1804020 (Refugee)

[2020] AATA 2963

1804020 (Refugee) [2020] AATA 2963 (30 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1804020

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Deputy President Jan Redfern

DATE:30 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 30 June 2020 at 4:35 PM

CATCHWORDS

REFUGEE – Protection (Class XA) (Subclass 866) visa – Sri Lanka – application for protection – applicant claims to fear persecution for reasons of Tamil ethnicity – Christian perceived to be Muslim – imputed political opinion and links with the Liberation Tigers of Tamil Eelam – young Tamil male – failed asylum seeker – consideration of refugee criterion in s 36(2)(a) of the Migration Act 1958 – applicant found not to have a well-founded fear of persecution – consideration of complementary protection criteria in s 36(2)(aa) of the Migration Act 1958 – no substantial grounds for believing that as a necessary and foreseeable consequence of removal to Sri Lanka there is a real risk the applicant will suffer significant harm – applicant found to not be a person in respect of whom Australia has protection obligations under s 36 of the Migration Act 1958 (Cth) – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 36(2)(a), (aa), (2A), (2B), 65, 91R, 91R(1)(a), (b), (c), (2), 91S

Migration Regulations 1994 (Cth), Schedule 2

CASES

Applicant A v Minister for Immigration and Ethnic Affairs (1996-97) 190 CLR 225

BTD16 v Minister for Immigration and Border Protection [2018] FCCA 185
Chan Yee Kin and Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34

SZTGM v Minister for Immigration and Border Protection [2017] HCA 34

SECONDARY MATERIALS

Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)

Department of Home Affairs, Country of Origin Information Services Section, “Situational Update: Sri Lanka – Elections”, 29 November 2019
Department of Home Affairs, Procedural Advice Manual 3 (PAM3) ‘Refugee and Humanitarian - Complementary Protection Guidelines’
Department of Home Affairs, Procedural Advice Manual 3 (PAM3) ‘Refugee and Humanitarian - Refugee Law Guidelines’
Department of Foreign Affairs and Trade Country Information Report on Sri Lanka, 4 November 2019
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84 –
Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967).
UK Home Office, Report of a Home Office fact-finding mission to Sri Lanka, 20 January 2020
United Nation High Commissioner for Refugees, Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka, 21 December 2012

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 10 January 2014 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (‘the Act’).

2. The applicant sought merits review of this decision and on 29 June 2016, the Tribunal affirmed the decision of the delegate to refuse the visa. [In] January 2018, the Federal Circuit Court (‘FCCA’) remitted the matter to the Tribunal for reconsideration as it was found the applicant had been denied procedural fairness in the circumstances of the case.[1]

   [1] [Deleted].

3. The matter was constituted to a different member in February 2019 and the matter was scheduled for hearings in May and June 2019.

4. On 21 April 2019 there were number of bombings in Sri Lanka which targeted prominent hotels and churches in Colombo, Negombo and Batticaloa. The bombings were believed to have been carried out by Muslim terrorists and became known as the ‘Easter bombings’. These events led to a period of uncertainty and volatility in Sri Lanka and the review was delayed pending further evidence and submissions about the impact of this on the applicant’s claims. In November 2019 there were presidential elections in Sri Lanka and there was a change of government. At the request of the Tribunal, the applicant provided further submissions about the impact of the presidential elections on his claims.

5. In summary, the applicant claims Australia has protection obligations to him on the basis of his Tamil ethnicity, his imputed political opinion as a supporter or perceived supporter of the Liberation Tigers of Tamil Eelam (LTTE) and on the grounds that he falls within a particular social group of people that will be targeted upon his return for being a failed asylum seeker who left Sri Lanka illegally, a failed asylum seeker returning from a Western country and a young Tamil male who is a failed asylum seeker returning from a Western country. These matters are said to individually and cumulatively engage Australia’s protection obligations. The applicant claims that he will face a real chance of serious or significant harm if he were to return to Sri Lanka by reason of these matters.

6. Following the Easter bombings and evidence given by the applicant at the first hearing, the applicant’s representative raised an additional claim that even though the applicant was a Christian, he may be perceived to be a Muslim, in brief, because most Muslims speak Tamil, and there was evidence that Muslims were being persecuted in Sri Lanka following the bombings. In the alternative, it was submitted that the applicant would face a real risk of serious harm because he was a member of a particular social group of Christians living in Sri Lanka. It was also submitted that because of the changed conditions in Sri Lanka following the presidential elections, the applicant would be more likely to be targeted on his return.

7. I have concluded that the decision under review should be affirmed. In essence, while I accept many of the applicant’s claims about what he said happened to him in Sri Lanka and I accept that he has a fear of returning to Sri Lanka and believes he will face a discrimination and what he believes to be persecution on his return, I am not satisfied that the fears he has are well-founded or that there is a real risk he will suffer serious or significant harm for the purposes of engaging Australia’s obligation to provide protection. In brief, I am not satisfied that the applicant has a profile that will expose him to being targeted by authorities on his return. My reasons follow.

RELEVANT LAW

General principles

1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c) of the Act. That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion,[2] or on other ‘complementary protection’ grounds,[3] or is a member of the same family unit as such a person and that person holds a protection visa of the same class.[4]

2. Subsection 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, ‘the Refugees Convention’, or ‘the Convention’).[5]

   [2] s.36(2)(a) of the Migration Act.

   [3] s.36(2)(aa) of the Migration Act.

   [4] ss.36(2)(c) and (d) of the Migration Act.

   [5] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954); Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967).

10.Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

..owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

11.There are four key elements to the Convention definition.

12.First, an applicant must be outside his or her country. The applicant satisfies this requirement.

13.Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant, and systematic and discriminatory conduct: s.91R(1)(b) and (c) of the Act. Examples of ‘serious harm’ are set out in s.91R(2) of the Act. They include a threat to the person’s life or liberty, significant physical harassment or ill-treatment, significant economic hardship that threatens the person’s capacity to subsist, denial of access to services such that the person’s capacity to subsist is threatened, denial of capacity to earn a livelihood of any kind threatening the person’s capacity to subsist. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group: Chan v MIEA (1989) 169 CLR 379 at 429 (Mason CJ). The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality: Applicant A v Minister for Immigration and Ethnic Affairs (1996-97) 190 CLR 225 at [233] (Brennan CJ). However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution: Chan v MIEA at 429 - 431 (McHugh J).

14.Persecution implies an element of motivation on the part of those who persecute for the infliction of harm: Chan v MIEA at 284 (Gummow J). People are persecuted for something perceived about them or attributed to them by their persecutors: Chan v MIEA at 284 (Gummow J).

15.Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

16.Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 571. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.[6] A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: refer Chan v MIEA at 389.

[6] Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989-1990) 169 CLR 379 at 429 (McHugh J) and 407 (Toohey J).

17.In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad.[7] Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

[7] See SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [19] (Gummow, Hayne and Crennan JJ) (Callinan J relevantly agreeing at [105]; see also Kirby J at [69]-[70]).

1. If a person is found not to meet the refugee criterion in s.36(2)(a) of the Act, he or she may nevertheless meet the alternative criterion for the grant of a protection visa under the ‘complementary protection’ provisions set out in the Act. These provisions commenced on 24 March 2012.

2. Section 36(2)(aa) provides that an applicant for a visa will meet the protection visa criterion if he or she is:

   a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed  from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

3. Subsection 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

1. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

2. ‘Cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ for the purposes of s.36(2A)(d) of the Act are exhaustively defined in s.5(1) of the Act. ‘Cruel or inhuman treatment or punishment’ means an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted. ‘Degrading treatment or punishment’ means an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.

1. According to the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 the meaning of intentionally inflicted and intentionally causing in the context of s.5(1) of the Act requires an actual, subjective intention on the part of a person to bring about the suffering by their conduct.

1. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

2. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Section 499 Ministerial Direction

1. In accordance with Ministerial Direction No.84[8] made under s.499 of the Act, the Tribunal is required to take account policy guidelines prepared by the Department of Immigration -Procedural Advice Manual 3 ‘Refugee and humanitarian - Complementary Protection Guidelines and Procedural Advice Manual 3 ‘Refugee and humanitarian - Refugee Law Guidelines- and any country information assessment prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   [8]Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84 - Consideration of Protection Visa applications, 24 June 2019

2. The most recent report from DFAT is the Country Information Report for Sri Lanka dated 4 November 2019. I have considered this report, together with other relevant country information, including country information referred to by the applicant’s representatives. I have also considered the Department guidelines to the extent that these are relevant to the consideration of the decision under review.  Generally, these guidelines contain an analysis of the law, examples of how the law has been applied in various jurisdictions and guidelines to decision-makers on how the law is to be applied. There is little by way of policy and the guidelines were of limited assistance in the circumstances. My analysis of this country information and any relevant guidelines is set out later in these reasons.

BACKGROUND AND PROCEDURAL HISTORY

1. The applicant was born in [a] village [in] Puttalam District, North Western Province, Sri Lanka in [year]. He arrived in Australia by boat as an Illegal Maritime Arrival in Christmas Island (IDC) in June 2012. The Minister lifted the legislative bar under s.46A of the Act and this allowed the applicant to apply for a protection visa, which he did on 8 November 2012.

2. The application was prepared with the assistance of a lawyer through the Immigration Advice and Application Assistance Scheme provided by the Department and the applicant’s claims were contained in a statement dated 23 October 2012 attached to his application to the effect that his “basic human rights were denied because of his ethnicity”. The applicant claimed that he had been harassed by the Sri Lankan army as they would not allow him to fish without a fishing permit, which he was unable to obtain. He also claimed fear of harm because of attacks in the region in which he had lived from so-called ‘grease men’ coming to the village and attacking women. The applicant claimed that his brother-in-law had been abducted by people in a white van and he was concerned that this would happen to him. The applicant’s concern was essentially focused on potential harassment and harm from Sri Lankan authorities because he was a young Tamil male, concerns that there may be perceptions he had or may have had associations with the LTTE and concerns that he would be targeted on his return because he had fled Sri Lanka illegally. These claims were consistent with claims made by the applicant at his entry interview.

3. The applicant was interviewed by a delegate of the Minister and on 10 January 2014 the delegate refused to grant the visa. In summary, the delegate accepted truth of the applicant’s claims and accepted that he feared harm but was not satisfied that the applicant’s fears were well-founded. The delegate relied on country information from DFAT and other sources to conclude that he/she was not satisfied the applicant would face a real chance of persecution on return because he was young Tamil male, because of any perceived links with the LTTE or on the basis that he was returning from the West or because he had left Sri Lanka illegally. While the delegate accepted that the applicant would be remanded in police custody for a brief period on his return because he left Sri Lanka illegally, the delegate found, again based on country information, that the most likely punishment would be a fine. The delegate was not satisfied that this would amount to significant harm for the purposes of the complementary criterion. As such, the delegate was not satisfied the applicant met the criteria for protection in either ss 36(2)(a) or 36(2)(aa) of the Act.

