the war, during which up to 40,000 civilians may have been killed. In total, Sri Lanka’s 26-year civil war is estimated to have claimed 100,000 lives and displaced over 900,000 people.
[12] DFAT Country Information Report Sri Lanka 4 November 2019.

166. The Eastern Province of Sri Lanka covers much of the eastern coast of the island, and Batticaloa is the provincial capital.
167. During the 2002 to 2006 ceasefire, the Eastern Province remained tense with the LTTE reportedly killing “many dissenting Tamils, forcibly recruiting children and continuing their harassment of Muslims”.
Is the applicant an ethnic Tamil and a Hindu?
168. The applicant has consistently claimed he is of Tamil ethnicity and is a Hindu, and the Tribunal accepts these claims. The applicant claims and the Tribunal accepts he was born in [Town 1], Ampara District, in the eastern district of Sri Lanka. He speaks Tamil fluently and appears to be familiar with the geography of the Ampara area.
169. The applicant provided evidence of harassment, questioning and mistreatment during the civil war. The country information regarding the widespread suspicion and harassment of young Tamil males during the civil war is consistent with the applicant’s evidence regarding his early life. Despite these early problems, the applicant married and became a [Occupation 2] in [Town 1].
Was the applicant a member or supporter of the Tamil National Alliance?
170. The applicant has given consistent evidence which the Tribunal accepts that he was a supporter of the Tamil National Alliance (TNA). The applicant claimed he joined the TNA in 2001 as his [Relative C] was a candidate for the TNA in the [District 1] elections in [year] and [year].
171. He has stated and given oral evidence that during election campaigns for the TNA, he was doorknocking, putting posters up, putting up stages for speeches and generally engaged in a practical level of the campaign. When questioned about the origins of the TNA, the history, their political alliances and policies, he appeared to be confused but he appeared to have a basic knowledge of how the group came together even if it was not clearly articulated. He did not appear to have a well-understood knowledge of the history of policies and objectives of the TNA.
172. The applicant provided letters from two members of the TNA; both had been MPs at some stage. The letters confirmed that the applicant had an involvement with the TNA or associated groups. He was described as a youth engaged in public and social services. In the letter from [Mr B] who is a Member of Parliament for [Location 1], he is described as a person with an affiliation with the TNA. The author stated that the applicant was appointed as an officer in charge of the party office for the 2010 election campaign. The applicant also provided a letter written in 2020 from local Hindu temple officials stating that the applicant had been an active social worker and had been involved with Tamil political groups. The applicant’s activities were described in a generic fashion in this letter, and the Tribunal considers it provides some support for the applicant’s claim that he had been involved in practical aspects of election campaigns prior to his departure from his village.
173. The applicant claimed that photographs were taken by members of the opposing SLFP during campaigns and he was occasionally threatened and the Tribunal accepts this evidence. He claims he was monitored by the CID during the election campaign; however, he has not explained how he was aware of such monitoring and this claim appears to be based on speculation. However, the country information indicates that members of the Tamil community were monitored during and immediately after the end of the civil war and it is plausible that he was monitored for reasons of his activities. In any event, the country information indicates that such monitoring in the north and east has significantly decreased since the end of the civil war.
174. The country information indicates that the TNA did not exist before 2004. However, the party was an alliance and its precursor groups, including TELO, existed in 2001 but the TNA did not come together as an alliance until 2004. While his evidence before the Tribunal on 11 November 2015 was somewhat confused and incoherent, the Tribunal considers he was trying to convey this fact to the Tribunal.
175. The Tribunal accepts that the applicant’s [Relative C] stood for election for the TNA, and that due to the applicant’s family relationship with his [Relative C] and his interest in the party he offered his services during election campaigns in the practical way he has described, that is, in doorknocking, in putting up posters and encouraging members of the community to vote for the TNA. The Tribunal considers he did this out of family loyalty to his [Relative C] and due to his belief that the TNA advocated for the interests of the Tamil community. However, the Tribunal does not accept that he was an important or high-profile member or supporter of the TNA in his local area. He was essentially a campaign worker in the local office during election periods.
Did the applicant have contact with the Karuna group in his local area?
176. The applicant claimed the Karuna group were active in the Eastern Province at the time of his involvement in the TNA. He claimed that he was intimidated and mistreated by the group from 2004 until he left Ampara.
