1804989 (Refugee)

1804989 (Refugee) [2021] AATA 639 (1 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1804989
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Jason Pennell
DATE:1 March 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 1 March 2021 at 10.36am

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Court remittal – ethnicity and imputed political opinion – brother conscripted by Tamil Tigers and missing believed dead since end of war – applicant living in internally displaced persons camps because of war and tsunami – abuse, forced menial labour, questioning and beating by soldiers and CID – fear of forced recruitment by Tamil Tigers – member of particular social group – failed asylum seeker – mental health – credibility – vague evidence – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5J(5), 36(2), 65, 91R(1)(a), 91S
Migration Regulations 1994 (Cth), Schedule 2
CASES
Calado v MIMA (1998) 81 FCR 450
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Y [1998] FCA 515
Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Saliba v MIMA (1998) 89 FCR 38
SZQPA v Minister for Immigration [2012] FMCA 123
Welivita v MIEA (unreported, Federal Court of Australia, Lindgren J, 18 November 1996)
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
2.The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 6 November 2012 and the delegate refused to grant the visa on 8 July 2013. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s36(2)(b) and s36(2)(c) of the Act.
3.The applicant lodged an application for review of the delegate’s decision to the Refugee Review Tribunal (the RRT) on 15 July 2013. The RRT[1]affirmed the delegate’s decision on 13 January 2015.
[1] RRT Case No 1309841
4.The applicant lodged an application for judicial review to the Federal Circuit Court of Australia [in] February 2015. The court dismissed the application [in] August 2016 and the applicant lodged a further appeal to the Federal Court [in] September 2016.
5.[In] February 2018 the Federal Court of Australia ordered that the decision of the First Tribunal be quashed and for the Tribunal to make another determination on the application for review of the delegate’s decision. The Minister for Immigration and Border Protection (the Department) conceded that the First Tribunal committed jurisdictional error by failing to consider the claim made by the applicant that he was at risk of serious or significant harm because he would be abducted by the Tamil Tigers[2].
[2] Federal Circuit Court order, AAT File No [1804989]
6.The applicant appeared before the Tribunal on 14 September 2020 to give evidence and present arguments. At the time of the hearing due to the COVID-19 pandemic the Tribunal hearing was held by videoconference facilitated by the Microsoft Teams application under section 33A of the AAT Act and in accordance with the President’s Special Measures Practice Direction issued by the President under section 18B of the AAT Act and dated 27 April 2020. At the time of the hearing government restrictions it was not possible to conduct an in-person hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
7.The applicant was represented in relation to the review by his registered migration agent.

RELEVANT LAW

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

Refugee criterion

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

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

Complementary protection criterion

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Mandatory considerations

In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36 (2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Migration History

The applicant arrived in Australia at Christmas Island [in] July 2012 on an unauthorised vessel and was detained as an Irregular Maritime Arrival. Prior to arriving in Australia, the applicant had not travelled outside of Sri Lanka. The applicant was detained upon arrival in Australia and released when granted a bridging visa E on 11 October 2012[3].
[3] Department ICSE records

Applicants Identity and Country of Reference

The applicant claims that he was born on [Date 1] in [Town], Jaffna, [District], North Province, Sri Lanka[4]. He claims that he is of Tamil ethnicity and a Christian.[5] In support of his identity the applicant provided the former Department of Immigration and Citizenship (the Department) with copies of his fishing licence, national ID card, birth certificate (together with birth certificates of members of his family) and a human rights complaint dated March 2011.[6] The copies of these documents were provided to the Tribunal in Sinhalese without any translation being provided. Nevertheless, there is no evidence to suggest that the applicant was not of Tamil ethnicity. As such, based on the applicant’s own evidence the Tribunal accepts that he is a Tamil as claimed. There was no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country.
[4]    Department decision record dated 8 July 2013; Refugee Review Tribunal File (RRT) File No1309841 @ f.15; Applicants ‘Statement of Claims’ dated 29 October 2012 Dept File No [Number] @ f.47
[5]    ibid
[6]    Applicants ‘Statement of Claims’ dated 29 October 2012; Applicants application for Protection Visa dated 6 November 2012. Dept File No [Number] @ f.114-129
Therefore, based on the document provided by the applicant, the Tribunal finds and accepts that he is a citizen of Sri Lanka and as such his protection claim will be assessed against Sri Lanka as the country of reference and ‘receiving country’ respectively.

Claims for protection and supporting documentation

The applicant first submitted claims for protection when he applied to the Department for protection. His responses are as follows[7]:
[7] Applicants ‘Statement of Claims’ dated 29 October 2012; Dept File No [Number] @ f.47
Why I left my country
I left Sri Lanka because my life was in danger.
In 2007, before the civil war between the Sri Lankan Army and the Tamil Tigers was over, my brother, [Mr A] was forcibly conscripted by the LTTE to fight. The LTTE would force at least one family member to fight the Sinhalese. The last time my family saw [Mr A] was with the LTTE unit about March 2009.
My family wanted him to leave the LTTE and I believe he wanted to leave too. After the civil war, [Mr A] told my family that he would not return home as it was too dangerous for the other family members.
Prior to May 2010, I was living in three separate camps established for Displaced Persons established for victims of the 2004 tsunami. One of the camps at [Location 1] was controlled by the Sri Lankan Army. During those years, it was very intimidating as there were soldiers everywhere, traveling around was very restricted and the soldiers only spoke Singhalese. Often the soldiers would make young men like me do chores like cleaning the camp of litter.
I was finally let out of the camps in 2010. This was about a year after the civil war had officially finished.
I lived in [Location 2]. There was a school close to the house where I was living. On 27 November 2011, a flag of the Tamil Tigers was raised to commemorate the birthday of the founder of the Tamil Tigers. This date is used to commemorate those Tamil who died fighting the Sri Lankan army.
This upset the local Sri Lankan soldiers and the Sri Lankan Central Investigation Department (CID). Someone - and I don't know who - told the CID that I was involved. The CID stopped me in the street and asked me to come with them to the CID the next day.
The following day I went to the office. Three CID officials interviewed me in a room. They asked me about raising the Tamil Tiger flag at the school. I told them that I was not responsible.
The CID officials did not believe me because they had heard it from eyewitnesses. I told the CID that I was fishing that day and asked them to examine the records of the fisherman's co-op as evidence. I also said that I was stopped at several checkpoints by the army for work and had my name taken down by the officials along the way.
The CID still did not believe me. That is when they started hitting and punching me all over my body. Then they would stop and ask questions again. They would accuse me of lying and then start hitting me.
The CID officials would insult me by calling me a Tamil dog. The questions were in Tamil but they would say something in Singhalese and then laugh at me in a ridiculing way. This lasted about 45 minutes.
The CID asked me about being a member of the Tamil Tigers and I told them that I was not. They did not believe me. Then they asked me signed a statement. I do not know what it said as it was in Sinhalese. The CID officials took down all my ID information. After this they let me go.
In May 2012, the Sri Lankan Anny asked me to attend their offices in [Location 3]. I went to the offices the next day. I was afraid of going but it was no use avoiding them as they had the area surrounded. If I had not attended, I would definitely be targeted as a suspected LTTE supporter.
The Sri Lankan army told it had received a letter that had identified me as an LTTE fighter. The letter was not shown to me. I denied I had even been a supporter and that I was a fighter. The soldiers called me a liar and started hitting and punching me. I told them to interview my neighbours and to gain some evidence.
I told the soldiers that my brother, [Mr A] had been in the LTTE but I had not. I hoped they understood that the LTTE only recruited one family member. I told them my brother is missing and I was not aware if he was alive or dead.
The soldiers who were interrogating me told me that if am arrested again that they will claim that I had weapons to fight the army and I would be kidnapped for being a terrorist. I knew this meant that I would disappear and be killed.
Again this interrogation and torture lasted about 45 minutes.
Because of the threat to kill me and because of the likelihood of being accused and arrested again, I decided to leave Sri Lanka for Australia where human rights were respected.
My two other brothers, [Mr B] and [Mr C], had also been harassed and interrogated by the CID and the Sri Lankan Army. They have since left my country for Australia.
There is one more incident I want to tell. Before I left for Australia, The CID called my family. The CID claimed they had my brother who had been fighting in a detention camp. These corrupt CID officials were demanding money to have him released. My family were unsure about this truth of this. Nevertheless, we did not provide some of the bribe
Since I have left, the CID and the Army have been asking about my whereabouts. The Army went to my house to ask for me; the CID has been asking my friends in the village.

What I fear may happen to me in my country.
l fear I will be seriously harmed or killed by the Sri Lankan government or affiliated parties (including the Sri Lankan Army and Central Investigations Department) if I were to return to Sri Lanka as I am Tamil and I have been imputed with a pro-LTTE profile.
I fear that my family and I are perceived as supporters of the Tamil Tigers and the authorities are targeting us because of the involvement of my brother, [Mr A], in the LTTE.
Do I think the authorities of my country can and will protect me and or my accompanying family members, where applicable, if I/ we were to go back.
No because it is the Sri Lankan authorities that I fear persecution from.