1. The applicant applied to the former Refugee Review Tribunal for merits review of this decision. On 1 July 2015 the former Tribunal was amalgamated with the Administrative Appeals Tribunal. The review proceeded with the same presiding member and on 29 June 2016, the Tribunal affirmed the decision of the delegate for the Minister. In brief, the Tribunal accepted a number of the applicant’s claims but did not accept certain claims made by the applicant about his brother-in-law’s kidnapping and evidence that he gave to the Tribunal that police came to his home in 2006 and when they could not find his brother-in-law, they took him in place of his brother-in-law. The Tribunal considered claims about what could or might happen to be “speculative” and, based on the country information referred to in the decision, found that it was not satisfied there was a real risk the applicant would suffer serious harm for the purposes of the Refugees Convention or significant harm for the purposes of the complementary protection criterion.

2. The applicant sought judicial review of this decision and [in] January 2018 the FCCA remitted the matter to the Tribunal for reconsideration. The Court found that the Tribunal had dismissed the applicant’s claim about fear from the ‘grease men’ on the basis it was not systemic or discriminatory conduct but this was not a necessary element of the claim under s 36(2)(aa) of the Act. The Court also found that the Tribunal’s brief statement about this matter in the reasons did not deal with the integers of this claim in the context of this case. Given the delay and the lack of clarity about the precise nature of the fear of the ‘grease men’ and the confusion as to the basis on which the claim was disposed of, this amounted to a denial of procedural fairness.

3. On 26 February 2019 the applicant, through his representative, was invited to attend a directions hearing by telephone on 5 March 2019 to discuss the case, any further evidence or submissions that would be filed with the Tribunal and to schedule a hearing. It was raised with the applicant’s representative during the directions hearing that if the applicant intended to provide further information to the Tribunal that had not been previously disclosed he would need to provide an explanation why that information was not previously disclosed. As a result of the directions hearing, the Tribunal invited the applicant by letter dated 8 March 2019, to provide any further written submissions and evidence in support of his claims, including further country information.

4. Following the directions hearing, the applicant provided a further written statement sworn by him setting out his claims, written submissions from the applicant’s representative and country information said to support the applicant’s claims. The applicant raised in his statement for the first time the claim that his brother had been a member of the LTTE. Because the submissions were provided before 21 April 2019, they did not include any reference to or submissions about the impact of the Easter bombings on the applicant’s claims.

5. On 2 May 2019, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Tamil languages. The applicant was also assisted by his representative who provided submissions about the Easter bombings and the potential impact of this on the applicant’s claims for protection. Because of the uncertainty created arising out of the Easter bombings, the Tribunal adjourned the hearing and requested that the applicant provide any further submissions and country information in relation to his claim for protection before a resumed hearing. The applicant provided submissions, together with country information, in relation to what was submitted was the “highly volatile and fragile situation in Sri Lanka” at that time.

6. The applicant was invited to attend a further hearing on 7 June 2019, which he attended with the assistance of an interpreter and his representative. At the end of the resumed hearing, the applicant was advised to provide any further submissions and country information within 14 days. No submissions were provided. One of the issues raised by the applicant’s representative in oral submissions during the hearing was concern about the potential outcome of the presidential elections scheduled for November 2019.

7. On 4 November 2019, DFAT published an updated country information report in relation to Sri Lanka. This was significant as the last report published was in May 2018 and since this time not only had the Easter bombings occurred, but there was significant information contained in the country information report about the upcoming presidential elections.

8. By letter dated 13 November 2019, the Tribunal sent the applicant’s representative a letter attaching a copy of the DFAT report and requested that the applicant provide the Tribunal with written submissions identifying any particular information the applicant intended to rely on and its relevance to the circumstances of the applicant's case. The applicant’s representative provided the Tribunal with submissions on 20 November 2019, together with further submissions about the outcome of the presidential elections, which had been determined on 16 November 2019, and the impact of the outcome on the applicant’s claims for protection. On 20 January 2020 UK Home Office published a report entitled “Report of a Home Office fact-finding mission to Sri Lanka”. Given this report also appeared to be relevant to the applicant’s claims, the applicant was requested to provide any submissions, or any other country information that was alleged to be to the contrary. By email dated 9 March 2020, the applicant’s representative responded that the applicant did not wish to provide any further submissions.

SUMMARY OF THE APPLICANT’S CLAIMS AND SUBMISSIONS

1. The applicant’s claims have changed since he first lodged his application for protection. Generally, this would be expected in relation to certain claims because the relevant time for assessing whether an applicant for protection meets the criteria is at the time of decision, not at the time of application. In this case, it has been eight years since the applicant first made his claim for protection and there have been significant changes in Sri Lanka since this time.

2. In his application for protection, the applicant identified himself as a Christian, the applicant set out his fears based on his Tamil ethnicity, the fact that he was a young male and concerns that he would be accused of being a member or supporter of the LTTE. He also raised concerns about what happened to his brother-in-law, who he claimed was abducted by white van people in 2006 and about the attacks by the grease men on Tamil villages in his area. He referred to harassment by Sri Lankan authorities because he did not have a fishing licence as evidence of the persecution and discrimination that he would face if he was returned to Sri Lanka.

3. After the applicant lodged his application for review to the former Tribunal, his representatives provided submissions to the Tribunal on 16 April 2015. It was submitted that the applicant faced persecution based on his ethnicity, because he was a Tamil, and Tamils were said to be subject to persecution from the Sinhalese majority. The applicant’s representative submitted that the applicant was not able to obtain a fishing permit due to his race. It was also submitted that, as a young Tamil male who had fled Sri Lanka and travelled to Australia, the applicant may be imputed with association to the LTTE and therefore persecuted. It was further submitted that the applicant would be persecuted as a member of a particular social group, being a failed asylum seeker.  There was no reference to his brother-in-law being a member of the LTTE.

4. In submissions dated 13 April 2019, following the remittal of the case for reconsideration, the applicant’s new representative contended that the applicant feared being seriously harmed by Sri Lankan authorities because of his race or ethnicity as a Tamil, his imputed political opinion because authorities in Sri Lanka would suspect him of having connections with the LTTE and, if he was returned to Sri Lanka, as a failed Tamil asylums seeker attorney from a Western country. It was submitted that the fact that his brother-in-law was a member of the LTTE gave him a risk profile consistent with country information relevant country information. The applicant referred to new country information, attached to the submission, together with concerns about the ‘upcoming’ presidential elections (which were subsequently held in November 2019) and the possibility that the former regime in Sri Lanka may return to power. This submission was provided to the Tribunal prior to the Easter bombings.

5. Following the first hearing, the applicant’s representative provided submissions dated 22 May 2019 to the effect that the impact of the Easter bombings raised additional concerns for the applicant. It was noted the recent attacks carried out by radical Muslim groups linked to ISIS appeared to be targeted at Sri Lanka’s Christian minority and that the recent incidents had resulted in a state of emergency and stepping up of security. It was further submitted that because most Muslims speak Tamil, they were more likely to face the same problems as Muslims, who were being persecuted at that time. It was also submitted that Sri Lankan authorities would respond to terrorist attacks by more closely monitoring a Tamil male with imputed LTTE links and there was the possibility that the applicant would be perceived to be a Muslim.

6. In submissions dated 19 November 2019, after having been provided with the updated country information report published by DFAT on 4 November 2019, the applicant’s representative submitted that as a member of the minority Tamil ethnic group and being of Christian faith, the Tribunal should find that there was a real chance the applicant would be exposed to serious or significant harm. Relevantly, the applicant’s representative referred to particular paragraphs of the updated DFAT report and attached newspaper articles commenting on the impact of the presidential elections. The representatives also referred to a paper presented in June 2014 in relation to Sri Lanka’s national security laws.

OUTLINE OF THE EVIDENCE

1. In support of his application for a protection visa, the applicant provided to the Department a statutory declaration declared by him on 23 October 2012. The applicant gave a brief account of his background, noting that he was single and had a mother and two sisters who continue to reside in Sri Lanka with his brother-in-law. According to the applicant, his mother and younger sister were dependent on him. His elder sister was married and his father had remarried. As the only son of the family the applicant stated that it was his responsibility to look after and support his mother and unmarried sister. Under the heading of “why I left my home country”, the applicant stated that he had left Sri Lanka because there was no protection for him, and his basic human rights had been denied because of his ethnicity. He recounted three instances said to give rise to these concerns.

2. First, the applicant stated that about a year before his statement he had been harassed by the Sri Lankan army. He stated that they stopped him at the shore and asked him for his fishing permit. The applicant did not have a permit because the fisheries department had refused to issue one. Because fishing was his livelihood he decided to fish without a permit. When he was questioned about this and asked why he needed to have a permit when Sinhalese fishermen did not, he stated that they began pushing him and saying how dare he question their authority. The applicant further stated that they were about to hit him when local onlookers got involved. His mother arrived and begged them to let him go, which they did.

3. Secondly, the applicant stated that in August 2010 there had been a problem in the area with grease men who attacked and abducted woman in the village. They would come and cut off their breasts and kill them. He was forced to stay up all night looking out for his mother and sisters ensuring they were safe. The applicant stated that he could not complain to authorities or request their assistance and protection because it was only women of Tamil ethnicity that were being targeted.

4. The third matter referred to by the applicant was an incident that was said to have taken place in about 2006 where his brother-in-law was abducted by “white van people”. His brother-in-law was allegedly detained for approximately 4 to 5 days and severely beaten and tortured. The people who kidnapped him asked for ransom but the applicant’s family did not have enough money to give them at the time. They eventually raised about 45,000 rupee and secured his release. The applicant stated that he always feared that the same would eventually happen to him and that many young Tamil boys had suffered the same fate.

5. The applicant stated that he feared he would be abducted and killed if he returned to Sri Lanka. He expressed concern that he would be accused of being a member or supporter of the LTTE. He did not believe that authorities in his home country would protect him because authorities were of Sinhalese ethnicity and he was a Tamil. He was concerned that authorities would not protect him because they supported groups like the white van people and the grease men. The applicant also raised concerns that because he had left Sri Lanka illegally and had applied for protection he would be harmed on his return.

