1803983 (Refugee)

1803983 (Refugee) [2023] AATA 3985 (18 August 2023)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1803983
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Gabrielle Cullen
DATE OF DECISION:  18 August 2023
DATE CORRIGENDUM
SIGNED:9 November 2023
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

At paragraph 12 please delete “the matter should be remitted for reconsideration” and insert “the decision under review should be affirmed.”
Gabrielle Cullen
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1803983
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Gabrielle Cullen
DATE:18 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 August 2023 at 4:56pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Tamil from the North – association with the LTTE – compulsory training – employed as a heavy vehicle driver for the LTTE in road construction – departed the country illegally – failed asylum seeker – credibility concerns – claimed adverse interest from the CID – burying and digging up ammunition and weapons – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 91K, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 4 April 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who is a citizen of Sri Lanka claims to fear return because of his past association with the LTTE working for them in road construction digging holes to bury weapons and ammunition, and as a Tamil from the North of Sri Lanka, as a returned asylum seeker, and as he departed Sri Lanka illegally.
Information from the applicant indicates the applicant departed Sri Lanka illegally by boat in February 2013 and arrived in Australia [in] April 2013. He applied for a Class XA protection visa on 12 September 2013 but the application was found to be invalid under s 91K of the Act. On 31 May 2016 he applied for a Subclass 790 Safe Haven Enterprise visa to which this decision relates.
The applicant attended an early entry interview on 26 May 2013. The Tribunal has considered the transcript of that interview and where relevant the evidence from that interview appears in this decision.
The applicant attended an interview at the Department on 3 April 2017. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision.
The delegate refused to grant the visa on 4 April 2017. While the Department accepted the applicant had done paid and voluntary work for the LTTE, had departed illegally and would return as a Tamil from the North and a failed asylum seeker, he did not accept that he would face a real chance of serious harm or a real risk of significant harm. The initial notice of the decision was found to be defective. The correct notification was finally emailed and dispatched by post to the applicant on 14 February 2018.
The applicant applied for review of the Department decision on 15 February 2018 and attached the decision of the Department.
The applicant appeared before the Tribunal on 9 August 2023 to give evidence and present arguments and where relevant the evidence from that hearing appears in this decision. The applicant was assisted with an interpreter in the Tamil and English languages.
The issues to be considered in this case are as follows:
·Is the applicant credible as to his country of citizenship?
·Does he have a right to enter and reside in any other country?
·Is the applicant credible as to his claims?
·Does the applicant have a well-founded fear of persecution in relation to Sri Lanka and meet the refugee protection provisions of the Act?
·Does the applicant meet the protection obligations under the complementary protection provisions of the Act?
CRITERIA FOR A PROTECTION VISA
The relevant criteria for a protection visa are outlined in the Appendix.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has read and considered the material referred to in the delegate’s decision and other material available to it from a range of sources. This includes, but is not limited to, the following:
·The applicant’s application for a Safe Haven Enterprise visa dated 23 June 2016, including identity documents.
·Oral evidence provided by the applicant at the early entry interview held on 26 May 2013, Department interview held on 3 April 2017 and the Tribunal hearing held on 9 August 2023.
·Applicant’s statutory declaration dated 22 June 2013.
·Applicant’s supplementary statutory declaration submitted with his Safe Haven Enterprise visa application.
·Applicant’s Vulnerable Group Feeding – Household Food Ration Card Ration card for [District 1] when applicant was [age] on [date] July 2010.
·Applicant’s UNHCR Return Form dated [date] September 2010 for the applicant and his family.
·Department of Foreign Affairs and Trade (DFAT) Country Information Report Sri Lanka, 21 December 2021 (referred to as the DFAT Report).
·Department of Immigration – PAM3 Refugee and humanitarian – Complementary Protection Guidelines and PAM3 Refugee and humanitarian – Refugee Law Guidelines.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Is the applicant credible as to his country of citizenship?
On the basis of the applicant’s identity documents and evidence provided at hearing, the Tribunal accepts that the applicant is a national of Sri Lanka. Therefore, for the purposes of s 36(2)(a) the Tribunal accepts that Sri Lanka is the country of nationality and for the purposes of s 36(2)(aa) the Tribunal accepts that Sri Lanka is the receiving country.
Does he have a right to enter and reside in any other country?
While there is evidence that the applicant visited [Country 1] in 2012 there is no evidence before the Tribunal that he currently has a right to enter and reside in any other country in terms of s 36(3)–(5) of the Act, other than Sri Lanka.
Is the applicant credible as to his claims?
The applicant’s claims
In his statutory decoration dated 22 July 2013 attached to his application for the visa the applicant claims to fear return to Sri Lanka due to his association with the LTTE as follows:
·Due to where he grew up in the North, being [Village 1], [Division 1], [District 1], his life has been heavily affected by the civil war between the Sri Lankan Army (SLA) and LTTE since he was born as the LTTE had control of the area.
·In 1989 he began working as a driver in hs district and he could not go beyond his district as the LTTE forbade it.
·In 1997 everyone including his family and village attended compulsory training run by the LTTE and once completed a card was given to purchase goods and services. If a person did not have the card, they could not purchase these goods and services.
·In this compulsory training, they trained for 10 to 15 days between 6 am to 7 am and were taught how to run, duck down and roll over and they were shown how to handle a gun but used sticks as props. On the last day they were given guns and told to shoot three rounds.
·He never received military training or directly participated in the armed conflict.
·In 1998 the LTTE informed families in the area that it was compulsory for one family member to assist the LTTE. He was chosen and as a result between 1998 and 2001 approximately every six months he stacked logs of wood on either side of bunkers and built a wall to protect the people inside the bunkers in [District 1] and [District 2]. He said he worked for 10 to 15 days at a time.
·In or around 1998 on two or three occasions he was required to carry ammunition and stand as a security guard while the bunkers were being built.
·In 2007 he commenced working as a driver for the LTTE with his main duties including excavating sand, soil and earth and transporting it to the bunkers.
·In May 2009 the SLA destroyed the LTTE and brought the civil war to an end.
·On 15 May 2009 the SLA moved people from his village to the refugee camps in [City 1], Northern Province. Together with his family he was taken to [location] and the Criminal Investigation Department (CID) held a meeting with everyone. The CID advised that everyone who had received compulsory training was to come forward and that they would be forgiven. The applicant did not come forward.
·He and his family were transferred to [a new] camp as [the first] camp filled up. At that camp the applicant began working for a retired SLA official who was overseeing the camp.
·At [the new] camp he was questioned about his LTTE involvement and the returned SLA official who he was working for spoke on his behalf and said he was not a member of the LTTE and promised to bring him to the CID if he was of interest to the authorities.
·He was then transferred to [a third] camp, a temporary holding centre to further screen for ex-LTTE members. At that camp he was interrogated about any LTTE involvement and he denied he was involved with the LTTE and said he only worked as a driver of small vehicles to earn money. The CID officer did not accept this and said somebody had submitted a letter about his involvement. He claims he was threatened that if he did not admit his level of involvement, he would be sent to prison in Colombo. Eventually his friend from his village who could also speak Sinhalese acted as guarantor and signed a letter saying he was not part of the LTTE.
·In 2010 together with his family he was sent back to his village, and about 7 or 8 months later more people returned to the village from the camps. He claims in 2011 it became more populated and he heard through friends his name was asked for by the CID. He claims he then started working in [City 2] to avoid the CID but would return home to visit his family from time to time.