The CID and the military have records of me. The Army has threatened me as a suspected LTTE sympathise and the CID is asking my family and me for money to release my brother from detention camp.
Since leaving Sri Lanka, the CID and the Army have been visiting my family and neighbours asking for my whereabouts. Two of the six times has been in 2012. This demonstrates that authorities are still looking to arrest me and seriously harm me as a supporter of the LITE.
Do I think that there is a place in that country where I could be safe?
There is 'no place safe for me in Sri Lanka as the CID and the Army are actively seeking me. I would be arrested on arrival for interrogation and torture and I fear the Army will kill me as they have threatened to do.
The Sri Lanka government does not offer any effective protection for me as·it continues to persecute Tamils and those who are suspected of supporting the Tamil Tigers. I would be at serious risk of harm ifl was forced to return.
Other reasons I cannot return to my home country - Complementary protection
For the reasons I mentioned above, I fear I will be arbitrarily deprived of my life, imprisoned, punished or tortured. I also fear cruel, degrading and inhuman treatment, if I am forced to return to Sri Lanka.

The delegate[8] summarised the applicant’s claims as follows:
[8] Department Decision Record dated 8 July 2013; RRT File No1309841 @ f.12.
a.The applicant is an ethnic Tamil and his religion is Christian
b.The applicant’s brother was forcibly conscripted by the Liberation Tigers of Tamil Eelam (LTTE) in 2007 to join them and fight. After the war was over he informed his family that he would not return home because it was too dangerous. They have never heard from him since.
c.The applicant and his family were displaced from their home following a Tsunami in 2004 and again following the fighting that ensued between the government and LTTE in 2009. They moved to various camps established for displaced people but were resettled in 2010 in [Location 2].
d.The applicant was accused of raising the flag of LTTE in a nearby school to commemorate the birthday of the founder of the Tamil Tigers in November 2011. He claimed he was fishing at the time and informed the CID of this when they questioned him. He claimed he was verbally abused and beaten but allowed to leave.
e.The applicant claimed he was asked to attend the Sri Lankan Army (SLA) offices in May 2012 where he was accused of being an LTTE fighter. The army he claimed stated there was a letter identifying him. He was beaten and threathened that the next time he was arrested he was accused of having weapons to fight the army and kidnapped for being a terrorist. He stated that the authroties had looked for him on at least 6 occasions, the last 2 being in 2012
f.He stated his 2 remaining brothers have also been harassed and interrogated by the army and CID and have since left Sri Lanka to come to Australia as well.
g.He claimed that prior to his leaving for Australia his family were called by the CID and told if they paid a ransom, their missing son and brother would be released. He claimed that since he left Sri Lanka the army have come looking for him.
h.The applicant fears he will be seriously injured or killed by the Sri Lankan Army SLA, CID or the government.
The delegates decision[9] also notes that in the applicant’s PV interview he provided the following additional information:
[9] Department Decision Record dated 8 July 2013; RRT File No1309841 @ f.12
a.The applicant said his brother joined LTTE in March 2009 when they last saw him. He went to fight with the LTTE
b.He confirmed the dates and incidents that had occurred with the army and CID
c.The applicant stated there were others who had been harassed as well but he didn’t give any names. Later he admitted he wasn’t aware of any others who were questioned.
d.The applicant stated he wasn’t sent for rehabilitation for being suspected of having links to the LTTE and the 2 times he was questioned he was released after about an hour. He felt they may not release him if he was taken for questioning again
e.The applicant claimed if he was returned to Sri Lanka, he would be suspected of being a sympathiser of the LTTE. He did not believe the authorities there could protect him
f.The applicant stated that he applied for a passport in 2010 and didn’t have any problems obtaining one. He claimed he lost it in 2010 during resettlement when he lost his bags
g.He claimed he has been forced to move around since a child and Tamils have no independence or protection. He fears he may be taken by the Tigers if he returns as each family member must contribute 1 person. There is ‘no confidence in our lives’ living in Sri Lanka as a Tamil and no one seems to understand the problems
The applicant has provided the following material to the Tribunal[10]:
[10] Tribunal file, case 1804989, Doc ID: 7497414
a.A submission of claims made on behalf of the applicant by his representative, [Ms D], dated 24 July 2020
b.A letter from [Rev. Fr. E] of [Church 1] in support of the applicant dated 22 April 2015
c.A character reference from [Rev. F] of [Church 2] in support of the applicant dated 18 June 2019
d.NAATI certified translation of a media article written on 14 January 2020 titled ‘Kothabaya frees Sri Lankan Army man who murdered eight Tamils slitting their throats’, accompanied by the untranslated article
e.NAATI certified translation of a media article written on 4 March 2020 titled ‘Family man arrested by department of Prevention of Terrorism in Vadanaaradchy East’, accompanied by the untranslated article
f.NAATI certified translation of a media article written on 5 March 2020 titled ‘Newly emerging military check points in the streets of Mullivakkal; people in fear’, accompanied by the untranslated article
g.Screenshot of an article published by TamilNet on 30 December 2019 titled ‘Sinhalese have right of return to North, says lawyer from South rejecting Tamil rights’
h.Screenshot of an article published by The Hindu news on 22 July 2020 titled ‘This Independence Day, the anthem may not be sung in Tamil’
i.Visa grant notice of a Protection (class XD) Temporary Protection (subclass 785) granted to [Mr B] on 18 June 2016
j.NAATI certified translation of a message form from Sri Lanka police dted 11 June 2016
The applicant provided the RRT the following material:
a.A submission of claims made by the applicant’s then representative, [Mr G] dated 20 February 2014[11]
[11] Tribunal file, case 1309841, ff. 45-67
b.A further submission of claims made on behalf of the applicant by [Law firm] dated 27 October 2014[12]
[12] Ibid. ff. 81-118
c.A letter from [Rev. Fr. E] of [Church 1] in support of the applicant dated 7 August 2013[13]
[13] Ibid. f. 130
d.A letter from [an] M.P. in support of the applicant dated 22 August 2013[14]
[14] Ibid. f. 131

Applicant’s evidence

The applicant was born on [Date 1] in [Town], Jaffna, [District], North Province, Sri Lanka[15]. He is of Tamil ethnicity, a Christian and unmarried.[16] The applicant’s parents continue to live in Sri Lanka. The applicant is one of [a number of] children. His parents and [a number of] of his siblings continue to live in [Village 1], Sri Lanka, a village close to his hometown of [Town]. The applicant has two bothers living in Australia, [Mr B] (known as [Mr B alias]), born on [Date] and [Mr C] (known as [Mr C alias]), born on [Date]. [Mr B alias] and [Mr C alias] fled to Australia by boat a month after the applicant.
[15] Department Decision Record dated 8 July 2013; RRT File No1309841 @ f.12
[16] Op Cit @ p.2, RRT File No1309841 @ f.12, Applicants submissions dated 24 Jul 2020 @ p.2
The applicant’s older brother [Mr A] (known as [Mr A alias]) was a member of the Liberation Tigers of Tamil Eelam (‘LTTE’) and [worked for] a naval commander known as Colonel Soosai. This was the name given to Thillaiyampalam Sivanesan (‘Soosai’) who was the head of the ‘Sea Tigers,’ the naval wing of the LTTE. The country information[17] reports that Soosai was killed on 18 May 2009, the last day of the war. [Mr A alias] went missing in or about March 2009. The applicant claims that his brother’s disappearance was reported to the Human Rights Commission, but he states that many Tamil disappeared during the civil war and in its aftermath he and his family hold no hopes of finding [Mr A alias].[18] The applicant and his family believe that [Mr A alias] was killed with Soosai.[19]
[17] Applicants submissions dated 24 Jul 2020 @ p.2
[19] ibid
The applicant attended school in Jaffna completing O levels (year 11). The applicant claims that he did not continue his education due to the Civil War in Sri Lanka.[20] After school the applicant worked as a fisherman. After arriving in Australia, the applicant has worked as [an Occupation] but at the time of the hearing was not employed due to the Covid-19 restrictions.[21]
[20] Applicants submissions dated 24 Jul 2020@ p.1
[21] ibid
The applicant claims that he and his family were displaced by the civil war and the 2004 tsunami.[22] He claims that they lived in displaced persons camps and were moved to a camp in [Location 2] in or about May 2010. The area in which the camp was located was controlled by the Sri Lankan Army (SLA). The applicant claims while he was in the camp he was regularly abused and humiliated. He claims that he was called a Tamil dog and made to perform menial and dirty tasks in the camp.
[22] ibid
The applicant claims on or about the 27 November 2011, a LTTE flag was raised in [Location 2] to commemorate the birthday of the LTTE founder, Velupillai Prabhakaran. This date also commemorates those Tamils that lost their lives fighting with the LTTE.[23] The applicant claims that the army were angry by this act and that he was wrongly accused by the CID of being involved in the commemoration. The applicant claims that he was fishing at the time of the commemoration. His evidence was that his location could have been verified as he was required to pass through several SLA checkpoints at which his details were noted. Nevertheless, his evidence was that he was interrogated by the CID during which he was punched. The applicant’s evidence was that he was interrogated for approximately 45 mins before being was released. The applicant claims that during the interrogation he denied being a member of the LTTE but explained to the officers that his brother had been involved with the LTTE [and worked] for Soosai. The applicant, otherwise, did not provide the Tribunal with any specific details of the interrogation including questions asked by the CID about his brother.
[23] ibid
The applicant’s evidence was that he did refer to the fact that he had informed the CID of his brother’s involvement with the LTTE at the November interrogation, in his protection application because upon his arrival at Christmas Island he had been told by an interpreter that the LTTE are banned in Australia and that he should not disclose this fact as he will be put in jail.
The applicant claims that as a result of the November interrogation there was a mark on his record. Nevertheless, it was his evidence that he was not threated or interrogated from November 2011 until May 2012.
In or about May 2012 the applicant claims he was living in [Location 4], Sri Lanka. His evidence was that at this time he was contacted by the SLA and summoned to attend an interview. The applicant was not able to specifically say how he was contacted the SLA. Initially he stated that at that time there was a lot of SLA personal in the area and therefore a person from the SLA ‘probably’ came to his home to tell him about the meeting. The applicant then stated that he was ‘most likely’ told by the SLA to attend the interview ‘on the road somewhere’ close to his home. The applicant was not able to recall when he was approached by members of the SLA to inform him of the interrogation or where on the road, he received the message. In addition, the applicant was not able to inform the Tribunal how he was identified by the SLA to tell him about the interrogation.
The applicant stated that he travelled alone to the SLA Military Camp to attend the interview. However, he was not able to tell the Tribunal how he travelled to the interview but stated that it would have ‘probably’ been by bicycle. The applicant’s evidence was that he was interrogated by the SLA for approximately 45 mins before being released.
He claims that during the interrogation he was punched, hit and accused of being an LTTE fighter. His evidence was that during the interrogation he mentioned that his brother was a member of the LTTE and [worked] for Soorai but denied that he was a member or a supporter of the LTTE. His evidence was that the SLA ‘would have asked him’ about his brother and his involvement with the LTTE. The applicant claims that he was told by the SLA that if he was arrested again, he would be accused of having weapons to fight the SLA and kidnapped for being a terrorist.[24]
[24] Op Cit @ p.3
The applicant’s evidence to the Tribunal was that he did not received any threats and was not interrogated further from May 2012 until his departure for Australia in July 2012. However, the applicant claims that as a result of his brother’s involvement in the LTTE he continued to be monitored and investigated by the SLA. The applicant did not offer any supporting evidence in relation to this claim. He claimed that as a result of being monitored he was unable to live in Sri Lanka with any peace of mind.
In addition, the applicant claims that he fears he will be kidnapped by the LTTE if he returns to Sri Lanka.[25] However, the applicant did not provide any evidence in support of his claim that the LTTE would kidnap him if he was returned to Sri Lanka.
[25] ibid