6. The applicant’s evidence in his interview with the delegate, as recorded in the decision of the delegate, was consistent with his statement. The applicant also told the delegate that he had travelled to [Country] for a couple of years in 2005 and was working in a [workplace] but had to return because the visa provided by his agent was, unknown to him at the time, fraudulent. He repeated his concerns that if he returned to Sri Lanka he would be killed or harmed.

7. The case was listed for hearing before the previous Tribunal on 22 April 2015. Prior to the hearing, the applicant provided submissions through his representative dated 16 April 2015. He did not provide any further evidence or documents in support of his claim at that time.

8. The applicant gave evidence at the hearing about his background and his family. He confirmed that he did not claim to have any involvement with the LTTE. He also confirmed that he did not have any outstanding criminal matters with the police. He gave evidence about how his brother-in-law was taken by the police when he was living in [Country] and detained for four or five days until the family was able to pay a bribe. The applicant said that his brother-in-law had further issues with authorities after he came to Australia. He said that his brother-in-law was being prosecuted because he had been [details deleted]. This had apparently occurred after the applicant came to Australia. The applicant also said he had trouble with authorities when he was fishing without a pass. He said that the authorities were going to hit him, but his mother intervened. When asked what caused him to leave Sri Lanka, he said that he did not have problems with the authorities that his problems were what race related. This evidence was to the following effect:

   Racial degrading because whatever it is, we will always be suppressed because of their ruling, therefore my mother thought at least one person should be better in life and she sent me.[9]

   [9] Transcript 22 April 2015 at T33-35.

9. When was asked whether this was because he was a Tamil, the applicant responded that apart from this it was because he had come from a backward area and they were not allowed to go outside the area to study and it was difficult for them to progress in life. He said that more than 50per cent of the Tamils were not doing well at all. He also said that he was concerned because his brother-in-law was not home, that the authorities would take him instead. He said that he was concerned about his life and that he would not have come here by sea and risked his life if he did not have real fear. The applicant was asked about whether he was still concerned about the grease men. The applicant replied that the issues with the grease men had occurred during a “particular period”. He said that when he left, he would have still been concerned about that happening but acknowledged that if he was being asked about whether there were still issues about the grease men at the time of the hearing, he would say “no”. If he was asked about whether this could happen in the future, the applicant said that he could not predict what would happen. When asked why he would leave Sri Lanka and leave his mother and sister by themselves, the applicant said that his brother-in-law was there and that his mother had sent him to protect him and for his “betterment”.

10. As already noted, after the matter was remitted to the Tribunal for reconsideration, I listed the matter for directions hearing. Following directions hearing, the applicant provided a further statutory declaration in support of his claims sworn 14 March 2019. The applicant also provided written submissions and references to country information.

11. In his further statement, the applicant stated that his brother-in-law was a member of the LTTE. He said that he did not include this in his earlier statement because he only became aware of this sometime in 2014 when he learned, through his mother, that his brother-in-law had come to the adverse attention of authorities during investigations targeting former LTTE members. According to the applicant, his brother-in-law had gone into hiding and he did not know where he was. He stated that his mother had been questioned about the brother-in-law and the applicant’s whereabouts. The applicant claims that his mother told the ‘CID’ (the Criminal Investigation Department) that he was missing, and she said the CID then made notes ‘linking’ him to brother-in-law. This was one of the reasons that the applicant believed he would come to the attention of the authorities if he returned.

12. On the day before the hearing the applicant provided two untranslated Sinhalese documents, which were said to support his claim.

13. The applicant gave evidence at the hearing on 2 May 2019. The following is an outline of the key aspects of that evidence.

14. The applicant gave evidence about his family background and the circumstances that led to him being deported from [Country] in about 2006. The applicant said that when he returned to Sri Lanka he lived with his mother and family. He started fishing and selling fish for a living. He gave evidence about the incident with authorities when he was fishing without a permit. The applicant said that he knew he needed a permit but he did not apply. He said that he could have but the process was too difficult. He said that the authorities did not physically or verbally harm him, but he felt that they were watching him with “angry eyes” after this incident. This continued for a period of about six months.

15. The applicant was asked why he decided to come to Australia. He gave evidence about events that he said took place not long before he decided to come to Australia, when a friend of his brother-in-law came to the family home in [Village]. The applicant said that his brother-in-law and friend would often talk about the LTTE and that he believed that his brother in law’s friend was a member of the LTTE. He also said that his brother-in-law and friend would talk about the leader of the LTTE and would discuss that they believed he was still alive and how different things would be or would have been − there would be no discrimination against the Tamils. The applicant also said that when he was still in [Country], his sister told him about a conversation she had had with the applicant’s brother-in-law to the effect that he was a low-level member of the LTTE. When the brother-in-law’s friend came to stay in the applicant’s family home, the applicant became concerned that authorities may come to their home because there had been incidents in the village.

1. The applicant also gave evidence about the incidents that had occurred in [Village] in relation to the ‘grease men’. He said that these incidents started in about 2010. People would come to Tamil villages in the area covered in grease and would attack Tamil women. Young men in the village acted as security guards. Two of the attackers were caught but the government did nothing to investigate. The applicant said that after this, the situation settled.

2. Applicant was asked whether he had ever been confronted by the Sri Lankan army for possible association with the LTTE. He said that he had not, but he was still scared to return. He said that he wanted to be safe and wanted the better opportunities that were available to him in Australia. The applicant was questioned about why he had left behind his mother and younger sister and whether he was concerned about their safety. He responded that initially his mother and sister were not happy about him leaving but he believed his brother-in-law would be there to assist them. The applicant said that he was concerned that he would be kidnapped for money because he was returning from Australia and people would think he had money. He was also concerned about the religious problems that seem to be emerging in Sri Lanka and that he may be suspected as being a person who supported the LTTE. He also said that he was concerned about returning to Sri Lanka because there had been court cases against his brother-in-law and friends of his brother-in-law in 2016 and they had to pay files equivalent to AUD 2000 for attempting to escape the country.

3. The applicant’s representative made submissions about the applicant’s claims for protection (including new claims made following the Easter bombings) and about the volatility of the position in Sri Lanka. It was decided to adjourn the hearing to allow the applicant’s representative to make further submissions about these matters. It was also indicated that if the applicant wished to rely on the untranslated Sinhalese documents, translations would need to be provided prior to the next hearing.

4. Further submissions were provided following the hearing and the hearing resumed on 7 June 2019.  The applicant provided further evidence. The following is an outline of the key aspects of this further evidence.

5. The applicant gave evidence regarding the two Sinhalese documents that were provided at the previous hearing and had been subsequently translated. The documents were said to relate to a warrant issued in relation to his brother-in-law.  The first was said to be a warrant issued [in] May 2016 requiring his brother-in-law to appear in court [in] July 2016. The applicant said that the warrant was issued because his brother in law and friends tried to illegally leave the country in 2012. The document did not record the nature or time of the offence. The second document was dated [September] 2016 and appeared to be a receipt for 200,000 rupees said to be for leaving the country illegally.[10] According to the applicant, this was the fine paid by his brother-in-law and the brother-in-law’s friend in 2016 for the earlier offence of trying to leave the country illegally in 2012. When asked how the applicant knew this, he said his family told him. He said that his brother-in-law and friend were kept in custody and tortured for about one and a half months. The case was not resolved until 2016. The applicant said that he was first told about this by his family in 2013 and that he spoke to his brother-in-law about it over the telephone, also in 2013. He said his brother-in-law told him that they questioned him about whether he was a member of the LTTE. The applicant said that he paid the fine on behalf of his brother-in-law, the value of the fine was the equivalent of AUD 1000. He also said that after the court case was resolved, the CID continued to question his brother-in-law, who then decided to leave the country. The applicant said his brother-in-law left the country in 2016 but he does not know where he is. The applicant said that he speaks with his sister regularly and that even his sister does not know where her husband’s whereabouts.

   [10] Based on the current exchange rate this is about AUD1,600 although the applicant said this was about AUD2,000 in 2016.

6. The applicant was questioned whether his brother-in-law assisted him with his plans to leave Sri Lanka, the applicant stated that his brother in law told him who to contact but did not assist him financially.

7. There were a number of inconsistencies and confusing aspects of the applicant’s evidence about his brother-in-law.

8. For instance, the evidence given by the applicant at the first hearing was to the effect that his sister told him his brother-in-law had a low-level association with the LTTE and that she told him this when he was still working in [Country]. In the second hearing, the applicant gave evidence that he found out about this after he came to Australia in about 2013. He said that his family told him this and that he spoke to his brother-in-law over the telephone. In the applicant’s statement of March 2019, the applicant stated that he had not referred to his brother-in-law’s membership of the LTTE in his previous statement because he only became aware of his brother-in-law’s involvement sometime in 2014 when his mother told him about the CID investigations.[11]

   [11] Applicants statement 14 March 2019 [3] and [8].

9. The applicant was questioned about why he had not included evidence about his brother-in-law’s involvement with the LTTE in his evidence before the previous Tribunal given he knew about this claimed involvement by at least 2014, possibly earlier. The applicant said that he had not raised this evidence with the previous Tribunal because of concern about what would happen to his brother-in-law if it was known that his brother-in-law had an association with the LTTE. He said that he thought there was a possibility Sri Lankan authorities would find out about this if he gave evidence at the Tribunal and he did not want to put his brother-in-law’s life at risk. In particular, the applicant said he was concerned that if he raised it then someone from the Tribunal would seek verification from Sri Lankan authorities. The applicant also said that he did not raise this with his previous representative either before or at the time of the hearing in 2015. He said that he felt more comfortable to “share” this information about his brother-in-law after he left Sri Lanka in 2016 because there was “no problem” when his brother-in-law was no longer in the country.

10. The difficulty with this evidence is that it does not explain why the applicant did not include this explanation in his supplementary statement, nor why he did not include the details of his concerns about what happened when his brother-in-law’s friend came to stay in the family home and why he decided to leave.  In his statement of March 2019, the applicant stated that the reason why he had not included the evidence about his brother-in-law being a member of the LTTE was because he did not know this until 2014. He did not raise any other concern. When questioned about why the more detailed evidence about his brother-in-law was not included in his statement, the applicant’s response was confusing and unconvincing. In summary, the applicant’s evidence was to the effect that he was concerned disclosure of this information would expose his brother-in-law to harm but agreed this would be less of an issue given his brother-in-law had left Sri Lanka in late 2016.  When pressed to explain, the applicant said that he did not include the information in his most recent statement because he thought he could raise this evidence at the hearing. He also said that his lawyer told him he could summarise the issues in his statement and explain the detail at the hearing.