177. The country information indicates that the Karuna Group was formed in 2004 under the name Tamil Makkal Viduthalai Pulikal (Tamil Peoples Liberation Tigers or TMVP) when top LTTE commander in the Eastern Province, Vinayagamoorthi Muralitharan [Colonel Karuna], defected from the LTTE. The TMVP split into two factions in 2008. These factions, which are named after their respective leaders, are referred to as the Karuna and Pillayan factions. Karuna held the position of Deputy Minister of Resettlement in the UPFA government. Pillayan was the Chief Minister of the Eastern Province.[13]
[13] DIAC Country Information Service 2010, ‘SRI LANKA: Paramilitary groups in post-war Sri Lanka’, (Sourced from DFAT advice of 20 May 2010), 21 May.
178. The split with the LTTE in 2004 marked a turning point in the Eastern Province and in the LTTE’s history. With its Batticaloa-Ampara ‘commander’ ‘Colonel’ Karuna forming his own military front, the Tamil National Front (TNF), and later a political party, the TMVP, the LTTE lost its supremacy in the East.
179. As one commentator noted in May 2004, some 70 percent of the LTTE political offices in the Batticaloa District remained unoccupied and the bulk of its military and administrative organisation in the area collapsed following the split. The LTTE also started losing the people’s support and public confidence in its capacities to sustain its struggle to achieve a separate Tamil homeland.[14]
[14] Singh, A. 2007, “Batticaloa: LTTE’s lost ‘citadel’”, South Asia Intelligence Review (on South Asia Terrorism Portal website),Vol. 5, No. 43, 7 May In 2004 Karuna organised the TMVP, and throughout 2006 the TMVP established offices in Colombo and in towns in the eastern districts. Karuna, as President of the party, expressed a willingness to contest future elections.[15]
[15] Hariharan, R. 2004, ‘Karuna in Politics: Old War Horse in a New Mantle’, South Asia Analysis Group website, 19 October: United Nations 2006, Report of the Secretary-General on children and armed conflict in Sri Lanka, Security Council, S/2006/1006, 20 December, p.2/footnote 4 In April 2004, the LTTE launched an overwhelming assault against Karuna’s group. Karuna disbanded his forces and escaped with a small group of his supporters. In a gesture which won him favour with the local population, he encouraged about 2,000 child soldiers to return to their families.[16]
[16] Human Rights Watch 2007, Complicit in Crime: State Collusion in Abductions and Child Recruitment by the Karuna Group, January, Vol. 19, No. 1(C), p.18; International Crisis Group 2006, Sri Lanka: The Failure of the Peace Process, Asia Report No. 124, 28 November, p.9.
182. However, despite Karuna’s absence, his group gradually reasserted influence in both government and previously LTTE-controlled areas in the east. Small-scale fighting and escalating tit-for-tat killings between the LTTE and the Karuna group persisted into 2006.[17]
[17] Human Rights Watch 2007, Complicit in Crime: State Collusion in Abductions and Child Recruitment by the Karuna Group, January, Vol. 19, No. 1(C), pp.18-19.
183. The TMVP, which switched its allegiance to the Sri Lankan government, fought a guerrilla war with the LTTE, forcing the LTTE to give up its remaining strongholds in the province in July 2007.[18]
[18] International Crisis Group 2008, Sri Lanka’s Eastern Province: Land, Development, Conflict, Crisis Group Asia Report N°159, 15 October, p.ii.
184. Amnesty reported that Karuna had disbanded his cadres and went into hiding after four days of fighting in April 2004, but the remaining elements of his group continually ambushed and attacked the LTTE and those affiliated with it. In the wake of the December 2004 tsunami and subsequent organisation of relief work, the LTTE and the Karuna faction sought to strengthen their control in the east.[19]
[19] Amnesty USA 2005, Sri Lanka: A climate of fear in the East In 2006, it was reported that Karuna planned eventually to join the political mainstream with the TMVP. But in 2006, the group was focused on keeping the Tigers in check and only intended to disarm when they were under control.[20] The South Asian Terrorist Portal timeline shows that the LTTE and the Karuna group were engaged in conflict from 2004 to 2007 in the Eastern Province, notwithstanding a ceasefire during that period.[21]
[20] Gardner, Simon 2006, ‘INTERVIEW - Renegade Sri Lanka rebels refuse to give up arms’, Reuters, 26 February
[21] ‘Sri Lanka Timeline - Year 2005’ 2006, South Asia Terrorism Portal “Endangered Peace” Peiris 1 May 2006 Returnees who have a previous connection with the LTTE but not a significant role in the group and/or post conflict separatism, are able to return to their communities without suffering ill-treatment, although they may be questioned on return at the airport and may be monitored once they return to their communities. Several sources told the 2019 UK Home Office FactFinding Team that previous membership of the LTTE would not be enough to make someone of interest and that police interest, if any, would relate to whether the person has committed any criminal act. This is because many had left the country using forged identities and the police were therefore seeking to establish the true identity of the returning person and whether they are wanted for any criminal acts in addition to leaving the country with false documents.