COUNTRY INFORAMTION

The Tribunal in accordance with the Ministerial Direction No 84 made under s.499 of the Act the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT). The Tribunal has considered the DFAT report on Sri Lanka dated 4 November 2019 (‘the DFAT Report’). In particular, the Tribunal has taken into consideration those parts of the DFAT report relevant to the applicants claims as reproduced in Appendix A of this decision.

CONSIDERATION OF CLAIMS AND EVIDENCE

Credibility

When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant will answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[26]. Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[27]
[26] s.5AAA Migration Act 1958.
[27] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[28] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
[28] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482.
If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[29] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.
[29] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.

Accepted facts

Based on the oral evidence provided at the hearing together with the information contained his protection visa application, the Tribunal accepts and finds that the applicant:
(a). was born on [Date 1] in [Town], Jaffna, [District], North Province, Sri Lanka.[30]
[30] Department Decision Record dated 8 July 2013; RRT File No1309841 @ f.12
(b)is of Tamil ethnicity, a Christian and unmarried.[31]
(c)attended school in Jaffna completing O levels (year 11) after which he worked as a fisherman.
(c)is one of [a number of] children.
(d)parents and [a number of] of his siblings continue to live in [Village 1], Sri Lanka (close to his hometown of [Town]).
(e)has two brothers, [Mr B alias] and [Mr C alias], who fled to Australia by boat a month after the applicant Australia and now live in Australia.
(f)had an older brother, [Mr A alias], who was forcibly conscripted by the LTTE in 2007. The applicant’s family have not heard from him and have no knowledge if he is alive or dead.
(b)with his family were displaced from their home following a Tsunami in 2004 and after the civil war in 2009. They moved to various camps established for displaced people but were resettled in 2010 in [Location 2].

Applicant’s Refugee Claim
Relevant grounds
[31] Op Cit @ p.2, RRT File No1309841 @ f.12, Applicants submissions dated 24 Jul 2020 @ p.2

The applicant claims to have a well-founded fear of persecution within the scope of s.91R(1)(a) of the Act by reason of race, as a Tamil, his political opinion as a perceived supporter of the LTTE, and as a member of a particular social group (PSG) as a failed asylum seeker.
In Calado v MIMA[32] the Court in considering the expression of ‘race’ stated that it was appropriate to consider the “popular” understanding of the term that accords with a person’s physical appearance, skin colour and ethnic origin.[33] The court stated:
[32] Calado v MIMA (1998) 81 FCR 450 at 455.
[33] ibid
‘There can be no single test for the meaning of the expression “race” but the term connotes considerations such as whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of colour, and national or ethnic origins.’
In addition, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status also refers to the expression of ‘race’ in the broadest of terms stating:[34]
[34] Chan v MIEA (1989) 169 CLR 379 at 392, per Mason CJ. UNHCR Handbook on Procedures and Criteria for Determining Refugee Status @ [68]; Race, in the present connexion, has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as “races” in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population. Discrimination for reasons of race has found world-wide condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution.’

In this case the Tribunal has accepted and found that the applicant is from Sri Lanka and a Tamil. Accordingly, the Tribunal finds that the applicant’s claims do fall within the scope of ‘race’ as a refugee ground, and that his claim falls within s.91R(1)(a) of the Act.
In addition, the applicant submits that his claims fall within the scope of s.91R(1)(a) of the Act by reason his imputed political opinion. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status[35] states that:
‘80.Holding political opinions different from those of the Government is not in itself a ground for claiming refugee status, and an applicant must show that he has a fear of persecution for holding such opinions. This presupposes that the applicant holds opinions not tolerated by the authorities, which are critical of their policies or methods. It also presupposes that such opinions have come to the notice of the authorities or are attributed by them to the applicant…………………….
86.In determining whether a political offender can be considered a refugee, regard should also be had to the following elements: personality of the applicant, his political opinion, the motive behind the act, the nature of the act committed, the nature of the prosecution and its motives; finally, also, the nature of the law on which the prosecution is based. These elements may go to show that the person concerned has a fear of persecution and not merely a fear of prosecution and punishment - for an act committed by him.[36]’
A political opinion need not be an opinion that is held by the refugee. It is enough that an opinion is imputed to an applicant.[37] In Saliba v MIMA[38] the Court held:
‘... for Convention purposes, a claimant’s political opinion need not be expressed outright. It may be enough that a political opinion can be perceived from the claimant’s actions or is ascribed to the claimant, even if the claimant does not actually hold the imputed opinion.’[39]
[35] Chan v MIEA (1989) 169 CLR 379 at 392, per Mason CJ. UNHCR Handbook on Procedures and Criteria for Determining Refugee Status @ [80]-[86]; Paragraphs 84-86 of the Handbook were cited with approval in Welivita v MIEA (unreported, Federal Court of Australia, Lindgren J, 18 November 1996).
[37] MIEA v Guo (1997) 191 CLR 559 at 571 referring to Chan v MIEA (1989) 169 CLR 379 at 416 per Gaudron J and at 433 per McHugh J.
[38] Saliba v MIMA (1998) 89 FCR 38 at 49.
[39] Saliba v MIMA (1998) 89 FCR 38 at 49.
In MIMA v Y, Davies J noted that ‘[t]he words “political opinion” are ordinary words of the English language and have not been the subject of judicial exposition limiting their meaning in the context of the Refugees’ Convention’.[40] The court held:
‘In the context of the Refugees’ Convention, an opinion could be thought to be a political opinion if it were such as to indicate that its holder ... held views which were contrary to the interests of the State, including the authorities of the State. A person may be regarded as an enemy of the State by virtue of holding and propounding views which are contrary to the views of the State or its Government, or which are antithetic to the Government and the instruments which enforce the power of the State, such as the armed Forces, Security Forces and Police Forces or which express opposition to matters such as the structure of the State or the territory occupied by it and like matters.’[41]
[40][1998] FCA 515 (Davies J, 15 May 1998) at 4.
[41]MIMA v Y [1998] FCA 515 (Davies J, 15 May 1998) at 5.
The applicant evidence was that his elder brother joined the LTTE in or about 2007. He claimed that at that time a person from each family was required to join the LTTE. He claimed that if his brother had not joined the LTTE the next eligible family member (his brothers or himself) would have been required (or forced) to join. Therefore, his brother being eldest ([number] years older than the applicant) joined the LTTE. The applicant’s evidence was that he personally had never been a member and was not involved with the LTTE. The applicant provided a letter dated 22 April 2015 from [Rev Fr E] of [Church 1] in [Kilinochchi], Sri Lanka which states that the applicant’s brother was forcibly recruited t the LTTE. As a result, the Tribunal accepts and finds that the applicant’s brother was a member of the LTTE as claimed.
The applicant claims that as a result of his brother’s involvement with the LTTE he has been imputed with the political opinion of being a supporter of the LTTE and as such his claim falls within the scope of s.91R(1)(a) of the Act. For the reasons expressed below the Tribunal does not accept that the applicant has been imputed with the political opinion of being a supporter of the LTTE as claimed.
Finally, the applicant claimed that he was a member of a PSG as a failed asylum seeker. In Applicant A (1997) 190 CLR 225, Dawson J summarised the determination of whether a group is a ‘particular social group’ as follows:
(a)the group must be identifiable by a characteristic or attribute common to all members of the group;
(b)the characteristic or attribute common to all members of the group cannot be the shared fear of persecution; and
(c)the possession of that characteristic or attribute must distinguish the group from society at large
In this case, the Tribunal has some reservation that as a failed asylum seeker constitutes an identifiable characteristic that could be considered to distinguish the applicant and the group from society at large. Nevertheless, for the purposes of this decision, the Tribunal is prepared to accept that the applicant is a member of a PSG as claimed. As such, the Tribunal accepts that the applicant is a member of a PSG pursuant to s.91R(1)(a) of the Act.