·When the CID became more persistent, he became more fearful and fled to [Country 1], entering [in] May 2012 on a three‑month temporary tourist visa. He worked as a driver in [Country 1], overstayed his visa and then left voluntarily, returning to Sri Lanka [in] September 2012.
·When he returned his friends informed him that the CID continued to ask about him and his friends warned him to be careful as they were questioning people about him. He claims after this he would go and work for 15 days straight and then return home at night to visit his family.
·After his return another driver with the LTTE was caught by the CID and then the CID began to look for other drivers and he claims the CID suspected he drove larger vehicles that transported and hid weapons.
·[In] February 2013 with the assistance of a people smuggler he fled Sri Lanka by boat, departing illegally.
·He fears being imprisoned, severely physically assaulted, tortured and/or killed on return to Sri Lanka by the SLA and Sri Lankan authorities, CID and police.
In his supplementary statutory declaration submitted with the current application he outlined the following claims:
·On 15 May 2009 when referring to the meeting held by the CID in the IDP camp asking if anyone attended compulsory training, he claims he did not attend the meeting as he was fearful as the CID took people from this meeting and detained them despite assurances that they would be pardoned if they admitted involvement in the LTTE training. He claims people were sent to gaol from the meeting.
·With regard to his claims that when he returned to Sri Lanka from [Country 1] the CID continued to question him and his friends warned him to be careful, he now claims he spent much of this time in hiding and rarely stayed in open places due to his fear of the CID and need to avoid them.
·In his previous statement he refers to digging bunkers and he now adds that part of his role was also to dig and hide weapons and kerosene for the LTTE.
·After he left Sri Lanka the CID visited his family at home, approximately 4 to 5 months after his arrival in Australia. He claims he did not mention it in his earlier statement because it had not happened when he first met his lawyer. The CID asked how he travelled to Australia and who took him there and where he hid the weapons and accused him of hiding weaponry. He claims he believes the CID know he is in Australia as some others on the boat were deported.
·His mother was interrogated and forced to give his Australian mobile and he received some missed calls from unknown Sri Lankan numbers. He claims he refused to answer them because he was fearful of the CID.
·He claims no one can protect him in Sri Lanka as he is a Tamil with suspected links to the LTTE and as a Tamil he cannot relocate safely in Sri Lanka.
He also claims to fear return as he departed Sri Lanka illegally travelling by boat to Australia, as a failed asylum seeker and as a Tamil, as well as being a Tamil from the North with an imputed LTTE association due to his work for the LTTE.
At the Department interview held on 3 April 2017 the applicant reiterated his claim to fear return to Sri Lanka as he is suspected of involvement with the LTTE due to the work he did for the LTTE between 2007 and 2009 where he said he undertook paid employment as a driver operating heavy machinery such as graders, backhoes and other heavy equipment repairing roads, digging defensive earthworks, and preparing pits to protect oil drums and weapons from aerial attack. Regarding his claim to have buried weapons, he stated this involved digging holes where told, into which the LTTE would then transport crates of weapons and barrels of oil before covering them up. He stated he had no role to play in packing or transporting the weapons and did not know what type of weapons they were as they were all packed. He said he did this until the end of the war.
He described his surrender to the SLA at the end of the war as outlined in his written claims. The applicant described in some detail the screening process he undertook before being transferred to the IDP camp after his surrender. The applicant stated that after his initial surrender he was advised by a Moslem CID officer who he had known when he used to work as a driver that he did not need to register as someone associated with the LTTE. He stated that when they were transferred to [Location 1] where further initial screening took place, the Sri Lankan authorities used informers to screen LTTE cadres. The applicant was not identified and was transferred to [named] IDP camp with his family.
The applicant stated that after his arrival in [the named IDP camp] a call was made for experienced drivers, and the applicant volunteered. He stated he worked as a driver for the camp commander and also drove a tractor, which was used to transport food and supplies throughout the camp. The applicant stated that the CID operated from outside the camp and the camp commander would not allow them to operate in the camp. The CID would call for people who were of interest to them to be brought for investigation. He stated for the 18 or so months he was in that camp, he was never called for an investigation.
The applicant stated that before he and his family were released, they were transferred to a different camp for about three months. In that camp the applicant stated he was called in for questioning by the CID who stated they had received information that he had assisted the LTTE. The applicant stated he denied this and was released, however he needed to return the next day and sign in. He stated after this he did not attend the office again. The applicant said that on the day of his release he was initially informed that his release would not be approved as there was still a need for further investigation. He stated however that a Singhalese man who had lived in his village and had assisted the LTTE in the past and had been working as an informer for the CID in the camp vouched for the applicant that he was not involved with the LTTE, and his release from the IDP camp was approved. The applicant testified that he had told the CID he had worked as a driver on road construction in the period between 2007 and 2009.
The applicant testified that he remained in his home village for the first seven or so months. He stated when the village started to fill up and the CID came, he then worked as a driver, driving various vehicles for different people, transporting goods between [City 1], [City 2], and at times Colombo, as he could not stay at his home as he was facing problems. He said the CID used to come looking for him as he was suspected of working for the LTTE and he said they stopped looking for him when he was not there, but when he came back to his home area they started coming again and looking for him. He said people told the CID when he came back from [Country 1] and then they started coming to his house and his family told him not to stay at home and he went to [City 1]. He said he was scared and he did not stay at his home and went to [City 1] or [City 2].
The applicant stated that when he was working as a driver during this time he would stay in [City 2] or [City 1], depending on the work. He would return home when there was not much work, perhaps every 10 days or once a month at night. He stated his family would also travel to [City 2] from time to time to see him.
He did this work until a few days prior to his departure from Sri Lanka in 2013. He confirmed he would regularly travel along the [specified] road between [City 2] and Colombo. He confirmed that he would pass through the [named] checkpoint where his ID and the contents of his truck were checked from time to time by the police at the checkpoint. He also confirmed that he had obtained his new ID card from the local Grama Sevaka and had travelled to Colombo in 2012 to obtain a new passport. He stated when he travelled to [Country 1] in 2012, he had no problems at Colombo airport either at departure or on arrival.
When he departed Sri Lanka in 2013, he stated he left from his home village, travelling to [City 1] and then Colombo by public bus.
The applicant was asked if he was ever questioned by the CID after his release from the IDP camp. He stated he was not.
As to any difficulties his wife and [number] children have faced, he said after he left for Australia the CID came looking for him on 2 or 3 occasions and then they knew he had travelled to Australia. He confirmed he received a phone call from the CID in Australia but he said he did not answer. When asked how he knew it was the CID he said the CID went and asked his friend for the number as they wanted to talk to him. He said then his friend told his family this and his family asked him if anyone had called and he said he told them that someone had but he did not answer. He said that only happened once and after that he changed his SIM and number.
At the Tribunal hearing held on 9 August 2023 the applicant reiterated his claim to fear return as a result of his paid work with the LTTE, particularly his involvement in burying weapons. He added he also dug up the weapons for the LTTE when requested. He said he worked for the LTTE from 2004 to 2009 and confirmed it was for a total of 5 years. He said he also feared return as they would also find out he did not tell the truth that he buried weapons for the LTTE. He confirmed he fears return to Sri Lanka as he buried weapons for the LTTE. He said he was paid between 12,000 and 20,000 rupees per month. He referred to driving heavy machinery and a backhoe to dig bunkers so the LTTE could bury the weapons. He said he would not do that every day, but he was building bunkers at the frontline and transporting goods. He said he buried weapons about 10 or 20 times but he was not sure how many times. He said he did this with other drivers as well.