11. After a short break so that the applicant could discuss this matter further with his representative, the applicant said that he did not discuss with his lawyer the details about his brother-in-law leaving the country or when he came to know that he was the LTTE and it was only after he came to the hearing that he decided to “share” what he considered to be all relevant information.

12. The applicant repeated his previous evidence about his fear of being harmed if he returned to Sri Lanka and the importance of the financial support he was providing to his family.

FINDINGS OF FACT AND THE APPLICANT’S CREDIBILITY

1. I accept that the applicant is a young Tamil male who is a Christian who practiced his faith when he lived in Sri Lanka and that he fears returning to Sri Lanka because of concerns he will be persecuted as a Tamil and possibly because of his associations with his brother-in-law. I also accept that he is concerned about returning to Sri Lanka given the tensions and increased vigilance by authorities following the Easter bombing and the recent change in government.

2. I am satisfied, based on the evidence before me, that while these fears were likely to have been a motivating factor for the applicant leaving Sri Lanka illegally and travelling on a boat to Australia, he was also motivated by the difficulties in Sri Lanka following the war and the fact that he believed he would be able to find better opportunities in Australia. The applicant’s evidence at both hearings was to the effect that this was an important issue for him and sending money home to assist his mother and sister were also important considerations.

3. I accept that there was an incident in 2010 with Sri Lankan authorities at a time when the applicant was fishing without a permit. However, the description of this incident does not suggest that it was persecutory nature but rather that issues with authorities at a fishing site became elevated following the frustration of a young Tamil man who felt he was being discriminated against.

4. I accept that applicant was concerned about attacks on Tamil villages by so called ‘grease men’ and that he may have been concerned about this when he left Sri Lanka. However, I also note the applicant’s evidence (which is consistent with the country information referred to later in these reasons) that the incidents occurred over a short period of time in the past and that he was no longer concerned about this.

5. The applicant’s evidence, which I accept, is that he was not and has never been a member of the LTTE or had any involvement with the LTTE.  I also accept the applicant’s evidence when he was in Sri Lanka he did not have any outstanding criminal matters with the police. There is no evidence the applicant was arrested, taken in for questioning or monitored by Sri Lankan authorities.

6. I accept the applicant’s evidence that his brother-in-law was taken by people in a white van in about 2006 and that the reason for this may have been to recover a ransom or bribe or that he may have been questioned by the CID because of his links at that stage, albeit at a lower level, as a member of the LTTE. I accept that the applicant’s brother-in-law was fined in 2016 because he attempted to leave the country illegally and that the fine was in the vicinity of AUD1000. I also accept this may have been the result of a prosecution that commenced some years earlier. I accept the CID may have come to the applicant’s family home and questioned his mother about the whereabouts of his brother-in-law and that she may also have been questioned about his whereabouts. However, I am not satisfied that the CID questioned his mother and took notes to “link” the applicant with his brother-in-law or that there was an investigation into the brother-in-law’s association with the LTTE the led to his brother-in-law fleeing Sri Lanka in 2016.

7. First, the applicant’s oral evidence at the hearings about his brother-in-law’s involvement with the LTTE was inconsistent with the information contained in his supplementary statement of March 2019. The inconsistencies were significant because there were material omissions from the supplementary statement.

8. Notably, the applicant’s explanation of why he did not disclose certain information about his brother-in-law was inconsistent with what he said at the second hearing. He did not mention any concern about exposing his brother-in-law to investigations by Sri Lankan authorities in his statement, yet in his oral evidence during the second hearing this was said to be one of the critical reasons why he did not disclose this information earlier. Nor did the applicant not provide any evidence in his statement about the concerns that he had raised in his evidence about the activities of his brother-in-law and his brother-in-law’s friend, which he asserted had caused him to make the decision to leave.

9. When the applicant was asked to explain these inconsistencies at the second hearing, his explanation was unconvincing. Initially the applicant said that he was prepared to “share” information at the hearing in these proceedings that he had not previously revealed because his brother-in-law had left Sri Lanka in 2016 and there was now “no problem” in giving this evidence. However, this did not explain why this information was not in his supplementary statement. This statement was sworn well after 2016 and was submitted as a supplementary statement outlining new claims, as directed at the directions hearing on 5 March 2019. The applicant could not provide a cogent explanation for this and it did not reflect well on his credibility when the applicant said that he had raised further issues with his representative but his representative had advised him that it was sufficient to give a brief summary of the issue and raise this evidence directly with the Tribunal at the hearing.

10. To his credit, the applicant subsequently resiled from this. He gave evidence he had not told his representative that the reason why he had not disclosed the information about his brother-in-law was because of concern he would be harmed by Sri Lankan authorities, he had not told his representative that his brother-in-law had left Sri Lanka in 2016 and he had not “clearly” told him the year that he first became aware his brother-in-law was a member of the LTTE. It is plausible that the applicant may not have wanted to give evidence to the Department or even to the previous Tribunal in 2015 about his brother in law being involved with the LTTE but this does not explain why the information that the applicant gave about his brother-in-law at the hearings before me was not included in his statement of March 2019. Nor was there any explanation for why the applicant did not give instructions to his representative about these matters.

11. Having regard to the applicant’s confusing and inconsistent evidence, I am not satisfied about the reliability of his evidence about his brother-in-law. Relevantly, I am not satisfied that the CID were investigating the applicant’s brother-in-law in 2016 about his former links with the LTTE, I am not satisfied that the applicant’s brother-in-law left Sri Lanka because of those investigations and I am not satisfied that the CID made notes to link him with his brother-in-law. The evidence given by the applicant about these matters was not only vague, because it is based on information that he said was given to him by his mother, but it is speculative. There is no evidence as to how his mother knew the CID were investigating his brother-in-law or how she knew that the CID had made notes linking him to his brother-in-law. As such, the applicant’s evidence about what he said his mother told him about this carries little weight. This evidence also appears to be inconsistent with other evidence given by the applicant that authorities had investigated the applicant’s brother-in-law over an extended period and had already taken action against him for offences going back to 2012. The evidence, which was corroborated by the copies of the warrants and receipts provided by the applicant at the hearing, is to the effect that the applicant’s brother-in-law and his friend had been prosecuted resulting in fines of 100,000 rupees each which were paid in 2016. It is possible that the applicant’s brother-in-law has left Sri Lanka and that he has done so illegally but I am not satisfied that there is sufficiently probative evidence about why he has left and whether the brother-in-law’s actions would implicate the applicant or expose him to any risk of harm or persecution by authorities.

RELEVANT COUNTRY INFORMATION

Introduction

1. Under s.499 of the Act, the Tribunal must have regard to Direction 84 which provides, among other things, that the Tribunal must take into account, where relevant, any country information assessment prepared by DFAT.

2. Direction 84 provides that while a decision-maker must take into account the country information assessment DFAT has prepared for the purposes of assessing the applicant’s claims for protection, a decision-maker is not precluded from considering other relevant information about the country.

3. I have reviewed a broad range of material, including country information provided by the applicant’s representatives, and considered the following country information and reports in relation to Sri Lanka:

   (1)The DFAT country information report for Sri Lanka dated 4 November 2019 (the 2019 DFAT Report);

   (2)The Eligibility guidelines for assessing the international protection needs of asylum- seekers from Sri Lanka dated 21 December 2012 published by the United Nation’s High Commissioner for Refugees (UNHCR);

   (3)Sri Lanka Situational Update: Easter Sunday terror attacks dated 6 May 2019 from the Country of Origin Information Services Section (COISS), Department of Home Affairs;

   (4)Sri Lanka Situational Update: elections dated 29 November 2019 from COISS;

   (5)The Report of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment on his mission to Sri Lanka in the period 29 April to 7 May 2016, dated December 2016;

   (6)Report of the UK Home Office fact-finding mission to Sri Lanka, dated 20 January 2020;

   (7)Report of the UK Home Office entitled Sri Lanka: Tamil Separatism dated May 2020;

   (8)Various reports and publications about Sri Lanka provided by the applicant’s representatives including: UN Human Rights Council Oral update of the High Commissioner for Human Rights published 22 September 2014,[12] reports from Amnesty International,[13] The US Department of State, 2013 Country Reports on Human Rights Practices – Sri Lanka report for Sri Lanka,[14] a report by Asylum Research Centre published 19 August 2014,[15] Information Report on Sri Lanka published in January 2018,[16] and a Report from UN Committee Against Torture,[17] various media articles and smart traveller travel advice dated 1 May 2019 in relation to the bombings that took place over the Easter weekend in 2019 and following the presidential elections as at 20 November 2019 and an article headed Repeal or Reform of Sri Lanka’s Repressive National Security Law dated 24 June 2014.

4. The applicant’s representative also provided two articles at the hearing of 7 June 2019 being Muslim shops in Sri Lanka Attacked as Tensions Remain after Easter Monday, 8 May and “Sri Lankan tensions, Sri Lanka Attacks and Intercommunal Relations Analysis.

5. By email dated 19 November 2019, the applicant’s representative made submissions in relation to the 2019 DFAT report which was provided to the applicant for comment by letter dated 13 November 2019. Those submissions are referred to later in these reasons. The applicant was also provided with a copy of the UK Home Office fact-finding mission report by letter dated 24 February 2020 and by email dated 9 March 2020advised the applicant did not wish to provide any further submissions.

   [12] UN Human Rights Council, Oral update of the High Commissioner for Human Rights on promoting reconciliation, accountability and human rights in Sri Lanka, 22 September 2014, A/HRC/27/CRP.2, available at:

   [13] Amnesty International, Still no human rights accountability in Sri Lanka: still no end to serious human rights violations, 29 August 2013, ASA 37/021/2013; and Amnesty International, 'There are no human rights in Sri Lanka', 1 May 2013, available at: Dated 27 February 2014, Asylum Research Centre (ARC), Sri Lanka: 1. Information on Tamils who have returned (voluntarily or forced) to Sri Lanka since February 2014 and who were subjected to detention and/or torture and/or ill-treatment; (2) Information on the working methods of the Sri Lankan authority in 'screening' Tamil returnees, particularly since February 2014; (3) Information on activities of Sri Lankan Embassies abroad to monitor the behaviour/conduct of Sri Lankans abroad, particularly since February 2014; (4) Any information on recent arrest/detention/ ill-treatment/ torture of Tamils within Sri Lanka, and on what grounds particularly since February 2014, 19 August 2014, available at: Dr L Bopage, M Cooke, Fr P Jordan OP, A. Ratnakanthan, C Slee and N Suriyakumaran, “Information Report on Sri Lanka” (Nalliah Suriyakumaran, 2^nd ed, 2018).