Applicant’s well-founded fear

In Chan v MIEA[42] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Dawson J noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[43]
[42] (1989) 169 CLR 379 at 396.
[43] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case, based on the evidence of the applicant, the Tribunal does not accept that the applicant has a subjective fear of being persecuted if he is returned to Sri Lanka.
However, to hold a ‘well-founded fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J stated:[44]
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.
[44] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397

In MIEA v Guo, the Court stated that:[45]
‘Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is ‘well-founded’ when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’
[45] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
The applicant claims that, in the event he is returned to Sri Lanka, there is a real chance he will suffer serious harm as a result of his race, political opinion and as a member of a PSG. While the Tribunal is prepared to accept that the applicant may hold a subjective fear, for the reasons expressed below, it does not accept that he has an objective fear of persecution for a reason mentioned in s.91R(1)(a) of the Act.

Applicant’s Claim as a Refugee

While the Tribunal is prepared to accept some elements of the applicant’s claims, he did not present to the Tribunal as a credible witness. He appeared to have embellished or fabricated his evidence in support his claim. While the Tribunal accepts that due to the passage of time, an applicant’s memory of events may fade or change, in this case, for the reasons explained below, the applicant’s evidence of events lacked the necessary detail by which it was possible to conclude he had been persecuted as claimed. For the reason expressed below, the applicant’s evidence was vague and lacking in detail. His evidence in relation to the circumstances of interrogation by the CID and SLA in November 2011 and May 2012 was vague and lacking in specific details. Given the vague nature of the applicant’s evidence and his inability to recall specific details surrounding each interrogation as claimed, the Tribunal has reservations about the applicant’s evidence. It appeared to the Tribunal that applicant had embellished the extent to which he had been subjected to any serious or significant harm in Sri Lanka.
The Tribunal notes that based on the applicant’s own evidence, he maintains contact with his family in Sri Lanka.[46] In addition, his evidence was that his two brothers, [Mr B] and [Mr C], are now living in Australia.[47] However, despite him maintaining contact with his family, no member of the applicant’s family provided any supporting evidence on his behalf.

[Mr B]

[46] Applicants Statement of Claims dated 29 October 2012 @ [26] & [27]; Dept File [Number]; f.45

[47] OpCit @ [25]

The applicant provided a copy of a Visa grant notice of a Protection (class XD) Temporary Protection (subclass 785) granted to [Mr B] on 18 June 2016. It was not made clear to the tribunal the reason why this notice was provided. The applicant did not provide any evidence in relation to the granting of the visa to [Mr B] and its relevant to him. In addition, there is no mention of [Mr B] being granted a visa and its relevance to the applicant in his submissions, including his submission to the tribunal dated 24 July 2020. Therefore, because there is no evidence that the grant of the visa to [Mr B] is relevant to the applicant, the Tribunal finds that it is not relevant to the applicant for the purposes of his application for a protection visa. As a result, it finds that there is no real chance the applicant will be seriously harmed for any reason arising [Mr B] being granted a temporary protection visa.

Applicant as an Ethnic Tamil

The applicant claims there is a real chance that he will be seriously harmed if he is returned to Sri Lanka by reason of him being an ethic Tamil.[48] He claims that as an ethic Tamil is a reason why he would be perceived to be in support of the LTTE, a guerrilla organization that sought to establish an independent Tamil state, Eelam, in northern and eastern Sri Lanka.[49]
[48] Applicant’s submissions dated 24 July 2020 @ p.6.
[49] Tamil Tigers Revolutionary Organization Sri Lanka;
Tamils are the second largest ethnic group in Sri Lanka.[50] It’s reported that Tamils have a substantial level of political influence and their inclusion in political dialogue has increased since the change of government in 2015. The US Country Reports 2015 indicates that in November 2015, ‘the government removed the ban on eight Tamil diaspora organizations and 267 individuals on the previous government's watch list.’[51] In addition, according to Freedom House, members of various Tamil political parties (in the north and east), who have faced frequent threats in the past faced less intimidation in the lead-up to the January 2015 election. It’s also reported that Tamil civilians faced fewer hindrances in voting during both the April 2015 presidential and the August 2015 parliamentary polls, in contrast to the 2010 elections. In what was described as an amicable gesture to the Tamil community by President Sirisena, in early 2015 the newly elected president appointed a civilian governor in Northern Province, replacing a retired army commander, where Tamils comprise a majority.[52]
[50] DFAT Report @ p.24
[51] Canada: Immigration and Refugee Board of Canada, Sri Lanka: Treatment of Tamils in society and by authorities; the Eelam People's Democratic Party (EPDP), including relationship with the Tamil population (2014-February 2017), 17 March 2017, LKA105756.E, available at: United States (US). 13 April 2016. Department of State. "Sri Lanka." Country Reports on Human Rights Practices for 2015
[52] Ibid; Freedom House. 2016. "Sri Lanka." Freedom in the World 2016.
On 17 November 2019, Gotabaya Rajapaksa was elected as President in the Sri Lankan presidential election.[53] Rajapaksa served as defence secretary during his brother Mahinda's 2005-15 presidency and led a brutal crackdown on Tamil Tiger separatists. Rajapaksa orchestrated the Tamil genocide, which culminated in several tens of thousands of Tamil deaths. It’s claimed that his re-emergence as president has once again has given strength to a widespread anti-Tamil sentiment.[54] Speaking at the elections commissions’ office soon after the results were officially released, Mr Rajapaksa assured fair treatment for all.[55] Nevertheless, his election has raised fears among the country's religious and ethnic minorities, including the Tamil population.[56]
[53] The Telegraph, ‘Former defence chief who led brutal suppression of Tamil Tigers wins Sri Lanka presidential election’ by Qadijah Irshad, 17 November 2019; Post-War Sri Lanka: Fractured and Unjust for Tamils by Visvajit Sriramrajan 15 May 2020
ibid
[56] ibid
The applicant submits,[57] that the return of the Rajapaksas Governmant and the election of Mahinda Rajapaksa as Prime Minister will mean that Tamils in Sri Lanka will be the subject of further discrimination and persecution. He submits that Tamils and perceived supporters of the LTTE continue to suffer violence and discrimination in Sri Lanka on account of their ethnicity. A Foreign Policy article dated 29 November 2019 claims that the Rajapaksa regime is likely ‘to govern based on anti-pluralistic ‘Sinhala first’ or ‘Sinhala only’ orientation, an approach that academics have long held responsible for civil conflict.’[58]
[57] Applicant’s submissions dated 24 July 2020 @ p.6
[58] Amita Arudpragasam, Foreign Policy, ‘The Rajaapaksas Will Ruin Sri Lanka’s Economy’ 29 November 2019,
The United States Department of State [59] reports that local and Indian-origin Tamils maintained that they suffered longstanding, systematic discrimination in university education, government employment, housing, health services, language laws, and procedures for naturalization of non-citizens. Throughout the country, but especially in the North and East, Tamils report that security forces have regularly monitor and harass members of their community, especially activists, journalists, and former or suspected former LTTE members.[60] The DFAT report[61] notes that many Tamils reported being monitored, harassed and arrested or detained by security forces during the war. Many Tamils were imputed with LTTE support based on their ethnicity due to the fact that almost all LTTE members and supporters were Tamil security.
[59] The US Department of State, 2019 Country Reports on Human Rights Practices: Sri Lanka; DFAT report p.24
[61] ibid
However, its reported that since the end of the war in 2009 the Sri Lankan government arranged a large-scale rehabilitation process for former LTTE members. Rehabilitation centre’s were established for LTTE members for those members of the LTTE who surrendered in the final stages of the war.[62] Its reported[63] that those members of the LTTE who may be considered ‘low profile’ (former combatants and administrative staff) who may have come to the attention of the authorities and detained for rehabilitation have been released and are generally not prosecuted. DFAT assess that while those with links to the LTTE may be monitored they are able to live their lives without any concern as to their security.[64] Similarly, family members of former LTTE members and their families may face discrimination within the community from government officials,[65] but are able to live without concern as to their security.
[62] DFAT Report @ p.33
[63] Op Cit @ p.36
[64] ibid
[65] Op Cit @ p.37
The government has a variety of ministries and there are a number of presidentially appointed bodies designed to address the social and development needs of the Tamil minority.[66] The Office of National Unity and Reconciliation, established in 2016, continues to coordinate the government’s reconciliation efforts. The office focuses on promoting social integration to build an inclusive society, securing language rights for all citizens, supporting a healing process within war-affected communities via the government’s proposed Commission for Truth, Justice, Reconciliation, and non-recurrence of the violence. In addition, its reported that the Tamil National Alliance and Defense Ministry, inaugurated in 2017, continues to meet in accordance with a formal dialogue on returning military-held lands in the Northern and Eastern Provinces.[67]
[66] The US Department of State, 2019 Country Reports on Human Rights Practices: Sri Lanka; ibid
The 2019 Freedom House[68] report noted: ‘Tamils report systematic discrimination in areas including government employment, university education, and access to justice.’ Nevertheless, DFAT has assessed that ‘there is no official discrimination based on ethnicity in public sector employment. Rather, it reports that Tamil’s under-representation is largely due to language constraints and disrupted education as a result of the war.[69] DFAT also notes that some members of the Tamil community report discrimination in employment, particularly in relation to government jobs. Its reported that even in the Tamil-dominated north and east there are relatively few Tamil public servants. Despite government incentives, the number of Tamil-speaking police officers and military personnel in the north and east remains small and monolingual Tamil speakers can have difficulty communicating with authorities.[70]
[68] ‘Freedom in the World 2019’ report on Sri Lanka, 4 February 2019; UK Home Office, Country Policy and Information Note Sri Lanka: Tamil Separatism Version 6.0
[69] DFAT Report @ p.24;
[70] ibid
The UK Home Office reports[71] that Tamils are not specifically targeted and do not suffer persecution just for being Tamil, but they do suffer discrimination along with other minorities. It’s reported compared to before 2015 Tamils have greater freedom and opportunities in the north. Nevertheless, they were fearful of the return of former president Rajapaksa.[72]
[71] UK Home Office, Country Policy and Information Note Sri Lanka: Tamil Separatism Version 6.0 January 2020, ibid