When asked if he was ever a member of the LTTE, he said he was a part-time member. The Tribunal repeatedly questioned this claim and what he meant by it and he said he never fought for the LTTE and was not a full-time member and then referred to the compulsory training he was required to do undertake from 1998 to 2001. He confirmed that everyone in his village had to do this compulsory training run by the LTTE, even his parents. He said and confirmed that after this the only work he did for the LTTE was the paid work driving from 2004 to 2009.
He was asked about his time in the IDP camps and generally gave consistent evidence to that provided at the Department interview as to where he had been. He said in the last camp he was questioned by the CID as to whether he was with the LTTE and he said no. He said before he was released he saw his name was marked red but then a member of his village vouched for him and he was released. He said he told them he was driving vehicles and doing road construction work for the LTTE. He said he did not tell them he was involved in burying weapons.
He said soon after he was released from the IDP camp in September 2010, about 2 to 3 months later, people started returning to his village and he was identified as being with the LTTE and then the CID started looking for him and started coming to his home, so he left. He said he knew they were looking for him as the CID was asking the community in the village how long he had been a member of the LTTE. He said in the beginning they asked his village community about him and when the CID found out he was not in the area as he was driving then the CID went to his house and asked his wife about him. He said about 6 months after he was released from the camp, the CID started coming to his home regularly and asking about him. He said they used to go to his home every 10 days or so, sometimes once a month, and ask for him and his wife would say he was not at home. He confirmed that the CID came to his home asking about him before and after he left for [Country 1].
He gave evidence consistent with the Department interview as to his work as a driver after he was released in September 2010, driving from [City 2] to his home village and Colombo and passing through checkpoints and obtaining his passport from Colombo, as well as entering and exiting the airport to go to and from [Country 1] without difficulty.
He said he departed for [Country 1] in fear due to the CID interest and when asked if he sought assistance at UNHCR [Country 1], he answered in the negative. The Tribunal raised with him his behaviour of returning to Sri Lanka and not seeking assistance from UNHCR in [Country 1] and it raised with him that this may undermine his claim to have departed in fear and faced the difficulties he claims for the reasons he claims.
He said the CID had also come to his home looking for him on several occasions after his departure to Australia. He said the CID asked his wife for his phone number and he said she told them he has no number as they talk via video. The applicant said he then told his wife to give the CID his phone number in Australia but they never called. He said that happened about 4 years ago and that was the first time his wife gave them the number.
He answered in the negative when asked whether there are any other reasons other than his paid work with LTTE as to why he fears return.
He said and confirmed he did not fear return due to his training and involvement with the LTTE prior to 2001 as this was compulsory. He said his parents were also involved in that training, as were all from his village.
The Tribunal raised with the applicant a number of matters via s 424AA including evidence from the entry interview. Credibility issues were raised with the applicant, including inconsistencies in his evidence and where relevant these have been outlined below. The Tribunal questioned whether he was of any interest to the CID or Sri Lankan authorities at the time he departed Sri Lanka and [Country 1] and if he would be of any interest to them on return for the reasons he claims. Further, independent country information was raised with the applicant as regards the treatment of Tamils, returnees who departed illegally and failed asylum seekers and the treatment of those suspected of having links to the LTTE. It raised with him that based on this information it may find he would not face a real chance of serious harm or a real risk of significant harm on return to Sri Lanka.
Is the applicant credible as to his claims?
As to the applicant’s credibility, while the Tribunal has, as detailed below, significant concerns regarding aspects of the applicant’s claims and evidence, particularly those he claims led him to leave Sri Lanka, which the Tribunal does not accept as true, and why he fears return, there are other aspects of his claimed basic circumstances which have remained consistent over time and which the Tribunal is satisfied are true. Specifically, the Tribunal accepts the following:
·The applicant was born on [date] and is from [Village 1], [Division 1], [District 1], Northern Sri Lanka, and lived there prior to the end of the war in or around May 2009 and after his release from an IDP camp in September 2010 for some months. His wife and [number] children continue to live in the same family home in [Village 1].
·He is a Tamil from the North of Sri Lanka.
·His village was under the control of the LTTE since around the time he was born until 2009. Information indicates that [District 1] where the applicant is from was under LTTE control from 1998 through to its capture in 2009, although the Tribunal accepts his village could well have been under the LTTE control before then. During this time, the LTTE governed the area through a parallel administration, with territory protected by LTTE checkpoints.[1]
[1] ‘The Sri Lankan Civil War: A Personal Reminiscence’, Globalecco.org, 1 November 2015, CISEC96CF110242
·In 1989 he began working as a driver in his district and he could not go beyond his district as the LTTE forbade it.
·In 1997 everyone including his family and village attended compulsory training run by the LTTE. As part of this compulsory training, they trained for 10 to 15 days between 6 am to 7 am and were taught how to run, duck down and roll over and they were shown how to handle a gun but used sticks as props. On the last day they were given guns and told to shoot three rounds.
·He never received military training or directly participated in the armed conflict.
·In 1998 the LTTE informed families in the area that it was compulsory for one family member to assist the LTTE. He was chosen and as a result between 1998 and 2001 approximately every six months he stacked logs of wood on either side of bunkers and built a wall to protect the people inside the bunkers in the [District 1] and [City 2] District. He said he worked for 10 to 15 days at a time. In or around 1998 on two or three occasions he was required to carry ammunition and stand as a security guard while the bunkers were being built.
·In or around 2007 or perhaps some time before he commenced working as a heavy vehicle driver for the LTTE with his main duties including excavating sand, soil and earth and transporting it to the bunkers as well as undertaking road construction.
·From 2001 to when he started working for the LTTE in or around 2007 or perhaps some time before, he did nothing for or with the LTTE.
·In May 2009 the SLA destroyed the LTTE and brought the civil war to an end. As a result he stopped being employed with the LTTE.
·As a result on 15 May 2009 the SLA moved people from his village to the refugee camps in [City 1], Northern Province. The Tribunal notes information indicates IDP camps were set up for those fleeing the final stages of the Sri Lankan war in 2009. UNHCR and many other organisations provided basic services in these camps.[2]
[2] [Source redacted]
·Together with his family he was taken to [a named] camp and the CID held a meeting with everyone. The CID advised that everyone who had received compulsory training was to come forward and that they would be forgiven. The applicant did not come forward.
·He and his family were transferred to [a second] camp as [the first] camp filled up. At that camp the applicant began working for a retired SLA official who was overseeing the camp. He was then transferred to [a third] camp for three months just prior to his release in September 2010.
·While in the IDP camps and in the last camp he was personally questioned by the CID about any LTTE involvement and he denied he was involved with the LTTE. He was threatened with prison if he did not disclose his involvement. He advised he was an employed heavy vehicle driver for the LTTE constructing roads.
·He was released in September 2010 and returned to his village.
·He worked as a driver transporting goods in the North of Sri Lanka, sometimes to Colombo.
·He obtained his passport in 2012 by attending the passport office in Colombo.
·He departed Sri Lanka legally through the airport travelling to [Country 1] in May 2012 and returned in September 2012. He faced no problems exiting or entering Sri Lanka via the airport.
·He departed Sri Lanka illegally [in] February 2013 and arrived in [location], Australia, by boat in April 2013.
·On return he will be treated as a failed asylum seeker and a person who departed Sri Lanka illegally in February 2013.
·He was not a full-time member of the LTTE.