272. The Tribunal does not accept that the applicant would be imputed with pro LTTE political opinions or that he would be suspected of being a former member of the LTTE for reasons of the factors set out above. Accordingly, the Tribunal does not consider that he would face a real chance of serious harm for this reason if he returned to Sri Lanka now or in the foreseeable future.
Wealthy Tamil businessman from the Eastern Province
273. The Tribunal does not accept that the applicant would be perceived to be a wealthy Tamil businessman from the Eastern Province. The evidence before the Tribunal is that when he lived in Ampara, the applicant operated a small [business] from his home premises. At the hearing before the Tribunal he stated that his wife owned their home and another property although earlier he had stated he owned property in Ampara and provided supporting documents. In any event, the Tribunal accepts that he and/or his wife are the owners of property in Ampara consisting of a house and another property.At the time of the hearing, he worked as a [Occupation 1] in Australia and stated that his wife’s uncle in [Country 1] was providing his wife and children with most of their financial support.
274. The Tribunal accepts that the applicant was a business owner from Ampara and as such may have been subject to requests and pressure to contribute monies to the Karuna group or their associates between 2004 and 2010.
275. The country information indicates that during the civil war and immediately after the war (2004–2010), the Karuna group intimidated and pressured local business people in Ampara to provide money to fund their paramilitary and political functions. However, as set out earlier, the Karuna group has disarmed and is not operating as a paramilitary group any longer and there is no evidence of continuing extortion or requests for funds from local business people. The LTTE no longer exists in Sri Lanka and there is no evidence before the Tribunal of any other groups who might be involved in the extortion of business people from the Ampara District.
276. The applicant’s wife is the owner of two properties and there is no claim or evidence that she has been pressured or threatened to provide money to any groups in the local area.
277. The Tribunal does not accept that the applicant is a wealthy businessman from the Eastern Province but accepts that he formerly ran a [business] in Ampara. It does not accept that his status as a former businessman would put him at risk of extortion, abduction or other mistreatment from any groups in the community.
Claims relating to evidence given regarding people smuggling
278. The applicant initially claimed that he gave information to Australian authorities regarding the identity of crew on the people smuggling boat which brought him to Australia. There is no reliable evidence to support this claim before the Tribunal. Even if he provided this information, given the passage of time the Tribunal does not accept he would be questioned by Sri Lankan authorities or targeted by persons involved in the venture if he returned.
Conclusion on refugee criterion
279. Overall and taking all of the above into account, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of his Tamil ethnicity, his religion, his actual or imputed political opinion or membership of a particular social group or for any other Convention-related reason.
Does the applicant meet the complementary protection criterion?
280. Having found that the applicant does not meet the refugee criterion, the Tribunal has considered whether, on the evidence before it, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka.
281. In considering whether there is a real risk, the Tribunal has taken into account country information set out earlier in this decision. It has also considered other country information set out below.
282. The Tribunal does not accept that if the applicant is removed to Sri Lanka that he will suffer the death penalty or arbitrary deprivation of life.
283. Other than for his illegal departure, there is no evidence that the applicant has committed any criminal offences which might result in the death penalty being imposed.
284. With respect to arbitrary deprivation of life, the Tribunal does not consider that he faces a real risk of being deprived of life by a third party or parties by either lawful or unlawful action which has elements of capriciousness, inappropriateness, injustice or lack of predictability. The Tribunal considers that there is no evidence the applicant will be affected by conduct which might be responsible for the deprivation of his life.[59]
[59] SZDCD v MIBP [2019] FCA 326 at [40]–[44] and [48].
285. The Department’s Complementary Protection Guidelines emphasise 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.[60]
[60] Department of Home Affairs, Complementary Protection Guidelines, sections 3.4.1 (generally) and 3.4.1.2, as re-issued 29 February 2020.
286. There is no evidence that there is a widespread condition of violence in Sri Lanka and the Tribunal does not accept, for reasons set out earlier, that there is a particular risk to the applicant either from Sri Lankan authorities, the Karuna group, or [Mr E] or his associates.
287. While the Tribunal accepts that the applicant may be charged under the I & E Act, it does 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.
288. As discussed with the applicant at the Tribunal hearing, country information indicates that if the applicant is charged with illegal departure, which is likely, he will be held at the airport until he is conveyed to the local Magistrate’s Court where he will be held until he comes before a magistrate. This is either within 24 hours or at the most 2 days. There is no evidence that detainees are subject to mistreatment during such detention. As he was a fare paying passenger on a people smuggling venture, he will either plead guilty and pay a fine or be released on bail on his own or his family’s guarantee. As the evidence indicates he has a close‑knit and supportive family, the Tribunal considers he will have no difficulty in being released on bail either on his own or his family members’ guarantee.
289. The Tribunal does not accept that questioning at the airport or a short detention in the airport’s holding cells or at the Magistrate’s Court amounts to significant harm. The country information indicates that only those involved in people smuggling will generally be denied bail and subject to longer prison conditions. Furthermore, there is no evidence which suggests that the authorities would intend to cause suffering by virtue of conditions in detention.
290. Although not specifically claimed, the Tribunal has considered whether the applicant will face a real risk of significant harm arising from discrimination.
291. With respect to his Tamil ethnicity and his Hindu religion, country information indicates that Sri Lanka’s constitution prohibits discrimination on the basis of race, religion, language, caste, sex, political opinion, or place of birth.[61] In addition to constitutional protection, the country’s penal code protects the rights of religious minorities.[62]
[61] ‘Country Reports on Human Rights Practices for 2019 - Sri Lanka’, US Department of State, 11 March 2020, Sect.7d.
[62] ‘Sri Lanka Country of Origin Information Compilation’, Austrian Red Cross/Austrian Centre for Country of Origin & Asylum Research and Documentation (ACCORD), December 2016, p.107.
292. DFAT notes:
3.6 Tamils have a substantial level of political influence, and their inclusion in political dialogue has increased since the change of government in 2015. Tamil political parties are numerous, with the largest coalition of parties operating under the umbrella of the TNA. The TMVP and the EPDP are also active politically. The TNA’s vote share dropped with a noticeable swing towards more hardline Tamil groups in the last local government elections (February 2018). Tamils faced less harassment during the 2015 presidential and parliamentary elections than in the 2010 elections. DFAT understands Tamils do not receive unwarranted attention from authorities because of their political involvement, including with the TNA. DFAT assesses there are no barriers to Tamil political participation.
3.7 Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs. Even the Tamil-dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil-speaking police officers and military personnel in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities.
3.8 DFAT assesses there is no official discrimination on the basis of ethnicity in public sector employment. Rather, Tamil’s under-representation is largely the result of language constraints and disrupted education because of the war.