Rajapaksa government has stated that it no longer wishes to support the 2015 UN Human Rights Council resolution committing Sri Lanka to justice, accountability and protection of civil society victim groups, but it should still comply with the consensus resolution.
[73] ibid
As such, there is a concern that the Rajapaksa government will further disregard its international human rights obligations.[73]
In August 2020 the Sri Lanka Peoples Party (SLPP) recorded a massive victory in the parliamentary elections with 145 seats (representing 60 percent of the vote), just five seats short of a two-thirds majority. The SLPP is led by Prime Minister Mahinda Rajapaksa, the brother of President Gotabaya Rajapaksa. Its reported that he was elected with about 52 per cent majority of the votes.[74]
[74] The Indian Express, ‘Explained: What the massive election victory for Rajapaksa means for Sri Lanka’ Arun Janardhanan dated 9 August 2020, >
Many Tamils lost family members and friends in the war which came to a brutal end in 2009. It was reported that those who had experienced the violence have been scared by the increased political strength of Gotabaya Rajapksa.[75] However, the parliamentary elections saw a 71 percent voter turnout,[76] which resulted in a clear majority for the SLPP. The Tamil National Alliance (TNA), which once enjoyed a huge mandate in the Tamil minority areas, suffered a major setback by winning only just 10 seats (a reduction of 6 seats) at the election.[77]
[75] The World News, ‘Sri Lankan minorities fear poll victory for Rajapaksa brothers’ by Joe Wallen 5 August 2020, Economy Next, ‘Sri Lanka 2020 general elections turnout lower, steepest in Kurunegala’ dated 6 August 2020
[77] ibid
The applicant’s evidence was that he and his family were displaced by the civil war and the 2004 tsunami and as such were put into various displaced person camp. In or about May 2010 they were moved to a camp in [Location 2], controlled by the SLA. The applicant claims while he was in the camp he was regularly abused and humiliated, including being called a Tamil dog and being made to perform menial and dirty tasks in the camp. The applicant did not provide any specific evidence of occasions at which he claims to have suffered harm. Nevertheless, the Tribunal is prepared to accept that he and his family were placed in the camps as claimed. In addition, it accepts the treatment of the applicant and his family was discriminatory and harsh. However, the Tribunal notes the country information that states that the camps are no longer operating. In addition, it was the applicant’s evidence that his family had been released from the camps and were now living in [Village 1], Sri Lanka, a village close to his hometown of [Town]. As such, the Tribunal finds that there is no real chance that he will be seriously harmed if he is returned to Sri Lanka by reason of the fact that he and his family were displaced during the civil war and the 2004 tsunami and lived in various displaced person camps.
The Tribunal has considered the applicant’s submissions and the relevant country information and acknowledges the applicant’s concerns about the treatment of Tamils in the past. In addition, the Tribunal acknowledges the applicant’s concern, and Tamils more broadly, about the election of Gotabaya Rajapaksa and Mahinda Rajapaksa following the Presidential and Parliamentary elections. It has been speculated that, the Rajapaksa regime will govern based on an anti-pluralistic “Sinhala first” or “Sinhala only” orientation.[78]
[78] Foreign Policy ‘The Rajapaksas Will Ruin Sri Lanka’s Economy’ dated 27 November 2019 by Amita Arudpraagasam;
However, there is ongoing international pressure for Sri Lanka to implement a process of reconciliation including United Nations Human Rights Council resolutions calling for the for the promotion of reconciliation, accountability and human rights.[79] Sri Lanka's minority Tamil political parties and civil society groups have recently urged the UN Human Rights Council to establish an international independent investigatory mechanism to investigate, within a strict time frame, alleged human rights abuses during the civil war.[80] In addition, its reported[81] that the issues concerning theTamil community of Sri Lanka was discussed between India’s Prime Minister Narendra Modi and Sri Lankan Prime Minister Mahinda Rajapaksa at a summit conducted in September 2020. India has continuously pressed Sri Lanka to ‘implement the thirteenth amendment to the Constitution of Sri Lanka that would allow reconciliation of the Tamil community of Sri Lanka.’[82] Prime Minister Modi called upon Sri Lanka to address the ‘aspirations of the Tamil people for equality, justice, peace and respect within a united Sri Lanka’ by implementing a process of reconciliation by adopting the Thirteenth Amendment.[83] Mahinda Rajapaksa has claimed that ‘Sri Lanka will work towards realising the expectations of all ethnic groups, including Tamils, by achieving reconciliation nurtured as per the mandate of the people of Sri Lanka and implementation of the Constitutional provisions.’[84]
[79] Aljazeera, ‘How the UN failed Tamil civilians in 2009 by Nirmanusan Balasundaram 18 May 2019
[80] The New Indian Express
[81] India Today, ‘India, Sri Lanka hold first bilateral summit since Rajapaksa took office’ by Gretta Mohan dated 27 September 2020; The Hindu, Address aspirations of Tamils, Narendra Modi urges Mahinda Rajapaksa, dated 26 September 2020 by Suhasini Haidar and Meera Srinivasan, ibid
[83] ibid
[84] ibid

The available country information[85] indicates that Tamils while from time to time may be subjected to discrimination, are not unlikely to face persecution based on their ethnicity alone. While Tamils have been monitored, detained and harassed in the past, there is no evidence that the applicant as an ethnic Tamil will experience such treatment upon his return to Sri Lanka. Hi evidence was that he was not monitored or harassed by the authorities from November 2011 until May 2012. In addition, there is no evidence that the applicant held a any position, little own a high-profile position, with the LTTE that would bring him to the attentions of the authorities. For the reason expressed below the Tribunal has found that while he was subjected to routine monitoring, the applicant was not imputed any political opinion as a result of his brother involvement in the LTTE which caused him to be seriously harmed or is likely to him to be harmed if he returns to Sri Lanka. As a result, the Tribunal finds that there is no real chance that the applicant will suffer serious harm by reason of being an ethnic Tamil if he is returned to Sri Lanka Therefore, based on the available country information,[86] while the Tribunal accepts that the applicant may suffer some discrimination within the community as an ethnic Tamil, it is not satisfied that he will suffer serious harm pursuant to s5J(5) of the Act if he is returned to Sri Lanka.

The applicant’s occupation of Camps
[85] UK Home Office, Country Policy and Information Note Sri Lanka: Tamil Separatism Version 6.0 January 2020, DFAT Report @ p.24