Notwithstanding the above, for the reasons outlined below, the Tribunal has significant concerns as to the applicant’s credibility with regard to adverse interest from the CID for the reasons he claims including being associated with the LTTE, particularly after his release from the IDP camp in September 2010, being a part-time member of the LTTE, burying and digging up ammunition and weapons while employed with the LTTE, and his suspected involvement in the LTTE. For the reasons outlined below, it does not accept the applicant has been of any interest to the authorities including the CID since he was released from the IDP camp in September 2010 or at the time of his departure to [Country 1] in 2012 or Australia in 2013 or following his departure for any of the reasons he claims.
Member of the LTTE
At the Tribunal hearing, the applicant claimed he was a part-time member of the LTTE as he worked for them and undertook compulsory training for them from 1998 to 2001. When questioned about the fact that he had consistently previously stated he was not a member of the LTTE at the Department interview and entry interview and had only worked for them, as raised via s 424AA, he said he was not a full-time member but a part-time member as he worked for them, and he referred to his employment with the LTTE and the compulsory training he undertook with them from 1998 to 2001 as to why he was a part-time member. While the Tribunal accepts he undertook compulsory training with the LTTE from 1998 to 2001 and worked for them in road construction prior to the end of the war in 2009, it does not accept he was a part-time member or any type of member of the LTTE. The Tribunal is of the view that if this was the case he would have stated this prior to the Tribunal hearing; rather, he has previously repeatedly answered in the negative when asked if he was a member of the LTTE. The Tribunal therefore does not accept the applicant was ever a part‑time member of the LTTE and is of the view he is exaggerating his level of involvement.
Involvement in digging holes for placing or digging up ammunition, weapons or kerosene for the LTTE while employed by them
For the reasons that follow, the Tribunal does not accept the applicant was ever involved in digging holes for burying or digging up ammunition, weapons or kerosene while employed as a heavy vehicle driver by the LTTE in road construction and building bunkers either from 2007 to 2009 as claimed to the Department or from 2004 to 2009 as claimed at the Tribunal hearing. Despite claiming at the Tribunal hearing that he buried, dug up or dug holes for ammunition and weapons to be placed in them at least 10 or 20 times and it is the main reason why he fears return, there is no mention of this in his statutory declaration declared in 2013. Rather, in his 2013 statutory declaration, he states when referring to this work that his main duties included excavating sand, soil and earth and transporting it for bunkers. The Tribunal is of the view that if the applicant was involved in digging holes for or being involved in burying weapons or ammunition, he would have stated so in his 2013 statutory declaration. When questioned why he had not mentioned this in his 2013 declaration at the Department interview he said he only gave details in general as to his work and did not give specifics. The Tribunal has difficulty accepting this when he claims this is the reason why he is wanted by the CID and departed Sri Lanka in fear. When the concern was raised at the Tribunal hearing he said that is why the CID is looking for him. The Tribunal does not accept these responses and is of the view that if the applicant was in any way involved in digging holes for placing ammunition, kerosene and weapons, or digging them up, he would have referred to it in his 2013 statutory declaration prepared with the assistance of his legal practitioner as noted in the declaration and soon after his arrival in Australia. This is particularly so as he has repeatedly said, particularly at the Tribunal hearing, that it is due to his involvement with weapons and ammunition in the manner he claims as to why he fears the CID, why he departed Sri Lanka and why he fears return to Sri Lanka.
Further, his evidence has evolved over time as to how he was involved in burying ammunition and weapons while working with the LTTE. In his 2017 supplementary statutory declaration he first refers to his role in digging and hiding weapons and kerosene for the LTTE while being employed by them. At the Department interview he said he was told to dig holes and then the LTTE would place crates of weapons in them and then he would cover them up. However, at the Tribunal hearing, he added that he was also involved in digging up the weapons when asked by the LTTE but he did not state this in his previous evidence to the Department at interview or in the 2017 supplementary declaration. The Tribunal is of the view that if he was involved in any manner with ammunition and weapons, he would be consistent as to his role, particularly as he stated he did this on numerous occasions.
Therefore, while the Tribunal accepts prior to the end of the war he was working driving heavy vehicles, including using a backhoe to dig bunkers, roads and trenches as a paid employee of the LTTE, it does not accept that at any time he was involved with burying or digging up ammunition, kerosene or weapons for the LTTE.
CID interest after his departure from the IDP camp in September 2010
The applicant has claimed that he fears return as the CID know or suspect he was involved in burying ammunition, weapons and kerosene for the LTTE while working for them and that he is therefore suspected of being associated with the LTTE. He also referred to being a part‑time member and being compulsorily trained by them from 1998 to 2001, but later in the hearing he said because of his involvement in digging and burying weapons and ammunition for the LTTE he is of interest to the CID.
As to CID interest, he has consistently stated that he was questioned in the IDP camp at least once[3] as to being involved with the LTTE and then released in September 2010, and that some months after his return to his village, he said 2 to 3 months at the Tribunal hearing and 7 to 8 months to the Department, the CID became interested in him. He claims as a result he started working outside his home area as a driver in [City 2], Colombo or elsewhere and would visit his family infrequently to avoid the CID, and after his return from [Country 1] he spent much of his time in hiding. He claims as a result of the CID’s interest and questioning of his family he first departed for [Country 1] in fear in 2012 and then departed for Australia in 2013. He claims after he departed for Australia, they continued to be interested in him. However, for the reasons that follow, the Tribunal does not accept the applicant is a credible witness as to the CID ever being interested in him or questioning his friends and family about him after he left the IDP camp before or after he departed for Australia and that is why he departed for [Country 1] and Australia.
[3] At hearing he said he was only questioned once by the LTTE at the last camp although his statutory declaration refers to him being questioned twice. Not withstanding the Tribunal accepts he was questioned by the CID for LTTE connection on at least 1 or 2 occasions while in the IDP camps.
Specifically, he has provided the following inconsistent evidence about how and when the CID was interested in him prior to his departure for [Country 1] in 2012 and Australia in 2013:
·As raised with him via s 424AA at the entry interview he stated that he left for [Country 1] as the CID questioned him as he worked for the LTTE as a driver digging and transporting soil. However, in contrast in his 2013 statutory declaration he did not refer to being personally questioned after his release, and at the Department interview and at the Tribunal hearing he said he had never been personally questioned by the CID after his release from the IDP camp in September 2010. On its own, the Tribunal does not view this to be solely determinative as the applicant may have been referring to being questioned in the IDP camp in 2010, although it views this as unlikely as he departed for Australia in 2013 and was released following questioning in the IDP camp.
·In his 2013 statutory declaration as to interest from the CID, he claims that about 7 or 8 months after his arrival in his village his name was being asked for by the CID which led him to work in [City 2] to avoid the CID and to infrequently visit his home. He claims as the CID became more persistent, he fled to [Country 1] as he was fearful the CID was going to seriously harm him. He said after his return, his friends told him that the CID became more persistent and warned him to be careful as they were questioning about him and he refers to another driver being picked up by the CID. There is no mention of the CID ever coming to his home to look for him.
·In his supplementary declaration of 2017, he did not add that the CID was interested in him prior to his departure for [Country 1] and Australia, except to say that due to the warning he received as described in his 2013 statutory declaration he spent much of the time in hiding due to his fear of the CID and need to avoid them.
·At the Department interview, he claimed that he was never questioned personally, but for the first time he said that the CID would come to his home asking about him but he had gone to a different place in [City 1] or [City 2].