293. There is no evidence that there has been a change in conditions since the November 2019 election of President Rajapaksa. In February 2020, President Gotabaya Rajapaksa acknowledged the role of leaders from all ethnic groups in ‘achieving and ensuring’ Sri Lanka’s independence and also guaranteed religious freedom to all persons.[63] DFAT concludes that there is only a low risk of official discrimination against non‑Buddhist minorities.[64]
[63] 32 ‘Address by His Excellency Gotabaya Rajapaksa, President of the Democratic Socialist Republic of Sri Lanka at the 72nd Independence Day celebrations’, Permanent Mission of Sri Lanka to the United Nations’, 4 February 2020.
[64] DFAT Country Information Report Sri Lanka 4 November 2019 3.27.
294. With respect to the applicant’s claim that he would not have freedom of expression in Sri Lanka, the Tribunal accepts that prior to 2015 there was limited space for free public expression of views, particularly for Tamils. DFAT notes “The space for civil society to operate has widened considerably since 2015, including in the north and east. Civil society played an important role during the 2018 constitutional crisis in calling for democratic rights and the constitution to be upheld, and large public protests and rallies were held with little violence.”[65]
[65] DFAT Country Information Report Sri Lanka 4 November 2019 3.108.
295. DFAT reports:
3.110 The constitution guarantees freedom of speech and expression, freedom of peaceful assembly and freedom of association. Demonstrations occur regularly, although restrictions on public gatherings under the Emergency Regulations introduced on 22 April 2019 temporarily impacted on freedom of assembly. The Emergency Regulations lapsed on 22 August 2019. Protests are subject to a notification procedure. This requires protest organisers to notify the local police of their intention to hold a protest six hours in advance. Local sources told DFAT that participants in politically-sensitive protests in the north, particularly in relation to missing persons and land returns, are monitored and sometimes questioned by the authorities.[66]
[66] DFAT Country Information Report Sri Lanka 4 November 2019.

296. There is some concern that the current government will move to restrict the freedom of expression and there have been some arrests and intimidation of individual political opponents, journalists and individuals who have been responsible for investigating alleged corruption involving the President’s family or associates.[67] However, the Tribunal does not consider that the applicant’s freedom to join and support his political party of choice has been restricted. It does not accept that his general freedom to express his views has been curtailed.
[67] ‘Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka’, OHCHR, 18 February 2020, p.6, ‘Report of a Home Office fact-finding mission to Sri Lanka’, UK Home Office, 20 January 2020, pp.11, 12, 49, ‘Sri Lankan police arrest second former Cabinet minister’, Associated Press (AP), 28 December 2019, 20191230112949; ‘Former Minister Rishad Bathiudeen says his brother’s arrest is a political revenge against him’, Colombo Page, 16 April 2020.
297. Having considered the applicant’s circumstances singularly and on a cumulative basis, and for all the reasons set out above, the Tribunal is 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 he 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.
Conclusion
298. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
299. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
300. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
301. The Tribunal affirms the decision not to grant the applicant a protection visa.
Louise Nicholls
Senior Member

ATTACHMENT A
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

[2020] AATA 3833

31 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Remedies

Statutory Construction

Natural Justice