The Tribunal has accepted that the applicant and his family were displaced by the civil war and the 2004 tsunami and that they were eventually moved to a camp in [Location 2], an area controlled by the SLA in or about May 2010. The Tribunal accepts the applicant’s evidence that the area in which the camp was located was controlled by the SLA. The applicant claims while he was in the camp he was regularly abused and humiliated. He claims that he was called a ‘Tamil dog’ and made to perform menial and dirty tasks in the camp.
The country information states that during the final statges of the civil war approximately 300,000 internally displaced persons (IDPs) were transferred to camps in the northern and eastern parts of the country and detained there against their will.[87] Serious concerns were raised by human rights and humanitarian agencies, the international community and the media regarding the militarisation of camp administration and management alleged lack of safety and security in the camp and the poor living conditions of the IDPs.[88] On 7 May 2009 the Sri Lankan government announced plans to resettle 80% of the IDPs by the end of 2009. [89] At the end of the civil war the Sri Lankan President, Mahinda Rajapaksa, gave assurances that the bulk of the IDPs would be resettled in accordance with the 180-day plan.[90] In 2010 the pace of resettlement of IDPs increased and the resettlement process was completed with the camps officially closing on 25 September 2012.[91]
[87] "ASA 37/016/2009 Unlock the Camps in Sri Lanka: Safety and Dignity for the Displaced Now". Amnesty International. 10 August 2009; "Sri Lanka: After the War". International Crisis Group. 17 February 2010.
[88] Secure Livelihoods Research Consortium, ‘Resettlement of conflict-induced IDPs in Northern Sri Lanka: Political economy of state policy and practice,’ Working Paper 10 Chamindry Saparamadu and Aftab Lall, January 2014 @ p.2
[89] "Sri Lanka: Government Breaks Promises That Displaced Can Go Home". Human Rights Watch. 19 October 2009, "Sri Lanka vows to resettle Tamils". BBC News, 21 May 2009, BBCnews.bbc.co.uk/nol/ukfs_news/mobile/newsid_8060000/newsid_8061600/8061623.stm.
[91] The New Humanitarian, "SRI LANKA: Final batch of Menik Farm IDPs relocated" 28 September 2012;
The country information reports that as at April 2015, despite the removal of the camps approximatley13,459 families (or 44,934 persons), remained to be resettled and housed.[92] The country information notes that concerns expressed by humanitarian agencies in relation to the lack of safety and security in the camps, the poor living conditions of IDPs (particularly in relation to the shelter, water and sanitation conditions and food aid provided to IDP’s) and the lack of access provided to humanitarian agencies on security grounds.
[92] "Sri Lanka to build 65,000 homes for war-hit families". The Hindu. 28 September 2015; >
Notwithstanding the country information in relation to the conditions in the camps, the applicant did not provide any specific details in relation to the circumstances in which he claims to have been abused or humiliated during his time in the camps. The applicant’s evidence was that soldiers were everywhere,[93] traveling around was very restricted, the soldiers only spoke Sinhalese and often they would make young men, such as himself, perform menial chores.[94] The Tribunal accepts that the conditions in the camps was very poor including poor living conditions a lack of security and safety and lack of access to humanitarian agencies.
[93] Applicants Statement of Claims dated 29 October 2012 (SOC) @ [10], Department file [Number] @ f.46
[94] OpCit @ [10], Department file [Number] @ f.46
Nevertheless, the country information reports that the camps were closed in 2012. The applicant’s evidence was that he and his family were let out of the camps in 2010 and that his family settled in [Village 1], Sri Lanka. There is no evidence that a result of having been displaced by the civil war and the 2004 tsunami as claimed he would be returned to a camp if he is returned to Sri Lanka. As a result, the Tribunal finds that there is no real chance that the applicant will be seriously harmed if he is returned to Sri Lanka by reason of him having been displaced and forced to live in a camp as a result of the civil war and the 2004 tsunami.

The November 2011 Incident.

The applicant claims that on about the 17 November 2011 he was wrongly accused by the CID of raising an LTTE flag commemorating the LTTE members who had lost their lives during the civil war and the birthday of the LTTE founder, Velupillai Prabhakaran.[95] The applicant claims that the CID stopped him in the street and asked him to attend the CID the next day.[96] However, while he explained that others had told the CID that he had raised the flag he was not able to explain to the Tribunal who may have informed them or how the CID were able to locate him and identify him in the street for the purposes of interrogating him.
[95] OpCit @ [12], OpCit @ f.46
[96] OpCit @ [13]; ibid
The applicant claims that he attended the CID offices and was interrogated for approximately 45 minutes. The applicant claims that he was asked questions about the raising of the Tamil flag to which he explained that he could not have because he was fishing at the time of the commemoration, which could be verified as a result of him passing through several SLA checkpoints. The applicant claimed that he was hit, ridiculed and insulted during the interrogation. However, he was not able to provide specific details of injury he claims to have suffered.
He claims that during the interview he revealed to the CID his brother’s involvement in the LTTE. However, he was not able to provide any evidence in relation to the CID officers response to him revealing his brother’s involvement in the LTTE. The applicant claimed that the CID ‘would have asked him’ about his brother’s involvement with the LTTE but was not able to provide any further detail.
In addition, the applicant claims that he was forced to sign a document that was written in Sinhalese. He claims he did not know what the document contained but claimed that a CID official recorded his personal details before releasing him.
Finally, the applicant’s evidence was he was released after only 45 minutes to an hour. In circumstances where the applicant claims to have revealed to the CID that he had a brother who held an important position in the LTTE it seems unlikely that he would be released after 45 mins without harm. Given the applicants brothers important position in the LTTE as claimed, the Tribunal would have expected him to have been held for an extended period and interrogated about his brother and his involvement in the LTTE more generally.
The Tribunal notes the country information[97] (as referred to above) that reports that many Tamils, particularly in the north and east, were monitored, harassed, arrested or detained by security forces during the war. As LTTE members and supporters were almost all Tamil, security forces imputed LTTE support based on a person ethnicity as a Tamil.[98] As such, the Tribunal accepts that the applicant could have been detained by the CID in November 2011 as part of the its regular monitoring of the population. As a result, the Tribunal also accepts that his details would have been recorded by the authorities and that he may have been required to sign a document as claimed.
[97] DFAT Report @ p.24
[98] DFAT Report @ p.24
However, it does not accept that the applicant’s evidence that he informed the authorities of his brother’s involvement in the LTTE at the November incident. The applicant did not raise the issue with the Department or the RRT. The applicant’s evidence to the Tribunal that he had not raised it before due to the fact that when he arrived in Australia, he was informed by an interpreter that he should not disclose the information about his brother because he will be put in jail. It was not clear to the Tribunal how or why an interpreter was proving such advice. In any event, the Tribunal notes that at time the applicant entered Australia, the LTTE was no longer active and had ceased to exist in Sri Lanka.[99] Therefore, given the applicants delay in giving the information to the Tribunal, the fact that his evidence about the November 2011 interrogation was vague and lacking in any detail, the fact the he was released after only 45 mins without any serious harm and the fact that the LTTE ceased to exist in Sri Lanka in or about 2009, the Tribunal does not accept that he raised the issue of his brothers involvement with the LTTE at the November 2011 interrogation claimed.
[99] DFAT Report @ p.33
The Tribunal notes that at both the November 2011 interrogation and the May 2012 interrogation the applicant was released after 45 minutes without harm. As a result, the Tribunal does not accept that the applicant will be seriously harmed if he is returned to Sri Lanka by reason of being interrogated by the CID in November 2011 as claimed.

The May 2012 Incident

The applicant claimed that that as a result of the interrogation on 17 November 2011 there was a mark on his record. However, his evidence was that he had not contact with the authorities until May 2012.
In May 2012, the applicant claims that he was interrogated by the SLA. The applicant claimed that the SLA asked him to attend their office in [Location 3] which he did the following day. He stated to the Tribunal that he was afraid to go to their offices but stated that he could not avoid as he would have been suspected as being a LTTE supporter. However, the applicant was not able to tell the Tribunal how he was informed to attend the interview. He initially claimed that he received the message at his home. He stated that at that time the SLA was present and as such they ‘probably’ meet him at his home and told him about the meeting. However, he later stated the SLA did not come to his home but rather a message was delivered to him on the ‘road somewhere’ close to his home. However, the applicant could not tell the Tribunal where and from whom he received the message.
The applicant’s evidence was that he attended the SLA’s offices alone. However, he could not tell the Tribunal how travelled to the interview but stated that he ‘most likely went by bicycle.’ The applicant claims that because he had been under mental stress, he had difficulty in remembering the details surrounding the interrogations. The applicant did not provide any independent evidence in relation to his mental health. In the absence of any medical report, the Tribunal does not accept the applicant’s evidence that he was suffering from mental condition that affected his memory as claimed.

100.The applicant claims that during the interview the SLA told him they had received a letter that had identified him as a LTTE fighter and identifying him as having weapons to fight the army. The applicant’s evidence was that he was not shown the letter. He claims that he denied being a LTTE supporter or an LTTE fighter. The applicant claims that he was called a liar by the soldiers and that they hit and punched him. The applicant stated that he explained that his brother had been in the LTTE and explained that he was missing, and it was not known if he was dead or alive. He denied being a member of the LTTE. The applicant’s evidence was that the soldiers who interrogated him said that if he was arrested again, they will accuse him of having weapons to fight the army and that they would arrest him as a terrorist. He claimed that he took this to mean that he would be taken and killed.
101.Nevertheless, despite being accused of being a LTTE fighter, possessing weapons in circumstances where the applicant claims he explained to the officers his brother involvement with the LTTE, the applicant claims that he was released after 45 minutes without harm. The Tribunal finds it hard to accept that in light of the issues claimed to have been raised during the course of the interrogation that he was released after such a relatively short period of time.