   [17] UN Committee Against Torture (CAT), Concluding observations on the fifth periodic report of Sri Lanka, 27 January 2017, CAT/C/LKA/CO/5, available at:

Outline of country Information reviewed

1. DFAT has published eight country information reports in relation to Sri Lanka since July 2013. The most recent assessment is set out in the 2019 DFAT report, which is an updated country information report replacing the previous DFAT report on Sri Lanka published on 23 May 2018.

2. The DFAT Report is said to be informed by DFAT’s “on the ground knowledge and discussions with a range of sources in Sri Lanka”. Relevantly, it is noted that the report takes into account relevant and credible open source reports, including those produced by the US Department of State, the UK Home Office, the World Bank and the International Monetary Fund, relevant UN agencies, including the Office of the United Nations High Commissioner for Human Rights (OHCHR), the UNHCR and the International Organisation for Migration (IOM); leading human rights organisations such as Human Rights Watch, and Amnesty International and Freedom House; Sri Lankan non-governmental organisations (NGOs) and reputable news organisations.[18]  The 2019 DFAT Report is comprehensive and, in my view, authoritative.

   [18] DFAT country information report for Sri Lanka dated 4 November 2019 at [1.4].

3. There have been significant changes in political, economic and social conditions in Sri Lanka over the past 12 years and it is useful to set out some background information about those matters, as outlined in the 2019 DFAT Report and in other relevant reports and articles, some of which were provided by the applicant’s former and current representatives.[19]

   [19] This country information has also been included in the decision of 1820986 (Refugee) [2020] AATA 973

4. Sri Lanka is a democracy, having gained independence from the United Kingdom in 1948. The genesis of the conflict between the minority Tamils and the Sinhalese is explained in the 2019 DFAT Report at [2.1] as follows:

   Historically, relations between Sri Lanka's majority Sinhalese and minority Tamil communities have been tense. Tamils received preferential treatment during the British rule, including in education and civil service employment. To address this imbalance, in the period following independence successive Sinhalese-led governments introduced measures to promote the primacy of the Sinhalese community…… These developments created a sense of marginalisation within the Tamil community and encouraged calls for an independent Tamil state, Tamil Eelam, in the predominantly Tamil populated north and east of the country.

5. Military groups emerged to advance the Tamil cause and the most prominent of these was the LTTE, which was formed in 1976. By 1983, the LTTE, commonly known as the Tamil Tigers, established and maintained control of Tamil populated areas in the north and east. What followed was Civil War in Sri Lanka for over 26 years. There was a ceasefire between the Sri Lankan government and the LTTE in 2002 which broke down in 2005. Government forces took back control of the eastern part of the country from the LTTE in July 2007 and in 2008 launched a major offensive to capture the remaining LTTE controlled areas in the north. The LTTE surrendered in May 2009. According to DFAT, the UN and human rights organisations documented serious violations during the final stages of the war. In the 26 years of Civil War it is estimated that there were over 100,000 casualties with 900,000 people being displaced. [20]

   [20] 2019 DFAT Report [2.2].

6. Following the end of the Civil War the Office of the UN High Commissioner for Human Rights (OHCHR) undertook an investigation in relation to possible war crimes in Sri Lanka. A report was released in September 2015 and the Office found that the government and LTTE forces likely committed war crimes and crimes against humanity between 2002 and 2011.[21] On 1 October 2015, the Human Rights Council of the United Nations adopted a resolution in relation to “Promoting reconciliation, accountability and human rights in Sri Lanka” (resolution 30/1). This resolution was co-sponsored by Sri Lanka. In December 2015 the Sri Lankan government approved the formation of a secretariat for coordinating reconciliation mechanisms within the Prime Minister's office. DFAT reports that while there has been progress towards reconciliation following the end of the war, this progress has been “slow and uneven”.[22]

   [21] Ibid [2.43]

   [22] Ibid [2.45]

7. Sri Lanka has a mixed parliamentary and presidential form of government. The President is directly elected for a five-year term.

8. From 2005 to 2015 Sri Lanka was led by President Mahinda Rajapaksa. The President is the Head of State, Head of Government and Commander in Chief. Mahinda was defeated by Maithripala Sirisena in January 2015. He appointed Ranil Wickremesinghe as Prime Minister and they were elected on a platform of democratic renewal, post-war reconciliation, accountability for war crimes, anticorruption and economic reform. There was progress in the reform but the overall pace was considered to be slow and in October 2018 there was a constitutional crisis triggered by Sirisena's decision to dismiss Wickremesinghe as Prime Minister, dissolve Parliament and replace Wickremesinghe with Mahinda. The Sri Lankan Court of Appeal intervened and Wickremesinghe was reinstated as Prime Minister on 16 December 2018. This placed Sri Lanka in a state of political paralysis.[23]

   [23] Ibid, [2.6] and [2.32] - [2.37].

9. After the publication of the 2019 DFAT Report, presidential elections were held in Sri Lanka on 16 November 2019.

10. In its report Sri Lanka Situational Update: elections dated 29 November 2019, the Country of Origin Information Services Section of the Department of Home Affairs (COISS) noted that the key issues in the election campaign were about national security following the Easter bombings, the Sri Lankan’s underperforming economy and government dysfunction highlighted by infighting between the outgoing president and the prime minister.[24]

11. Gotabaya Rajapaksa was elected as President and the Rajapaksa family was restored to power. According to a Situational Update report of COISS dated 29 November 2019, Gotabaya Rajapaksa is the controversial former defence secretary and brother of the former president Mahinda Rajapaksa. COISS noted that the election of Gotabaya Rajapaksa was seen as “a vote seeking competent government rather than just a vote in favour of Sinhalese dominance of Sri Lanka”.[25] However, COISS also reported as follows;

    While Gotabaya has made some conciliatory statements towards minorities since his election, a number of his initial actions have heightened concerns that his presidency could sharpen ethnic and religious tensions in the country and have negative impacts on the future of Sri Lankan democracy, human rights and the rule of law.[26]

12. On 21 November 2019 Gotabaya Rajapaksa swore in his brother, Mahinda, as interim Prime Minister. In March 2020, President Gotabaya Rajapaksa used his constitutional powers to dissolve parliament and called for elections on 25 April 2020, which have now been indefinitely postponed due to the Coronavirus.[27]

    [24] Refer Situational Update, Country of Origin Information Services Section, Department of Home Affairs effective 29 November 2019.

    [25] Ibid pp 1 and 3.

    [26] Situational Update; Sri Lanka-Elections Country of Origin Information Services, Department of Home Affairs, effective from 29 November 2019, p 1.

    [27] Report of the UK Home Office entitled Sri Lanka: Tamil Separatism dated May 2020 [3.3.9]

100.There is no dispute that the change in the Sri Lankan government and the return of the Rajapaksa family has caused concern for Tamils, including concerns relating to the progress of reconciliation after the Civil War. For instance, in February 2020 Mahinda Rajapaksa was reported as stating that the government would no longer abide by a 2015 UN Human Rights Council resolution calling for accountability for alleged excesses carried out by the Sri Lankan troops and repatriation for victims.[28] This was confirmed in an announcement on 27 February 2020 by Sri Lanka’s Foreign Minister to the UN, who said that Sri Lanka would review the previous inquiries and propose a way forward but would not proceed with the UN resolutions which would “infringe the sovereignty” of Sri Lanka and be contrary to its Constitution.[29]

[28] developments, and the possible implications for Tamils and returning asylum seekers, is referred to in more detail later in these reasons.

102.Sri Lanka is a party to the core international Human Rights Conventions and the Human Rights Commission of Sri Lanka was established by an act of Parliament in 1996 with a mandate to investigate alleged violation of fundamental rights. According to DFAT the Human Rights Commission of Sri Lanka has “made strong gains in consolidating its independence and has was assessed as being fully compliant with the Paris principles and granted Status A accreditation in May 2018”.[30]

[30] DFAT Country Information Report 4 November 2019 at [2.51] -[2.55].

103.Sri Lanka has a population of 21 million with nearly 30 per cent of its population is concentrated in the Western province where the capital, Colombo, is located. The majority of Sri Lankans (almost 80 percent) live in rural areas. According to the national census in 2012 the Sinhalese comprise 74.9 per cent of Sri Lanka's total population and Tamils constitute the largest ethnic minority at 15.3 per cent of the population, followed by Muslims.[31]

[31] Ibid [2.6] and [2.7].

104.DFAT notes that Sri Lankans practice four major religions: Buddhism (70.1 per cent of the population, mostly Sinhalese): Hinduism (12.6 per cent, mostly Tamils), Islam (9.7 per cent, predominantly in the Eastern, Western and North-western provinces) and Roman Catholic and other Christian denominations (7.6 per cent, concentrated in the Western and North-western provinces).[32]

[32] Ibid [2.8]

105.The World Bank classifies Sri Lanka as an upper middle-income country. Its economy has expanded significantly since the end of the Civil War. Sri Lanka's unemployment rate is relatively low although there are regional variations. Sri Lanka's social and human development indicators are among the best in South Asia and poverty rates are relatively low. Extreme poverty is rare. [33]

[33] Ibid [2.9] - [2.12].

106.DFAT notes at [2.56] that the security situation in Sri Lanka has improved significantly since the end of the Civil War in May 2009. During Easter 2019 terrorist attacks were carried out by local Islamic extremists inspired by ISIL. They targeted three luxury hotels in Colombo and three Christian churches in Colombo, Negombo and Batticaloa. Security was heightened and the police and military were given broad powers of detention and search and entry following the introduction of the Emergency Regulations, which were introduced on 22 April 2019 but lapsed on 22 August 2019. The Sri Lankan government says that it has killed or apprehended all of those directly involved in the attacks. Travel to the north and east is no longer restricted. While security checkpoints on major roads were re-established following the 2019 Easter Sunday terrorist attacks, they have since been removed. The military maintains a significant presence in the north although involvement in civilian life has decreased.[34]

[34] Ibid [2.56] – [2.65]

107.The Constitution provides for freedom of religion, although following the Easter bombings, Muslims have been the subject of reprisals, widespread discrimination and vilification.[35] As noted by DFAT, anti-Muslim sentiment in Sri Lanka increased following the Easter bombings, with “reports of Muslims being subject to discrimination on the basis of their religion…. including within the context of the Emergency Regulations promulgated following the attacks”.[36] DFAT also notes said it has “heard anecdotally that some Muslim men in the north and east have been refused travel passes, which has prevented them from fishing”.[37] According to DFAT, the Muslim community has “come under increased scrutiny as part of the government’s counterterrorism efforts following the Easter Sunday terrorist attacks, including monitoring for signs of radicalism”.[38] Relevantly, DFAT assesses at [3.41] that:

…in the current environment, Muslims face a moderate risk of violence. DFAT further assesses that, in the current environment, Muslims face a low – but increasing – risk of official discrimination and a moderate risk of societal discrimination, including a growing threat to the freedom of religion.