·At the Tribunal hearing, when asked in detail how he knew the CID was interested in him, he said the CID repeatedly came to his home asking his wife about him. He said after he was released from the camp in September 2010, a couple of months later the CID began asking the community about his driving work, and then about 6 months after he was released from the camp and before he departed for [Country 1], they came to his home asking his wife as to his whereabouts. When asked how many times they came to his home, he said they used to go to his home every 10 days or so, sometimes once a month, and his wife would tell them he was in Colombo or [City 2]. He confirmed this happened both before he went to [Country 1] and Australia.

When the Department raised the inconsistency at interview that he had not mentioned previously the CID coming to his home, including in his supplementary declaration, he said he had told them they went to his house and looked for him. Due to its significance, the Tribunal has difficulty accepting that this would be omitted and that he told them the CID came to his house, particularly as at that time he was assisted by a legal practitioner. It also questions why he did not amend this in his 2017 supplementary declaration if it was mistakenly omitted. The Tribunal also raised with him at hearing the inconsistency in his evidence as to the CID coming to his home prior to his departure to [Country 1] and then Australia, and he responded that he said he is telling the truth and the CID is looking for him. The Tribunal does not accept this response explains the inconsistency and is of the view that if the applicant was being sought after by the CID, he would be consistent as to whether he was personally questioned following his release from the IDP camp, and whether the CID came to his home. This is particularly so as the evidence of the applicant at hearing was that they repeatedly came to his home asking his wife about him.
Further, undermining of his claim that he fled in fear of the CID in 2012 to [Country 1] is the fact that despite travelling to [Country 1] in 2012 and overstaying his visa, his evidence is that he did not seek help or protection from UNHCR there. As raised with the applicant, independent information indicates asylum in [Country 1] can be sought via the UNHCR [Country 1] office.[4] When raised with the applicant, he said he could not work and support his family. The Tribunal has difficulty accepting he would return to Sri Lanka for this reason if his life was in danger, as he claims, and the CID was repeatedly coming to his home. The Tribunal views as undermining his claims that he fled in fear, that he did not seek protection in [Country 1], and, rather, returned to Sri Lanka, where he claims he fled in fear.
[4] [Source redacted]
Also, the Tribunal views his behaviour of returning to Sri Lanka in 2012 from [Country 1] as undermining of his claim that he fled in fear from the CID, and they were repeatedly coming to his home as claimed. The Tribunal is of the view that if the applicant was at risk, as he claims, he would not have returned to Sri Lanka for any of the reasons he claims. His return to Sri Lanka undermines his claim that he faced the difficulties he claims, to be in fear of the CID, or anyone else, for the reasons he claims.
Further, he has provided the following inconsistent evidence as to the CID interest in him after he departed for Australia which further undermines his claim that he was of interest to the CID, for the reasons he claims:
·In his 2017 supplementary declaration, he claims the CID visited his family home about 4 to 5 months after his arrival in Australia and that is why he did not mention it in his earlier statement. He claims his family knew they were CID officers and they asked how he got to Australia and where he had hidden the weapons. He claims his mother was interrogated and was forced to give his Australian mobile number and that he received some missed calls from Sri Lanka which he refused to answer as he was fearful it was the CID.
·However, in contrast at the Department interview, when asked about the phone call and how he knew it was the CID calling, he said the CID went and asked a friend for his number as they wanted to talk to him (the applicant). He said his friend told his family and his family asked if anyone called him and he told them he did not pick up the call. He said after that he changed his SIM.
·In further contrast, at the Tribunal hearing, he said the CID had been to his home on several occasions since he departed for Australia and they asked for the applicant’s phone number but his wife initially said they talk via video link and she had no number. He said later she gave the CID the applicant’s number but they did not call him and that was about 4 years ago. He confirmed that 4 years ago was the first time the CID was given his phone number in Australia.
When the Tribunal raised the inconsistencies in his evidence, he said he could not remember exactly but he knows the CID is looking for him. The Tribunal does not accept this response explains the inconsistencies above and is of the view that if the CID contacted his family after he departed for Australia and tried to call him in Australia, he would provide consistent evidence as to this.
For the reasons above, the Tribunal does not accept that the applicant is a credible witness as to ever being of interest to the CID following release from the IDP camp in 2010 due to any real or perceived connection to the LTTE as he was employed by them, undertook compulsory training with them from 1998 to 2001, or on account of his claim he was involved in digging up weapons and ammunition. It therefore does not accept after he returned to his village, they questioned his family, friends or his community about him and his whereabouts for the reasons he claims. It follows it does not accept that he fled his home to work in [City 2] or elsewhere in Colombo, fled to [Country 1] in fear in 2012, was in hiding on return from [Country 1], ever avoided being at his home or village for fear of the CID and fled to Australia in 2013 because of a fear of the CID for the reasons he claims. It follows it does not accept that after he departed Australia the applicant continued to be of interest to the CID which was continuing to ask about him in his village, through his community, friends or family, and that they tried to call him in Australia.
Does the applicant meet the refugee protection and complementary provisions of the Act?
Living in an IDP camp from approximately May 2009 to September 2010 and living under an LTTE regime
The Tribunal accepts that the area in which the applicant and his family lived was under the administrative control of the LTTE for most of his life and until the war ended in May 2009. It also accepts that together with his family the applicant lived in IDP camps from the end of the war in or around May 2009 to September 2010.
As to whether the applicant would face any difficulties as a result of living in an IDP camp at the end of the war, there is no evidence from the applicant that merely residing in an IDP camp at the end of the war would raise any issues on return to Sri Lanka, nor would merely living under the administrative control of the LTTE prior to the end of the war. Further, his family, who also accompanied him to the IDP camp and lived with him in his home area before the end of the war under the control of the LTTE, he claims have faced no difficulties on account of these circumstances; rather, he refers to them being questioned about him because of his work with the LTTE burying weapons. Further, information indicates that spending time in IDP camps, or living under an LTTE regime, or as an IDP, are not causes for detention.[5] UNHCR states in its 2012 Guidelines that originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection.[6]
[5] UK Home Office 2012, Sri Lanka Bulletin: Treatment of Returns, 1 December, Section 3.14
[6] UNHCR 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December, pp.26. DFAT, DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014.
Therefore, for all the above reasons, the Tribunal does not accept that were the applicant to return to Sri Lanka in the reasonably foreseeable future, he will face a real chance of persecution involving serious harm solely because he lived in an LTTE controlled area and/or in an IDP camp at the end of the war.
Based on the applicant’s evidence and country information above the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm because he lived in an LTTE controlled area and/or in an IDP camp at the end of the war.
Tamils from the North
The Tribunal accepts due to his appearance and consistent evidence that the applicant is a Tamil male from the North of Sri Lanka. He claims to fear harm if he returns to Sri Lanka as a result of his Tamil race and as he is from the North of Sri Lanka, including being perceived or imputed to be associated with the LTTE solely on the basis of his ethnicity and where he is from in Sri Lanka.
The Tribunal accepts that at least up to the time of the end of the civil war in May 2009 and soon after, Sri Lankan citizens who were Tamils in the North were at an appreciable risk of persecutory harm at the hands of the authorities simply because of their Tamil ethnicity. However, information before the Tribunal indicates that, after the defeat of the LTTE in 2009 and the end of the fighting, the security situation in Sri Lanka changed and the risks posed to Sri Lankan citizens on the basis only of their Tamil ethnicity have been substantially reduced. This view is adopted in the UNHCR ‘Eligibility Guidelines’ in 2010 which, in contrast to the 2009 version of the document, no longer refers to a presumption of eligibility for protection for Sri Lankans simply on the grounds that they are Tamils originating from the North of the country and suspected of being with the LTTE. UNHCR states in its 2012 Guidelines that originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection.[7]
[7] UNHCR 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum‑Seekers from Sri Lanka, 21 December, pp.26. DFAT, DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014.