3.19 The government committed to repeal and replace the PTA with counter-terrorism legislation that is human rights compliant as part of its broader reconciliation and transitional justice undertakings. Draft replacement legislation, the Counter-Terrorism Act (CTA), was approved by cabinet in September 2018 and presented to parliament on 9 October 2018. The Supreme Court subsequently considered several petitions challenging the constitutionality of certain clauses of the CTA, and declared a number of them to be unconstitutional and requiring amendment. One amendment required by the Court was to include provision for the death penalty.
3.20 The constitutional crisis and 2019 Easter Sunday terrorist attacks have stalled enactment of the CTA. Draft legislation remains with parliamentary oversight committees, but it is unclear when it will be tabled for parliamentary vote. UNP elements and Opposition Leader Rajapaksa spoke out against the CTA following the Easter Sunday terrorist attacks. In July 2019, cabinet appointed a ministerial committee headed by the Foreign Minister to submit recommendations to it on ‘introducing an effective legal framework to counter terrorism’. DFAT understands this process may involve amending the draft CTA. Against this backdrop, DFAT assesses that repeal and replacement of the PTA is unlikely in the near-term.
Liberation Tigers of Tamil Eelam (LTTE)
3.55 At its peak in 2004, the LTTE had an armed force of approximately 18,000 combatants. The LTTE had an intelligence wing, a political wing and an extensive administrative structure based in its de-facto capital of Kilinochchi (Northern Province). The majority-Tamil civilian populations of the areas controlled by the LTTE were required to interact with the LTTE as a matter of course. The LTTE was supported by foreign funding, primarily from the Tamil diaspora, and both voluntary and forced recruitment of Tamils. Funding from the Tamil diaspora was sometimes attained through means of intimidation and coercion, including threats against local family members and kidnapping for ransom. The LTTE also targeted middle- and upper-class Tamils within Sri Lanka for extortion. The LTTE was known not to tolerate dissent within areas under its control.
3.56 Towards the end of the war, government security forces arrested and detained a large number of LTTE members. Most were sent to government-run rehabilitation centres. A smaller number were prosecuted through Sri Lanka’s court system. Security forces also questioned or monitored many civilians for possible LTTE activity, and for civil resistance or anti-government sentiment. Although not officially mandated, in many areas the military took a visible and active role in civilian life. The government has publicly committed to reducing military involvement in civilian activities.
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.
3.60 Some members of the LTTE (as well as government forces) may be ineligible for international refugee protection because of involvement in war crimes and serious violations of human rights committed during the war. Such crimes include: abductions and enforced disappearances; indiscriminate attacks on civilians; forced displacement; torture and other cruel, inhuman and degrading treatment; murder, including political assassination; mass killings; extrajudicial and summary executions; rape; and forced recruitment for the commission of attacks and/or military service and/or labour, including recruitment (sometimes through abduction) of children.
Rehabilitation
3.61 Since the end of the war, the Sri Lankan Government has managed a large-scale rehabilitation process for former LTTE members. The government established 24 rehabilitation centres in the Northern, Eastern and Western provinces for former LTTE members who surrendered in the final stages of the war. The Bureau of the Commissioner General of Rehabilitation used a ‘three pronged approach’ to manage arrested LTTE members: (1) those to be investigated and prosecuted under normal court of law; (2) those to be rehabilitated; and (3) those to be released upon confirmation by intelligence agencies of their peripheral involvement in the war. Sources told DFAT that those targeted for rehabilitation included not just former combatants, but also those who performed non-combat functions for the LTTE as part of its civilian administration in Tamil-populated areas.
3.62 According to Sri Lankan Government statistics from March 2019, 12,191 former LTTE members (including 2,265 women) had completed rehabilitation. At the time of publication, only one rehabilitation centre for former LTTE members remained operational (Poonthottam Rehabilitation Centre in Vavuniya, Northern Province). DFAT understands this centre currently houses one former LTTE member. Some centres previously used to rehabilitate former LTTE members have been redeployed for the purposes of rehabilitating drug addicts (see Rehabilitation of non-LTTE members). Official sources told DFAT the Poonthottam centre would remain open for the foreseeable future and be used on a needs basis, including to rehabilitate drug addicts and non-rehabilitated former LTTE members that come to the attention of the authorities. Convicted former LTTE members currently held in other places of detention, including under the PTA, might – upon their release – also be sent for rehabilitation (local sources indicate there are more than 100 such individuals).
3.63 Former LTTE members undergo two forms of profiling: (1) psychosocial, including an assessment of their level of radicalisation; and (2) socioeconomic, including education, professional skills and vocational interests. Personal files assess the progress of former LTTE members in terms of rehabilitation and de-radicalisation. Rehabilitation is typically a one-year program, extended to up to two years for those assessed as highly radical. The first six months of the rehabilitation program usually focus on ‘rehabilitation of the mental and physical state’, including education, spiritual, religious and cultural training and sports; the last six months are dedicated to vocational training. The rehabilitation process includes field trips.
3.64 Although the activities undertaken in the rehabilitation centres vary, vocational training for men includes welding, masonry, plumbing, driving, tailoring, wiring, Sinhala language, computer skills and vegetable cultivation. Women are accommodated separately from men and receive training in cookery, beauty therapy, tailoring, Sinhala language and computer skills. DFAT understands that no women are currently undergoing rehabilitation. Former child soldiers undergo a separate rehabilitation program, with a focus on education. While many of those who have completed rehabilitation have reported difficulty finding regular employment upon their release, others have said the vocational skills gained during rehabilitation made them more employable. The unemployment rate among rehabilitated former LTTE members, particularly women, is reportedly higher than the national average but this may reflect factors such as the weaker economic conditions in the north and east, war-related disabilities and a reluctance by employers to hire known former LTTE members, for fear of inviting monitoring by the authorities.
3.65 Former LTTE members undergoing rehabilitation are permitted to make multiple visits to their family and receive family visits during their rehabilitation process. In 2016, the UN Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment assessed that conditions in rehabilitation were considerably more humane than in prison. Local sources told DFAT that rehabilitation centres compared favourably to prisons, including from the point of view they were not overcrowded like prisons (see Detention and Prison).
3.66 A July 2018 report of the UN Working Group on Arbitrary Detention assessed there were ‘systemic problems with deprivation of liberty’ in connection with the Poonthottam Rehabilitation Centre and described the detention of former LTTE members for the purposes of rehabilitation therein as ‘arbitrary’. The UN Working Group recommended that the Sri Lankan Government release detainees from the Poonthottam Rehabilitation Centre immediately and unconditionally, and close the centre as soon as possible.
3.67 Local sources estimate that between 4,000 and 6,000 former LTTE members are undisclosed and non-rehabilitated, some of whom would now be living overseas. Military sources believe the number of undisclosed and non-rehabilitated former LTTE numbers within Sri Lanka is low, including approximately 280 individuals in Jaffna (Northern Province). Former LTTE members are reluctant to identify for fear of rehabilitation or prosecution. One source claimed the authorities were not actively looking for nonrehabilitated former LTTE members. At the time of publication, DFAT was not aware of rehabilitation being imposed on any former LTTE members who have returned from Australia. DFAT assesses that a non- rehabilitated returnee with links to the LTTE, particularly high-level links, could be subjected to a rehabilitation process should they return to Sri Lanka.
3.68 Although no formal parole arrangements apply, former LTTE members are required to register with the Civil Affairs Office of their local military unit and may be subject to monitoring, the level of which would depend on the degree of their assessed LTTE involvement. Military sources said the military had no system to monitor rehabilitated former LTTE cadres, unless police reported suspicious activities. Most individuals released from rehabilitation centres have returned to their places of origin and, like all other citizens, are required to register with a local grama niladhari (village officer) to receive financial and other support for repatriation and access to public services. Some international and domestic NGOs also provide post-release support. DFAT understands that no travel restrictions apply to rehabilitated former LTTE members, who may obtain a passport. Those who complete rehabilitation are issued a certificate of completion as evidence they have been rehabilitated.
3.69 DFAT is aware of reports that more than 150 former LTTE members died of cancer after being in rehabilitation centres. Some Tamil political leaders, including former Northern Province Chief Minister C.V. Wigneswaran, raised allegations in 2015 and 2016 that former LTTE members received poisonous injections during rehabilitation resulting in fevers, heart disease and cancer. The Northern Provincial Council directed its health ministry to investigate over 200 allegations — it concluded there was no evidence of injections.
3.70 The government has used the rehabilitation process to screen and profile LTTE members through interviews, informants and other relevant information to assess individuals’ depth of involvement with the LTTE, period of involvement and activities. Security forces can use such information to categorise individuals and potentially to determine whom to prosecute for terrorism or other offences. DFAT is not aware of specific cases where this has occurred.
Family members of LTTE
3.83 The Sri Lankan Government acknowledges that former LTTE members and their families may continue to face discrimination both within their communities and from government officials. DFAT cannot verify claims that people have been arrested and detained because of their family connections with former LTTE members, but understands that close relatives of high-profile former LTTE members who are wanted by Sri Lankan authorities may be subject to monitoring.
Internally Displaced Persons (IDPs)
3.93 The war internally displaced over 900,000 people, mostly Tamils and Muslims in the Northern and Eastern provinces. The majority have been resettled. According to the Sri Lankan Government, 891,628 IDPs had been resettled as at 2 April 2019 (554,543 in the north and 337,085 in the east), with most returning to their places of origin. According to these statistics, 27,946 IDPs are yet to be resettled (26,936 in the DFAT Country Information Report Sri Lanka 39 Northern Province, most of them in Jaffna, and 1,010 in the Eastern Province). Of those yet to be resettled in the north, 2,216 IDPs were living in 25 welfare centres, all in Jaffna, with the remaining (24,720) living in host communities in Jaffna, Kilinochchi, Mullaitivu and Vavuniya. Many of those who are yet to be resettled originate from High Security Zones and surrounding areas now run by the military. Those yet to be resettled in the east all live in host communities in Trincomalee and Batticaloa, with no IDPs remaining in welfare centres. IDPs have full freedom of movement.
3.94 IDPs living in host communities receive resettlement assistance from the government and military, including housing renovation and construction and livelihood support. IDPs must register with the government to receive assistance. IDPs in welfare centres are no longer eligible to receive government protection or assistance. According to the Sri Lankan Government, 150,857 houses had been constructed in former war-affected areas as at 2 April 2019. To promote resettlement of displaced persons, the government allocated LKR5.5 billion (approximately AUD45 million) in the 2019 budget for the construction of an additional 15,000 houses in the north and east. Official sources told DFAT that female-headed households, families with disabled members and former combatants are given priority for resettlement and housing assistance. UNHCR also provides some assistances to IDPs.
3.95 The Sri Lankan Government has committed to returning land to people displaced during the war, including people who were landless. The ‘National Policy on Durable Solutions for Conflict-Affected Displacement’, adopted in August 2016, ’commits the State to release in a timely manner all state-held land from which people were displaced or which they owned, retaining only that land legitimately required for public purposes in exceptional cases.’ In reality, the military has not released all land in the north and east, and IDPs are not always able to select their preferred location (see Security situation in the north and east). It is not clear whether the released land will be sufficient to accommodate the remaining IDPs.
3.96 In addition to delays in returning military-held land, loss of deeds or other ownership documents, and the destruction or secondary occupation by civilians of land and property, have complicated IDP resettlement. Most returning IDPs have lost most of their physical and financial assets. Without a registered, permanent address, displaced communities are unable to vote. They also report difficulties in accessing education, employment and public services, due to discrimination from both majority host communities and local officials, and limited government financial assistance, including for housing. Protracted displacement and scarcity of resources have also created conflict between and within minority groups and displaced and host communities. In March 2017, the government declared four forest areas in the Northern Province as conservation reserves; this land has been contested as the place of origin of a number of Muslim IDPs evicted by the LTTE in the 1990s.
3.97 The IDPs in welfare centres in the north initially had priority for resettlement over other categories of IDPs. Many long-term IDPs have established their lives in their area of displacement, and some have chosen not to return, or have been unable to return, to their areas of origin. This includes most of the approximately 75,000 Muslims whom the LTTE forcibly expelled from the Northern Province in October 1990 and moved to Puttalam, North Western Province (Muslims were considered by the LTTE to be progovernment). Those expelled lost their homes, belongings, businesses and livelihoods. Only a minority has since returned to their places of origin. According to Sri Lankan Government statistics from March 2019, 21,292 Muslim families had been resettled in the Northern Province (mostly in Mannar) and 22,512 families in the Eastern Province (mostly in Trincomalee). According to these statistics, 1,465 Muslim families remained displaced in the north (all living in host communities in Jaffna) and 195 Muslim families remained displaced in the east (all living in host communities, mostly in Trincomalee). Sources told DFAT that most displaced Muslims were established where they were and were therefore unlikely to return to their places of origin. Displaced Muslims report they do not receive the same level of resettlement and livelihood assistance from the government and UN agencies as other IDPs and refugee returnees from Tamil Nadu. DFAT assesses DFAT Country Information Report Sri Lanka 40 that the low rate of Muslim IDP resettlement is partly attributable to the exclusion of Muslim IDPs from various forms of government resettlement assistance, and to the prioritisation of more recent IDPs.
Enforced or Involuntary Disappearances
4.5 In May 2016, Sri Lanka ratified the International Convention for the Protection of All Persons from Enforced Disappearance. Parliament passed domestic legislation (the Enforced Disappearances Act) to implement the Convention and criminalise enforced disappearances in March 2018. In September 2017, the government issued a gazette to establish the OMP and appointed commissioners in February 2018 (see Reconciliation).
4.6 While there is no agreed figure, the number of missing or disappeared persons in Sri Lanka is thought to rank among the highest in the world. In June 2016, the ONUR said 65,000 people were missing from the war with the LTTE and separate Marxist insurrections (including members of the armed forces and police identified as missing in action). The OMP estimates at least 20,000 people disappeared without explanation since 1983 and remain missing today. The majority of the missing or disappeared are from the north and east and are likely to have been members or supporters of the LTTE. In July 2017, the UN Working Group on Enforced or Involuntary Disappearances attributed a number of child disappearances to the LTTE’s recruitment of child soldiers during the war. A small number of disappearances relate to people who have emigrated. For example, Kathiravel Thayapararaja, a former LTTE member who was reported to have been tortured and killed by Sri Lankan security forces in 2009, emerged alive in Tamil Nadu in 2014. Most of those considered missing or disappeared are highly likely dead.