[35] Ibid [3.31] – [3.41] more generally

[36] Ibid [3.31]

[37] Ibid [3.32]

[38] Ibid [3.34]

108.According to DFAT approximately 82 per cent of Christians in Sri Lanka are Roman Catholic. The Christian community encompasses both Sinhalese and Tamil ethnic groups.[39] DFAT assesses that Christians in Sri Lanka face a low risk of official discrimination, Roman Catholics and other mainstream Christian denominations face a low risk of societal discrimination. but evangelical Christians face a moderate risk of societal discrimination.[40] There is no evidence or claim by the applicant that he is evangelical. Relevantly, DFAT reports at [3.46] as follows:

…There were no reported incidents of attacks on Christians by radical Muslims in Sri Lanka prior to the Easter Sunday terrorist attacks. Future attacks against the Christian community by home grown Islamic extremists are possible. DFAT assesses that Christians face a low threat of violence from home grown Islamic extremist groups, although this could change if such groups were to expand in membership and strengthen their international links.

[39] Ibid [3.42]

[40] Ibid [3.46]

109.Tamils are the second largest ethnic group in Sri Lanka. They comprise 15.3 per cent of the population and reside through Sri Lanka but are concentrated in the Northern and Eastern Provinces (i.e. 93.8 per cent and 39.2 per cent respectively.[41] They have a “substantial level of political influence, and their inclusion in political dialogue has increased since the change of government in 2015”.[42]

[41] Ibid [3.5].

[42] Ibid [3.6].

110.According to DFAT, Tamils do not receive “unwarranted attention from authorities” because their political involvement and DFAT assesses that there are no barriers to Tamil political participation.[43] DFAT also assesses that there is no official discrimination on the basis of ethnicity in public sector employment although it is aware that some Sinhalese from the south have resettled in the north and east with government assistance in the post war period. DFAT reports that some Tamils claim that the Sinhalese have resettled on desired coastal land and, relevant to the applicant’s claims, that Sinhalese fishermen in the north were supported by the Navy.[44]

[43] Ibid [3.6].

[44] Ibid [3.5] - [3.9].

111.DFAT notes that many Tamils in the north and east reported being monitored and harassed, arrested or detained by security forces during the war. It is recorded at [3.15];

DFAT assesses that, while monitoring of Tamils in day-to-day life has decreased significantly under the current government, surveillance of Tamils in the north and east continues, particularly those associated with politically-sensitive issues. Physical violence against those being monitored is not common.

112.The Prevention of Terrorism Act (‘PTA’) was enacted as a temporary measure in 1979 to counter separatist insurgents. During the Civil War authorities detained more Tamils under the PTA than any other ethnic group. According to DFAT, since 2015 the government has reviewed cases where persons have been detained under the PTA and has released some detainees, mostly Tamils. The PTA remains in force but was suspended between 2016 and April 2019. Following the 2019 Easter bombings, the PTA has been used to detain persons allegedly involved in those attacks. The government committed to repeal and replace the PTA with counterterrorism legislation, but the constitutional crisis and the 2019 Easter bombings have stalled this reform. [45] As such, the PTA remains in force and DFAT states it is “unable to verify how many individuals have been retained under the PTA since 21 April 2019”.[46]

[45] Ibid [3.16]- [3.17].

[46] Ibid [3.17].

113.According to DFAT, Sri Lankan security forces arrested and detained a large number of LTTE members towards the end of the war. Most were sent to rehabilitation centres and some were prosecuted through the court system.[47] Relevantly, the 2019 DFAT Report states as follows:

3.57 While the LTTE was comprehensively defeated, Sri Lankan authorities remain sensitive to its potential re-emergence. According to expert testimony provided to a 2013 hearing of the UK’s Upper Tribunal on Immigration and Asylum, Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases. DFAT understands these databases remain active. ‘Stop’ lists include names of those individuals that have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals that the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities. The UK Home Office reported in June 2017 that the ‘watch list’ comprised minor offenders and former LTTE cadres. DFAT assesses those on a watch list are likely to be monitored.

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

3.59 The LTTE has not carried out any attacks since 2009. DFAT assesses that the LTTE no longer exists as an organised force inside Sri Lanka, and any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans, including those returning from abroad. The government has demonstrated a commitment to easing restrictions: in November 2015, it de-listed eight Tamil diaspora organisations and 269 individuals banned in March 2014 under domestic implementation of UNSC Resolution 1373 (2001) for purported links to a terrorist organisation (the LTTE). Eight organisations and more than 170 individuals (26 of them proscribed on 23 May 2019) remain on the list (see Former LTTE members living outside Sri Lanka). Local sources told DFAT that the Tamil community had abandoned militancy and was committed to addressing its grievances through political means.[48]

[47] Ibid [3.56].

[48] Ibid [3.57] – [3.59].

114.In relation to the question about the attitude of Sri Lankan authorities to former LTTE members and those with imputed links to the LTTE, DFAT reports as follows:

3.71 ‘High-profile’ former LTTE members are individuals who held senior positions in the LTTE’s military wing and civilian administration. ……………Others considered ‘high-profile’ include individuals suspected of terrorist or serious criminal offences during the war, or of providing weapons or explosives to the LTTE.

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

130.DFAT further notes:

5.34 Most Sri Lankan returnees, including those from Australia, are questioned (usually at the airport) upon return and, where an illegal departure from Sri Lanka is suspected, they can be charged under the I&E Act. DFAT understands the Police Airport Criminal Investigations Unit at Bandaranaike International Airport makes most arrests. In the process, police will take photographs, fingerprints and statements from returnees, and further enquire about activities while abroad if returnees are suspected to be former LTTE members. At the earliest available opportunity after investigations are completed, police transport individuals charged with departing Sri Lanka illegally to the closest Magistrate’s Court, after which custody and responsibility for the individual shifts to the courts or prison services. The magistrate then makes a determination on next steps for each individual; facilitators or organisers of people smuggling ventures, including the captain and crew of the boat, are usually held in custody. Apprehended individuals can remain in police custody at the Criminal Investigation Department’s Airport Office for up to 24 hours after arrival. Should a magistrate not be available before this time (for example, because of a weekend or public holiday), those charged may be detained for up to two days in an airport holding cell. DFAT is not aware of mistreatment of returnees during this process.

5.35 The Sri Lankan Attorney-General’s Department has directed that all passengers of people smuggling ventures, not only those suspected of facilitating or organising irregular migration, be charged under the I&E Act and appear in court. Those charged are required to appear in court in the location where the offence occurred, which involves legal and transport costs. While the frequency of court appearances depends on the magistrate, DFAT understands that most individuals charged under the I&E Act appear in court every 3-6 months. In addition to their own court hearings, those charged may be summonsed as witnesses in cases against the facilitators or organisers of people smuggling ventures. Cases are taken forward in court only when all members of a people smuggling venture have been located, contributing to protracted delays. According to local sources, some cases dating from 2015 are still ongoing. The IOM provides legal assistance to individuals charged under the I&E Act who returned to Sri Lanka with the IOM’s assistance. Some returnees charged under the I&E Act report having to travel long distances to attend court hearings, and have found this disruptive to their livelihoods. At the time of publication, about 800 separate court cases were pending, with most involving several people. The I&E Act does not specify minimum mandatory sentences. Returnees who departed Sri Lanka legally are not required to face a court, as no offence under the I&E Act applies.

5.36 Bail is normally granted to fare-paying passengers of a people smuggling venture. Bail conditions are discretionary and can involve monthly reporting to police at the returnee’s expense, including for those who have subsequently relocated to other parts of the country. In contrast, facilitators or organisers of people smuggling ventures, including captains and their crew, are usually refused bail and are taken into custody. Facilitators or organisers of people smuggling ventures may be charged under Section 45 (c) of the I&E Act. DFAT understands that facilitators or organisers of people smuggling ventures convicted under Section 45 (c) normally receive prison sentences of between one and three years, depending on the extent of their involvement in the venture, with sentences usually closer to three years. DFAT could not obtain information on the number of facilitators or organisers of people smuggling ventures convicted.

5.37 The Attorney-General’s Department, which is responsible for the conduct of prosecutions, claims no fare-paying passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally (as distinct from facilitators or organisers). However, fines are issued to fare-paying passengers as a way of deterring future illegal departures. Fine amounts vary from LKR3,000 (approximately AUD25) to LKR200,000 (approximately AUD1,633). Well-placed sources told DFAT this fine is usually between LKR15,000 and LKR20,000 (approximately AUD122 and AUD163). A guilty plea will attract a fine, which can be paid in instalments, and the defendant is free to go. Where a passenger returnee pleads not guilty, the magistrate will usually grant bail on the basis of personal surety or guarantee by a family member. Where a guarantor is required, returnees may need to wait for the guarantor to come to court.

5.38 The severity of the fine for fare-paying passengers charged under the I&E Act does not necessarily increase for those who have departed Sri Lanka illegally on more than one occasion. DFAT notes that, while the fines issued for passengers of people smuggling ventures are often low, the cumulative costs associated with regular court appearances over protracted lengths of time can be high. Anecdotal evidence suggests there is an acceptance within the Tamil community that illegal maritime ventures to Australia in search of asylum would be futile at this point in time.

5.39 DFAT assesses that the Sri Lankan authorities differentiate between fare-paying passengers and the facilitators or organisers of irregular migration. The authorities are more likely to pursue those suspected of being facilitators or organisers of people smuggling ventures (generally those individuals who arranged the finances for a people smuggling venture and recruited the crew, and the crew themselves) than fare-paying passengers. Unlike facilitators or organisers, fare-paying passengers are usually released on bail and generally receive only a fine for breaking the I&E Act.

………………….

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

131.On the question of the conditions facing returning Tamil asylum seekers, DFAT reports as follows:

5.46 DFAT understands that some returnees, including returnees in the north and east with suspected LTTE links, have been the subject of monitoring by the authorities, involving visits to returnees’ homes and telephone calls by the Criminal Investigation Department. DFAT understands that most returnees, including failed asylum seekers, are not actively monitored on an ongoing basis. DFAT is unable to verify whether monitoring, where it occurs, is specific to former LTTE cadres. DFAT is not aware of returnees, including failed asylum seekers, being treated in such a way that endangers their safety and security. Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had no protection concerns and had not experienced harassment by the authorities, nor received monitoring visits.