Recent information indicates Tamils comprise most of the population in the Northern Province and Tamil political parties are active in Sri Lanka.[8] DFAT in its most recent report assesses that Tamils in Sri Lanka face a low risk of official or societal discrimination based on their ethnicity or caste.[9] DFAT assesses that ordinary Tamils living in the North and East of Sri Lanka are at low risk of official harassment.[10] While support for the LTTE used to be widely imputed based on ethnicity, as noted above, information indicates this is no longer the case.[11] When the information was raised, the applicant said Tamils are discriminated against.
[8] DFAT report 3.4
[9] DFAT Report 3,1-3.3
[10] DFAT Report 3.13
[11] DFAT Report 3.8
While the Tribunal acknowledges that Tamils continue to face some discrimination, on the basis of the information, the Tribunal is not satisfied that being a Tamil, a Tamil male or a Tamil from the North means that the applicant would face harm amounting to serious or significant harm on account of his ethnicity, where he is from, or that he would be suspected of being associated with the LTTE on the basis of his Tamil ethnicity and where he is from in Sri Lanka.
Therefore, for all the above reasons, the Tribunal does not accept that were the applicant to return to Sri Lanka in the reasonably foreseeable future, he will face a real chance of persecution involving serious harm solely because he is of Tamil race or a Tamil from the North or a Tamil male. Further, it does not accept he faces a real chance of persecution involving serious harm were he to return to Sri Lanka in the reasonably foreseeable future because of any imputed political opinion as an LTTE supporter on account of his Tamil ethnicity, as he is a Tamil male or as he is a Tamil from the North.
Based on its findings of fact and country information above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm because he is of Tamil race or a Tamil from the North or a Tamil male. Further, it does not accept that there is a real risk that he will suffer significant harm were he to return to Sri Lanka because of any imputed political opinion as an LTTE supporter on account of his Tamil ethnicity or as he is a Tamil from the North or a Tamil male.
Association with the LTTE
The Tribunal has considered his claims he will be targeted on return due to an actual and/or imputed association with the LTTE. The Tribunal has accepted he undertook compulsory training with the LTTE from 1998 to 2001 as his area was under the administrative control of the LTTE, and it has accepted he was employed by the LTTE as a heavy vehicle driver constructing roads, digging bunkers, and also using a backhoe. It has accepted his claims he was questioned by the CID while in the IDP camp on one or two occasions, threatened and questioned as to LTTE connections but ultimately released into the community in September 2010.
It has not accepted he was ever involved in digging holes to bury weapons, ammunition or kerosene, or operating machinery to cover them or take them out of holes while employed as a heavy vehicle driver with the LTTE. It has also not accepted that due to this work and his compulsory training he was a part-time member of the LTTE. It has also not accepted following his release from the IDP camp in September 2010 he was of interest to the CID in the manner claimed both before and after his departure from Sri Lanka to Australia.
Information indicates that in 2009 and afterwards if the authorities had continued to suspect him of involvement in the LTTE he would not have been released and would have continued to be questioned.[12] The information indicates that those perceived of being with the LTTE, even if low‑profile members, were detained and arrested and sent to rehabilitation camps. The information indicates that those perceived of being LTTE members and actual members were detained and systematically abused by the Sri Lankan Government in the aftermath of the war, which ended in May 2009. The information indicates that the Tamils suspected of links to the LTTE were arrested and detained under the Prevention of Terrorism Act (PTA) which permits extended administrative detention, and shifts the burden of proof onto a detainee alleging torture or other ill-treatment.[13] The Human Rights Watch (HRW) annual report 2016, Sri Lanka, observed that: ‘The PTA has long been used to hold suspected LTTE members and others without charge or trial for years’.[14] As raised with the applicant, on the basis of the information before it, the Tribunal is of the view that a person who continued to be suspected of such links with the LTTE would not have been released from the IDP camp as the applicant was. The Tribunal finds on the basis of his release following questioning from the IDP camp in September 2010 and having found he was of no interest to the CID since his release that since September 2010 he has never been considered by the Sri Lankan authorities including the CID to be a person of concern due to any real or perceived connection to the LTTE. In this regard, the applicant noted he told them about his work with the LTTE.
[12] UNHCR 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December, pp.26; DFAT, DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014
[13] Amnesty International Report 2015/16 - The State of the World's Human Rights - Sri Lanka, published 24 February 2016, (Arbitrary arrests and detentions), date accessed 5 April 2016
[14] The Human Rights Watch (HRW), annual report 2016, Sri Lanka, 27 January 2016, (Prevention of Terrorism Act and Politically Motivated Torture, – p. 530), date accessed 5 April 2016
According to the current DFAT Report, the Government is sensitive to the potential re‑emergence of the LTTE and former LTTE members may be monitored. It describes that ‘low‑profile’ former LTTE members include former combatants, those employed in administrative or other roles, and those who may have provided a high level of non‑military support to the LTTE during the war. It notes that low-profile LTTE members who come to the attention of the Sri Lankan authorities – particularly if they are suspected of having a combat role during the war – would likely be detained for questioning and may be sent for rehabilitation. The number of high-profile former LTTE members living in Sri Lanka is assessed to be small and the majority have already come to the attention of authorities. Any remaining high-profile former LTTE members who came to the attention of the authorities would likely be arrested, detained and prosecuted, and, once they had completed their sentences, would likely be subjected to some form of rehabilitation and continued monitoring.
DFAT in its current report also assesses Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their security risk profile. DFAT assesses that the following Tamils would be of particular interest to the authorities: those who hold leadership positions in Tamil diaspora groups, particularly groups deemed by the Sri Lankan Government to hold radical views; those who were formerly part of the LTTE, particularly in – but not necessarily limited to – high-profile roles; those who are suspected of raising funds for the LTTE during the war; and those who actively advocate for Tamil statehood. Those Tamils living abroad with links to the LTTE are unlikely to return to Sri Lanka voluntarily.
As to whether the applicant would face any difficulties on return to Sri Lanka as a result of undertaking compulsory training with the LTTE from 1997 to 2001, at hearing the applicant indicated that he would not face any difficulties as it was compulsory. He said he fears return due to his work with the LTTE.
When the Tribunal raised the above DFAT country information as to the profile of LTTE members being at risk on return, he questioned why people are detained.
As the Tribunal has rejected that he was of any interest to the CID following his release in September 2010 and has not been since, even after telling them of his work driving heavy machinery for the LTTE, and that he was never involved in burying or digging up weapons or ammunition, there is no evidence of activism in Australia for the LTTE or Tamil separatism, and based on the country information above the Tribunal is of the view that he does not fit the risk profile of the Tamil groups identified by DFAT as likely to be of adverse interest to the Sri Lankan authorities. It therefore follows it does not accept he will be of any interest to the CID, the SLA, police or Sri Lankan authorities for any of the reasons he claims, including on account of his work for the LTTE from 2004 to 2009 or 2007 to 2009 as a heavy vehicle driver constructing roads or due to any compulsory training he undertook between 1998 and 2001. It follows it does not accept he will be detained, tortured or face any difficulties amounting to serious harm on account of any actual or perceived association with the LTTE.
Therefore, for all the above reasons, the Tribunal does not accept that were the applicant to return to Sri Lanka in the reasonably foreseeable future, he will face a real chance of persecution involving serious harm because of any perceived or imputed association with the LTTE accepted by the Tribunal, including as an employed heavy vehicle driver constructing roads and bunkers for the LTTE including using a backhoe, undertaking compulsory training with the LTTE from 1998 to 2001 in the manner claimed, and as he was questioned in the camp in 2010 by the CID as to LTTE involvement and his employment.

Based on its findings of fact and country information above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm on account of any perceived or imputed association with the LTTE accepted by the Tribunal, including as an employed heavy vehicle driver constructing roads and bunkers for the LTTE including using a backhoe, undertaking compulsory training with the LTTE from 1998 to 2001 in the manner claimed, and as he was questioned in the camp in 2010 by the CID as to LTTE involvement and his employment.
Failed asylum seeker
The Tribunal accepts that the applicant may be considered as a failed asylum seeker on return to Sri Lanka.
In relation to unsuccessful asylum seekers who return to Sri Lanka, as discussed with the applicant in the hearing, the DFAT Report states as follows:
Exit and Entry Procedures
5.17 Unsuccessful asylum seekers, both those subject to removal or departing voluntarily, are returned to Sri Lanka either using commercial or charter flights. In some cases, they may be accompanied by security escorts. On arrival in Colombo, returnees will be presented to Sri Lankan Immigration where they will be interviewed by the Chief Immigration Officer. Depending on the circumstances of their departure from Sri Lanka and their personal history, they may be interviewed by other agencies including CID, Sri Lankan State Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI). These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Those who have departed illegally will be referred to CID at the airport and charged accordingly. Once charged they are taken to the courts at Negombo where they are bailed and released.
5.18 DFAT is not aware of returnees in 2021 being detained for matters other than illegal departure (such as, for former membership of the LTTE). However, due to COVID-19, returnees have been returned to Sri Lanka in smaller numbers overall than in previous years. According to the IOM, in 2021 up to September, there had been 107 returnees, 19 of these from Australia. Local sources also report that Tamils overseas are much less likely to return voluntarily to Sri Lanka under the current Government.
5.19 The IOM meets Australian-assisted voluntary returnees (i.e. not deportees) after immigration clearance at the airport and provides some cash and onward transportation assistance, along with legal assistance provided by the Sri Lankan Legal Aid Commission for those charged with illegal departure. Prior to departure from Australia, Australian Border Force provides removed returnees with cash to assist their return.
5.20 For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.
Based on the DFAT Report, the Tribunal accepts that on return to Sri Lanka, the applicant would be subject to an interview and have his identity confirmed, although he has a copy of his passport, albeit expired.
DFAT[15] states that for returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. The Tribunal notes the applicant has a copy of his expired passport but accepts he would likely need to travel on a temporary travel document. This would identify someone trying to conceal a criminal or terrorist background or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. All returnees are subject to these standard procedures, regardless of ethnicity and religion. DFAT understands detainees are not subject to mistreatment during processing at the airport.
[15] DFAT Country Information Report Sri Lanka November 2019
Based on the evidence before it, the Tribunal finds that the applicant does not have a criminal or terrorist background, is not subject to outstanding court orders, arrest warrants or criminal matters, and the country information indicates he would not be detained or mistreated during processing at the airport or on return to his home village.
The Tribunal does not accept that being questioned at the airport and having his identity confirmed reaches the level of serious harm as detailed in s 5J or significant harm as outlined in s 5(1) and s 36(2A).
Further, as the Tribunal has found above, he has not been of any interest to the CID or the Sri Lankan authorities since being released from the IDP camp in September 2010 and does not fit the risk profile of those of concern to the authorities with regard to any association with the LTTE that the Tribunal has accepted as true, therefore, having considered all the evidence before it, including the country information and the applicant’s written submissions, the Tribunal finds that the applicant would not face a real chance of serious harm as a failed asylum seeker if he returns to Sri Lanka in the foreseeable future, including on a travel document.
Based on its findings of fact and country information above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as a failed asylum seeker, including one who returns on a travel document.
Illegal departure
The Tribunal accepts that the applicant departed Sri Lanka by boat illegally or unlawfully in February 2013. It accepts that according to country information, when a returnee is questioned at the airport and where illegal departure is suspected, police at the airport make an arrest and at the earliest opportunity take the detained to the closest Magistrates’ Court.
The Tribunal accepts returnees who departed Sri Lanka irregularly are considered to have committed an offence under the Immigrants and Emigrants Act (I&E Act). The Tribunal observes that ss 34 and 35(a) of the I&E Act make it an offence to depart Sri Lanka other than via an approved port of departure and/or without a valid passport. DFAT reports that penalties for leaving Sri Lanka illegally can include imprisonment of up to 5 years and a fine, though DFAT was unaware of a prison sentence being given for illegal departure by itself. Facilitators or organisers of people smuggling ventures, including captains and their crew, are charged with more serious offences and typically refused bail.[16]
[16] DFAT Country Information Report Sri Lanka 23 December 2021
DFAT noted that while those convicted of the offence of illegal departure may theoretically face a custodial sentence, in practice, local sources suggest, a fine is always imposed and typically this fine is LKR50,000–200,000 (AUD350–1,400).[17] DFAT noted that sources suggest those who are unable to pay the fine are permitted to pay in instalments but, if still unable, may be imprisoned for 14 days.[18] The Tribunal notes the applicant is working in Australia for some time and the Tribunal raised with him he m that he would be able to pay the fine.
[17] DFAT Country Information Report Sri Lanka 23 December 2021 at para 5.23.
[18] DFAT Country Information Report Sri Lanka 23 December 2021 at para 5.23.
With regard to prison conditions DFAT[19] reports that:
5.10 In general, prison conditions in Sri Lanka do not meet international standards, including due to old infrastructure, overcrowding, and a shortage of adequate health and sanitary facilities. The HRCSL in its study of prisons in 2020 found that the ‘treatment and detention conditions of prisoners fall far below the threshold of basic living standards’. The US Department of State reported in 2018 that only some of the larger prisons had hospitals, and that prisoners requiring medical care in smaller prisons were typically transferred to the nearest local hospital. Some facilities reportedly do not segregate juveniles and adults, or remand and convicted detainees. In many prisons, inmates reportedly slept on concrete floors, and prisons often lacked natural light or sufficient ventilation.
5.11 Overcrowding in Sri Lankan prisons is a major issue. According to official statistics, in 2020, the number of prisoners (approximately 90,000 prisoners on remand and 19,900 convicted detainees) DFAT Country Information Report Sri Lanka (December 2021) 46 exceeded prison capacity by nearly 64 per cent. Over half of the prison population is estimated to be awaiting trial. Remand detention typically lasts years and is considered as part of the final sentence at the discretion of judges. According to the HRCSL, the overcrowding of prisons is also impacted by the large number of convicted prisoners imprisoned due to the inability to pay fines and the non-payment of debt and maintenance payments.
5.12 The International Committee of the Red Cross (ICRC) has the right to access to all places of detention and all categories of detainees in Sri Lanka, including those held under the PTA and those undergoing rehabilitation for drug-related offences. The ICRC receives notification of arrest but, given resource constraints, can take some time to visit detainees to assess their welfare. The HRCSL also has the right to access a number of places of detention without restrictions from the authorities, including for unannounced visits. The Government continued to allow the ICRC and the HRCSL full access to prisons in 2020. In addition to the ICRC and the HRCSL, the Board of Prison Visitors, an internal governmental watchdog, examines detention conditions. The Board conducts regular visits to prisoners and accepts complaints as a part of its mandate.