5.47 Bureaucratic inefficiencies rather than official discrimination present the biggest challenge to reintegration for returnees. Refugee returnees, particularly those who returned without UNHCR facilitation, can experience delays in obtaining necessary identification documents and citizenship. Lack of documentation inhibits access to social welfare schemes and the ability to open bank accounts, find employment or enrol in educational institutions. Limited job availability in the north and east further contributes to difficulties in securing employment and housing. DFAT assesses that reintegration issues are not due to failure to obtain asylum, but rather due to the employment and accommodation difficulties returnees may face. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they were able to reintegrate into their communities and find employment.

5.48 DFAT understands that returnees may face financial difficulties reintegrating into their communities, including due to sale of their belongings to fund irregular ventures overseas, but do not experience societal discrimination for seeking asylum elsewhere.

5.49 Some refugees and failed asylum seekers reported social stigma upon return to their communities, including for being beneficiaries of financial reintegration assistance. Overall, DFAT understands that societal discrimination is not a major concern for returnees, including failed asylum seekers. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had not experienced societal discrimination following their return.

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

132.This is consistent with the conclusions of the recent reports of the UK Home Office, being the fact-finding mission published in January 2020 and the country information report published in May 2018.[63]

[63] Report of the UK Home Office fact-finding mission to Sri Lanka, dated 20 January 2020 [4.1.1] – [4.3.2] and DFAT Country Information Report 23 May 2018 [5.27] – [5.36].

Relevant findings on country information

133.There is a broad range of country information available about Sri Lanka. The political, economic and human rights framework for Sri Lanka has changed significantly since the end of the Civil War in 2009.

134.The most recent reports from DFAT and the UK Home Office outline those changes and provide an authoritative and comprehensive foundation for the assessment of whether an applicant faces a real risk of serious or significant harm to engage Australia’s obligations to provide protection. They are compiled by reference to numerous sources, including interviews with authorities, international agencies and sources on the ground.

135.In my decision of 1820986 [2020] AATA 973 (‘1820986’) I included a detailed analysis of the country information available on Sri Lanka. I concluded that the country information contained in the DFAT and UK Home Office reports were comprehensive and authoritative. I therefore give these reports significant weight. I remain of the view that my findings that I made in 1820986 about Sri Lanka remain apt to the circumstances of this case and the findings that follow are consistent with those in 1820986.[64]

[64]1820986 [2020] AATA 973 [214]- [226]

136.There are credible reports that there was persecution of Tamils during war and in the period following the war through monitoring and arbitrary detention and torture but there are also credible reports that this has decreased over time. According to both DFAT and the UK Home Office, the monitoring of Tamils has reduced, particularly since 2015. Tamils do not suffer persecution simply for being Tamil and, while low-profile former LTTE members or Tamils with imputed LTTE links may be monitored, it is generally accepted by DFAT and the UK Home Office that they are able to lead their lives without concern for their security. There are no laws or policies that discriminate against Tamils although Tamils, like other minorities, may face some discrimination. There is no evidence that Tamils face poverty based on persecution or discriminatory policies.

137.There are also credible reports of the CID detaining and torturing suspected LTTE members during and after the war to extract confessions, after which the suspects were held in detention on remand. There are also credible reports that these techniques of detention and torture continued until at least April 2016 in relation to suspects of terrorism. However, it is also clear that the landscape has changed significantly over time. The LTTE is no longer active and there is little support for a resurgence of the LTTE. Notably the Sri Lankan government took decisive and proactive action after the end of the war to deal with LTTE members and associates. The preponderance of evidence is that Sri Lankan authorities focus on high-profile former LTTE members and not low-level participants. Both DFAT and the UK Home Office report that most LTTE members or former or imputed members have either been investigated or prosecuted or have undergone rehabilitation and have been released. Those who have not been investigated or sent to rehabilitation camps have been questioned and released. According to DFAT, most Tamils no longer advocate for a separate state and have more pressing concerns about housing, employment and the return of land or accessing information about relatives who have disappeared during the war.

138.After the Easter bombings in 2019, there was increased vigilance and monitoring and security checkpoints on the major roads re-established. Tamils reported concern about this. However, since this time the Sri Lankan government says it has killed and apprehended all of those involved in the attacks. The checkpoints have now been removed.

139.The Sri Lankan government under Mahinda Rajapaksa initiated steps towards reconciliation after the war but little progress was made. When the new Sirisena government was installed in 2015, further steps were taken towards reconciliation and the investigation of war crimes but progress was “slow and uneven”. The current Sri Lankan government has said it will not abide by the 2015 UN Human Rights Council resolution about the implementation of a range of reconciliation measures because this would “interfere” with its Constitution and sovereignty. However, it appears the government has not abandoned this entirely and has said this will be further reviewed.

140.With the Rajapaksa family back in power, it seems likely that progress on the investigation of and accountability for war crimes will be stalled. This is clear from the government’s recent announcements. However, this does not mean that the progress made during the years of the Sirisena government will be reversed. The war finished over 10 years ago, the LTTE was comprehensively defeated and the country information suggests that most Tamils are focussed on the underperforming economy, which is one of the key issues on which Gotabya Rajapaksa campaigned.

141.There has been intense and ongoing scrutiny from the international community in relation to human rights abuses in Sri Lanka since the end of the Civil War and, more recently, scrutiny on the Rajapaksa government.

142.This is evidenced the Annual Report of United Nations High Commissioner for Human Rights dated 26 February 2020 the High Commissioner noted concerns about the “possible reversal of past commitments” by the Sri Lankan Government and urged the Sri Lankan Government to “continue to engage proactively with the OHCHR. She also urged the Human Rights Council to “maintain close monitoring and engagement on developments in Sri Lanka”.[65] The High Commissioner also noted the “critical importance” of independent institutions in Sri Lanka, such as the Human Rights Commission of Sri Lanka which has “continued its proactive and outspoken defence of human rights in an independent and professional manner”.[66]

[65] Annual Report of the UN High Commissioner of Human Rights and Reports of the OHCHR and Secretary General dated 26 February 2020, Summary.

[66] Ibid at [37].

143.This is consistent with the assessment of DFAT that the Human Rights Commission of Sri Lanka has made “strong gains in consolidating its independence”.[67]

[67] 2019 DFAT Report at [2.55]

144.International scrutiny is likely to continue and in the absence of an internal driver, such as increased Tamil activism against the Sri Lankan government, it is difficult to see why there would be increased monitoring and harassment of Tamils under the Rajapaksa government.

145.The gradual changes since the end of the Civil War have carried through to the Sri Lankan government’s approach to failed asylum seekers who return or are deported back to Sri Lanka and, according to the UK Home Office there has been a reduced level of screening at the airport since 2015.

146.Asylum seekers who are deported from other countries and who have departed Sri Lanka illegally will generally be questioned at the airport by immigration officials then the CID, who make additional checks. According to the UK Home Office, if there are no criminal records or warrants, the person would generally be released after being interviewed by CID officers. According to DFAT, asylum seekers who depart Sri Lanka illegally may be charged under the I&E Act but fare paying passengers would normally be granted bail unless they were suspected of being involved in a more serious offence, such as people smuggling. If an asylum seeker is charged with illegal departure they will be brought before the closest Magistrate’s Court, but I accept that there may be a brief period of detention for up to two days in an airport holding cell if there are delays in appearing before the Court. Based on the 2019 DFAT Report, while it is accepted that conditions in Sri Lankan prisons are poor, there is no evidence that returning asylum seekers who are detained in an airport holding cell would be mistreated by authorities. Nor is there country information from DFAT or the UK Home Office that suggests Tamils, even where they are failed asylum seekers who have left Sri Lanka illegally, are treated any differently from other Sri Lankans returning from overseas who have left Sri Lanka illegally.

147.Returning asylum seekers who are charged with illegal departure and plead guilty will be fined and allowed to return to their community. Asylum seekers who plead not guilty would generally be bailed. Bail can involve monthly reporting and persons charged under the I&E Act may appear in court every 3 to 6 months at the location where the offence occurred. There is no country information to the effect that failed Tamil asylum seekers returning from a Western country are treated differently from other failed asylum seekers.

148.According to DFAT, the Department of the Sri Lankan Attorney General claims, and there appears to be no evidence to the contrary, that no fare paying passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally. Fines for returnees who plead guilty may be issued as a deterrent and the fine is usually approximately AUD 122 and AUD 163 which may be paid by instalments, after which time the defendant is free to go.

149.Most failed Tamil asylum seekers who return home are not actively monitored on an ongoing basis. Bureaucratic inefficiency rather than official discrimination presents the biggest challenge for returning Tamils. It is possible that returnees may face financial difficulties reintegrating into their communities, but they face a low risk of societal discrimination upon return to their communities.

CONSIDERATION

Refugee convention claims

150.In order to meet the refugee criterion under s.36(2)(a) of the Act, the Tribunal must be satisfied the applicant has a fear of persecution, that this fear is well-founded and that the fear has a refugee nexus, namely that there is a real chance the applicant will be persecuted and that this fear of persecution is for reasons of race, religion, nationality, membership of a particular social group or political opinion. The persecution must involve serious harm and systemic and discriminatory conduct. ‘Serious harm’ includes threat to life or liberty, significant physical harassment or ill-treatment, significant economic hardship that threatens the capacity to subsist, the denial of capacity to earn a livelihood of any kind or the denial of access to services such that the person’s capacity to subsist is threatened.

151.The applicant claims to fear persecution because of his Tamil ethnicity, his imputed political opinion and because he is a failed Tamil asylum seeker returning from a Western country who left Sri Lanka illegally. He also claims to fear harm because he is a Christian and because he is concerned he may be perceived to be a Muslim.

152.I accept that these fears have the relevant refugee nexus for the purposes of the Refugees Convention. I also accept that the applicant has genuine fear he will be persecuted on his return, or at the least he may face discrimination. However, I am not satisfied these fears are well-founded for the reasons that follow.