[19] DFAT Country Information Report Sri Lanka 23 December 2021
The Tribunal has accepted that the applicant departed the country illegally. Doing so is an offence under the I&E Act of Sri Lanka. The Tribunal accepts that there is a possibility the applicant will be held for a limited period in remand whilst awaiting bail, in conditions that can be poor due to overcrowding and unsanitary conditions. The information before the Tribunal indicates that the most likely penalty for such a breach is a fine, unless a person is considered to be an organiser of irregular migration of people from Sri Lanka. There is no evidence the applicant was involved in people smuggling or will be so suspected.
The evidence does not establish that the applicant will be singled out or treated any differently because he left Sri Lanka illegally and considers that questioning at the airport, being placed in remand for a short period and charged then fined is not because he is a Tamil, but because he left Sri Lanka illegally. The Tribunal is not satisfied that the applicant will be imputed with a political opinion because he has left illegally or singled out or treated differently because he is a member of a particular social group, however defined, including a particular social group of failed asylum seekers or any other particular social group. The Tribunal is not satisfied that any problems the applicant may face as a result of questioning, charges, spending a short period in remand awaiting bail or being fined or questioned on return to his home area are aimed at the applicant for any of the reasons outlined in s 5J(1)(a) but are factors which apply to the general population.
Having considered the relevant country information, the Tribunal is satisfied that Sri Lanka’s I&E Act is a law of general application which is appropriate and adapted to meet a legitimate national interest in regulating the movement of persons across the country’s borders. On the basis of that, the Tribunal is satisfied that the sections of the Act which provide penalties, including fines and imprisonment for the offence of leaving Sri Lanka other than through an official port, and which involve suspects being arrested and possibly held in remand awaiting a bail hearing, are not enforced selectively or in an arbitrary or discriminatory way on the basis of a reason outlined in s 5J(1)(a) or any other reason, but are instead applied to all Sri Lankans, regardless of their race or other personal circumstances.
The Tribunal is also not satisfied that the treatment faced by Tamil returnees who departed illegally amounts to serious harm or would give rise to a real chance of serious harm in the reasonably foreseeable future. This includes processing at the airport, questioning, being held on remand for a few days awaiting a bail hearing, if required, being fined and being questioned on return to his home area. With regards to his loss of liberty while on remand and being fined because it arises through the operation of a law of general application, the Tribunal finds that it does not amount to persecution as defined in the Act. With regards to the period of time in which he is on remand, although the conditions of the remand cell he might be kept in would cause him to suffer discomfort and irritation, on the evidence and information before it, the Tribunal does not accept that, in his particular circumstances and with his attributes, there is a real chance he would suffer serious harm for any reason, based on the non-exhaustive types of harm set out in s 5J(5).
Having considered the information before it, the Tribunal is not satisfied that the treatment faced by Sri Lankan Tamil returnees who have departed Sri Lanka unlawfully or illegally, either at the airport on arrival, on remand awaiting a bail hearing or when they are later dealt with by the courts, including being fined, or the treatment they will face on return to their home village, amounts to persecution involving serious harm or gives rise to a real chance of such harm in the reasonably foreseeable future, even when assessed cumulatively with what is accepted of the applicant’s personal profile and circumstances in Sri Lanka.
Therefore, on the basis of the evidence before me, the Tribunal is satisfied that the applicant does not now or in the reasonably foreseeable future have a well-founded fear of persecution arising essentially and significantly for one or more of the reasons outlined in s 5J(1)(a) if he returns to Sri Lanka on the basis of his illegal departure or being perceived as being associated with the LTTE or opposed to the Government because of his illegal departure.
With regard to complementary protection, the Tribunal accepts that the applicant will be viewed by the Sri Lankan authorities to be a person who departed Sri Lanka illegally (to Australia by boat and without a passport), and the Tribunal is satisfied that he will be questioned by the Sri Lankan authorities at the airport. For the stated reasons, the Tribunal is not satisfied that he has any adverse profile in Sri Lanka which will be revealed throughout the process or in connection with that process, or that he has a profile that would mean that he would be closely scrutinised or ill-treated. The Tribunal accepts that the applicant may be in prison for a few days in conditions which are cramped, uncomfortable and unpleasant, and he may have to pay a fine. Country information indicates that the prospect of the applicant being detained for a prolonged period of time is remote and not likely to result in hardship to the applicant that constitutes significant harm as contemplated by s 36(2A) of the Act.
On the evidence, the Tribunal is not satisfied that there is credible and consistent reporting of returnees being arbitrarily deprived of their life or the death penalty being carried out on them, or of being subjected to mistreatment, including intentional mistreatment involving torture or cruel or inhuman treatment or punishment, or the extreme humiliation required for an act or omission to be degrading treatment or punishment amounting to significant harm as contemplated by s 36(2A) of the Act.
While the Tribunal accepts, on the basis of the country information available to it, that the applicant may be remanded in conditions which are cramped and uncomfortable, the Tribunal does not accept that spending time in such conditions amounts to ‘significant harm’ as defined in s 36(2A) of the Act or that such treatment is intentional as is required in the definitions of cruel or inhuman treatment or punishment and degrading treatment or punishment. On the evidence before it, the Tribunal is satisfied that the conditions have not arisen due to demonstrable intent on the part of the Sri Lankan authorities to inflict severe pain or suffering. Accordingly, the Tribunal does not accept that there is a real risk that the applicant will be subjected to ‘torture’.
The definition of ‘cruel or inhuman treatment or punishment’ in s 5(1) of the Act requires that pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation. Mere negligence or indifference is not sufficient; what is required is an intention to inflict pain or suffering or to cause extreme humiliation. The Tribunal does not accept on the evidence before it that the pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is ‘intentionally inflicted’ on prisoners as required by the definition of ‘cruel or inhuman treatment or punishment’ in s 5(1) of the Act, nor does the Tribunal accept that the overcrowding and other problems are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment’.
In essence, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as a consequence of the poor conditions in prisons due to overcrowding during any period which he may spend in gaol. The Tribunal finds that there is not a real risk that the applicant will suffer significant harm for any other reason or reasons.
On balance, on the information before it, the Tribunal is not satisfied that the applicant’s profile, being a person who has left Sri Lanka illegally, even when considered cumulatively with what is accepted of the applicant’s claimed risk profile and the independent sources, involves or creates a real risk of treatment amounting to significant harm as contemplated by s 36(2A) of the Act. Accordingly, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.
Summary
The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would create a real chance of him being subjected to serious harm in Sri Lanka in the reasonably foreseeable future. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if he returns in the reasonably foreseeable future. The Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would create a real risk of him being subjected to significant harm on return to Sri Lanka. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as defined in s 36(2A).
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
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).
There is no suggestion that the applicant satisfies s 36(2) of the Act 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 criteria in s 36(2).
DECISION

102. The Tribunal affirms the decision not to grant the applicant a protection visa.
Gabrielle Cullen

Member

ATTACHMENT - CRITERIA FOR A PROTECTION VISA
A Safe Haven Enterprise visa is a class of temporary protection visa, the purpose of which is
to provide protection and to encourage enterprise through earning and learning while strengthening regional Australia: ss 35A(3A) and (3B).
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 3985

18 August 2023

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

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