153.According to the available country information, Tamils living in Sri Lanka do not face excessive monitoring, detention or harassment. DFAT assesses that there is no official discrimination against Tamils and they can freely participate in political life. As already noted, I have given the assessments made by DFAT about these matters significant weight. While there is evidence in the 2019 DFAT Report and the recent UK Home Office reports to the effect that Tamils living in the north and east may face low-level monitoring, I am not satisfied that the nature of monitoring described could not be characterised as ‘serious harm’. Low level monitoring or questioning by Sri Lankan authorities does not on its own amount to “significant physical harassment or ill-treatment”. It is also relevant to note the applicant did not reside and work in the Northern and Eastern Provinces but in the North Western Province. There is no evidence that Tamils living in the North Western Province have been targeted for monitoring or that there is a significant military presence in this region compared to the Northern and Eastern Provinces where most of the Tamil population resides.

154.One of the main difficulties identified for Tamils appears to be that there are limited employment opportunities, particularly in the regional areas and in the Northern and Eastern Provinces. The limited employment opportunities are not related to Tamil ethnicity but rather the nature of the work and the lack of industry in these regions. Sri Lanka is an upper middle-income country. Relevantly, unemployment and poverty rates are relatively low and extreme poverty is rare. Overall, Sri Lanka's "social and human development indicators are among the best in South Asia".[68] As such, there is no evidence that Tamils are unable to subsist, nor is there evidence that there are laws or official policies directed to this.

[68] 2019 DFAT Report generally at [2.9] to [2.20].

155.Accordingly, I am not satisfied that the applicant will be persecuted because he is a Tamil.

156.Given my findings about the applicant and his circumstances in Sri Lanka before he left, I am not satisfied he would be perceived by authorities to be a potential security risk or that he would be a person that Sri Lankan authorities would target for questioning, investigation or monitoring on his return. Relevantly, I am not satisfied that the applicant would be perceived by authorities as a high-profile former LTTE member or even a low level former LTTE participant. I am therefore not satisfied that he will be targeted and monitored on his return, other than possibly low-level routine monitoring when he first returns to his home in the North Western Province. I am not satisfied that there is evidence the applicant is or would be the subject of a CID watch list and there is no evidence that the applicant has a criminal record or an arrest warrant against him.

157.Accordingly, I am not satisfied that the applicant would be considered by Sri Lankan authorities to have a political opinion or imputed political opinion that would make him the subject of torture, harassment and other forms of persecution. I accept that the applicant’s brother in law and his friend may have previously had an association with the LTTE and that they were investigated and prosecuted for attempting to leave Sri Lanka illegally. The documents provided by the applicant at the hearing corroborates this claim. However, these documents do not support the claim made by the applicant that his brother-in-law was being further investigated in 2016 and fled Sri Lanka because of this. Indeed, the fact that the applicant’s brother-in-law was in Sri Lanka until 2016 when his prosecution was finalised with a fine, seems to be counter to this claim.

158.Even if I were to accept the applicant’s claim that his brother-in-law had since left Sri Lanka illegally, it is difficult to see how this would implicate the applicant or expose him to further claims or investigations by Sri Lankan authorities. The applicant’s evidence is to the effect that he has had no recent contact with his brother-in-law and did not know his whereabouts. Further, and as already noted, the applicant’s evidence that his mother told him that the CID put him on a list to link him with his brother-in-law is speculative and itself carries little weight. Having regard to the applicant’s profile and the available country information, I am therefore not satisfied that there is a real chance the applicant will persecuted or tortured and imprisoned on his return by reason of these matters.

159.While I accept that there may be issues for Muslims, I am not satisfied that there is evidence that the applicant would be perceived to be a Muslim simply because he is a Tamil. The applicant’s representative could not point to any country information to support this contention nor was there any country information reviewed to this effect. As such, I am not satisfied that there is a real chance that the applicant will face persecution on this ground if he returns to Sri Lanka. Similarly, I am not satisfied that there is a real risk the applicant will suffer serious harm because he is a practising Christian. The available country information country information is to the effect that there may be such a risk if the applicant was an evangelist but there is no evidence of this.

160.The final issue to consider is whether there is a real risk the applicant will suffer serious harm as a failed Tamil asylum seeker who left Sri Lanka illegally and is being deported from a Western country. As I understand these claims, they are made individually and cumulatively.

161.Having regard to the most recent country information, I am satisfied that when the applicant is deported, it is likely he will be given some emergency documentation and he will be questioned by both immigration and CID officials at the airport. I have found that the applicant does not have the type of profile where he would be arrested, detained and interrogated at the airport or when he returns to the North Western Province because he is a Tamil or because he is imputed to have an association with the LTTE or because he has a record. Nor is there country information to the effect that returning from a Western country would expose the applicant to greater scrutiny or questioning. Because I am not satisfied the applicant has the relevant profile to attract the interest of authorities or that he is on a CID watch list, I find that it is likely he will either be released or charged under the I & E Act for having left Sri Lanka illegally. Notably, the country information from DFAT and the UK Home Office, which I have found to be cogent and authoritative, suggests that failed returning Tamils asylum seekers who return are not treated differently from other returnees who have left illegally. In other words, there is no evidence that the I & E Act is applied in a discriminatory manner towards returning Tamils or returning Tamils that may be perceived as having an association with the LTTE or Tamils who are returning from a Western country.

162.According to the country information from both DFAT and the UK Home Office, if the applicant is charged under the I & E Act he would be bailed to subsequently appear before the Court. The applicant may be detained for a brief period before appearing in front of the Court but there is no evidence that he would be treated any differently in this regard from other returning Sri Lankans who have left Sri Lanka illegally. On the material before me, I am satisfied that the I & E Act is applied as a law of general application.

163.If the applicant is charged and pleads guilty, the relevant country information suggests the applicant will be fined a modest amount, which the applicant would be permitted to pay by instalments. There is no evidence before me that the applicant would be unable to pay a modest fine. He has close connections with his family and, on his own evidence, he was able to pay his brother-in-law’s fine.

164.Given the applicant’s circumstances and having regard to the material before me, I am satisfied that after any issues regarding the I & E Act are resolved, the applicant will be able to return to live with his family in the North Western Province and will be able to continue, if he wishes, his previous occupation of catching and selling fish. He may need to apply for a licence to be able to do this and there is no evidence that he would be prohibited from doing so. The applicant’s evidence at the hearing was to the effect that he did not believe that he should have to apply for a licence, although he agreed that he could have, in circumstances where Sinhalese fishmen did not need to do so. I do not know whether this is correct but note that this evidence from the applicant discloses the nature his objections about what occurred over eight years ago.

165.For the reasons outlined above, I am not satisfied that there is a real risk the applicant will be persecuted based on any of the grounds set out in the Refugee Convention. Nor am I satisfied that the cumulative effect of any of those matters would expose the applicant to a real risk of harm.

166.Accordingly, I am not satisfied that the applicant meets the refugee criterion in s. 36(2)(a) of the Act.

Complementary Protection claims

167.Because I have concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, I must now consider whether the complementary protection criterion in s.36(2)(aa) of the Act is engaged. The claims made are based on the same grounds as those claimed in respect of the refugee criterion.

168.For the reasons already outlined, I am not satisfied that the applicant will be tortured or detained in a Sri Lankan prison because of any outstanding warrants for perceived associations with the LTTE or under the PTA but I accept that on his return to Sri Lanka the applicant may be questioned and charged under the I & E Act. I also accept that he may be detained briefly at the airport while waiting to be brought before the Court but I am not satisfied that any treatment that he will experience as a result of this would fall within the definition of “significant harm”, which is exhaustively defined in s. 36(2A) of the Act. There is no evidence that, if charged under the I & E Act, the applicant would be arbitrarily deprived of his life, that he would receive the death penalty, that he would be subjected to torture or that he would be subjected to cruel or inhuman or degrading treatment or punishment. While I accept that prison conditions in Sri Lanka are generally poor and overcrowded, detention in and of itself does not amount to cruel or inhuman or degrading treatment or punishment.

169.There is no case law or legislative definitions providing guidance on what is meant by the words “cruel”, “inhuman” and “degrading” treatment but I have taken into account the guidance set out in Procedural Advice Manual 3 ‘Refugee and humanitarian - Complementary Protection Guidelines’. Relevantly those Guidelines provide as follows at [3.4.8.3]:

… Detention is not, of itself, a breach of Article 7, although particularly harsh conditions of detention may constitute a violation of Article 7. Prison conditions may constitute cruel, inhuman or degrading treatment or punishment if they seriously or systematically deprive a detainee of human dignity.

As with all types of torture and cruel, inhuman or degrading treatment or punishment, a minimum level of severity is necessary in order for a person’s detention to breach Article 7. The assessment of this minimum depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical or mental effects, and, in some instances, the gender, age, state of health or other status of the victim.

…..

If an applicant claims that they face a disproportionately lengthy period of time in prison, this should be considered as a cumulative factor that may render other conditions they will face cruel, inhuman or degrading. For example, overcrowding in a cell for a person detained overnight may not breach Article 7, but may do so if they face a lengthy prison sentence…..

170.This guidance is consistent with the ordinary meaning of the words.

171.According to the 2019 DFAT Report, DFAT is not aware of detainees at the airport pending court appearances being mistreated. Nor did the UK Home Office report this, which is significant given it conducted a fact-finding mission in late 2019 in which its officers specifically focused on this issue. The applicant did not provide any country information to the effect that there was or would be such mistreatment. In summary, there is no material before me to suggest that the applicant would face treatment or punishment that is cruel, inhuman or degrading if detained at the airport for up to two days or that there is something particular to his circumstances would make his detention of such a nature. I accept the applicant may be anxious about being detained but there is no claim, or evidence to support such a claim, that the applicant’s mental health is such that detention would amount to cruel, inhuman or degrading treatment in his circumstances.

172.It is also relevant to note that for harm to amount to torture or inhuman and degrading treatment or punishment, it must be intentionally inflicted by the perpetrator, in this case the Sri Lankan government and authorities at the airport, including CID officials. According to the High Court in SZTAL v Minister for Immigration and Boarder Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34, the meaning of intentionally inflicted and intentionally causing requires an actual, subjective intention on the part of the perpetrator to inflict severe pain or suffering. There is no material before me that suggests the treatment of detainees at the airport through overcrowding or poor conditions is anything other than the result of insufficient resources. As such, the requirement that the treatment be intentional would not be satisfied in this case in any event.

173.Accordingly, based on the material before me I am not satisfied that there is a real risk the applicant would be subjected to cruel or inhuman or degrading treatment or punishment if he was held on remand at the airport pending his court appearance.

174.For the reasons outlined above, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk he will suffer significant harm.

CONCLUSIONS

175.For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. As such, I am not satisfied the applicant meets the criterion set out in s.36(2)(a) of the Act.

176.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, I have considered the alternative criterion in s.36(2)(aa) of the Act. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

177.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) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Protection visa.

Jan Redfern PSM
Deputy President