4.7 Protests led by Tamil families demanding information on the disappeared began in the north and east in January 2017 and are ongoing. President Sirisena met protest leaders in Kilinochchi in June 2017 and reportedly agreed to release a list of individuals who disappeared during the war but, at the time of publication, a list had not been provided. The military has resisted previous requests for such information.
4.8 Systematic abductions using white vans, often leading to enforced disappearances, occurred during the war and in the period after. The term ‘white van abductions’ describes instances where individuals were abducted by unknown perpetrators in unmarked vehicles and were mostly never seen again. DFAT assesses that reports of a small number of abductions involving white vans in 2016 and 2017 likely referred to incidents where police did not follow protocol during arrest. DFAT understands that such disappearances are no longer common.
4.9 Extortion and kidnapping for ransom was common during the war, particularly in the north and east. While they are still known to occur, their incidence has decreased considerably in the post-war period. Where extortion and kidnapping for ransom occurs, the motive is usually business-related. DFAT assesses that wealthy Sri Lankans face a low risk of extortion or kidnapping for ransom.
CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
Arbitrary Arrest and Detention
4.30 Although Sri Lankan law prohibits arbitrary arrest and detention, it does not explicitly provide persons under arrest and detention the right to a lawyer or interpreter, or an obligation to inform family of an arrest. The PTA allows authorities to detain suspects without charge for up to 72 hours. After this period has elapsed, a suspect either can appear before a magistrate, or can be held without charge under detention orders for three-month periods not exceeding 18 months, although, in practice, some have been detained without charge for considerably longer than the PTA allows (see Arrest, Detention and Prosecution). Suspects can be held in irregular places of detention, as well as at police stations, detention centres or prisons. The ICRC and the HRCSL have access to PTA detainees and can meet detainees without police escort. Lawyers and families cannot meet detainees unaccompanied. According to media reporting, draft new counter-terrorism legislation (the CTA) would reduce the number of acts considered as terrorism and increase the power of the HRCSL to act as a check on abuses by security forces. The CTA would reportedly allow terrorism suspects to be detained for up to one year without charge. The CTA remained in draft form at the time of publication and may be subject to amendments.
4.31 The 2016 UN Committee against Torture fifth periodic report on Sri Lanka claimed that police powers to arrest suspects without a court warrant and the subsequent practice of detaining persons while conducting investigations were used to obtain information under duress. The report referenced allegations of police investigators failing to register detainees, or to bring them before a magistrate within the time limit prescribed by law. The HRCSL received 101 complaints of arbitrary arrest and detention from January to June 2018.
4.32 Individuals continue to be held under the PTA, although the precise number is contested. A large number of Muslims were detained under the PTA following the 2019 Easter Sunday terrorist attacks. DFAT is unable to verify how many individuals, including Muslims, are currently detained for suspected PTA offences.
4.33 Prior to the Easter Sunday attacks, authorities had made progress in processing persons detained under the PTA. In August 2017, the Sri Lankan Government released a list of 84 people in custody under the PTA and facing trial, and 12 others who had not been charged. According to the Sri Lankan Government, as at 25 January 2019, 58 individuals detained under the PTA were facing trial and three suspects were awaiting indictment. DFAT is unable to confirm whether those arrested under the PTA in 2018 and 2019 have been charged. Prior to the Easter Sunday attacks, the majority of individuals detained under the PTA were Tamil. The maximum penalty under the PTA is 20 years’ imprisonment. The UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism cited government statistics from July 2017 showing that 70 of more than 80 persons charged under the PTA had been detained for more than five years without trial, and 12 for more than 10 years. According to the US Department of State, individuals detained under the PTA have reported torture and mistreatment, forced confessions and denial of basic rights, including access to lawyers and family members.
4.34 In June 2016, President Sirisena instructed the security forces to adhere to HRCSL directives to protect those arrested under the PTA. These include guarantees of medical and legal assistance, registration of arrest, right to language of the detainee’s choice, protection from torture and other mistreatment, and special protection for women and children. The directives reassert the requirement for security forces to inform HRCSL of all PTA arrests, and HRCSL’s right to access any person arrested or detained under the PTA, and to access any place of detention at any time.
4.35 In 2017, protests took place in the north to demand the release of PTA detainees held for protracted periods. In September 2018, some Tamils held under the PTA without charge undertook a hunger strike against their protracted detention. 4.36 The current government has taken limited action to deal with individuals detained without charge under the PTA by its predecessor. In August 2016, the Minister of Prison Reforms, Rehabilitation, Resettlement and Hindu Religious Affairs reported that the government had released 39 detainees on bail and had committed to streamlining judicial processes for PTA cases, including consideration of rehabilitation as an alternative to custody. 4.37 Draft replacement counter-terrorism legislation, the CTA, is currently with parliamentary oversight committees, although its enactment has stalled and the PTA has been used in connection with the 2019 Easter Sunday terrorist attacks. According to media reporting, the CTA would reduce the list of acts considered to be terrorist offences, reduce pre-charge and pre-trial detention periods, and contain safeguards against custodial torture and coerced confessions, including by granting greater oversight roles to the judiciary and the HRCSL. The CTA was in draft form at the time of publication and may be subject to amendments. It is unclear when it will be tabled for parliamentary vote (see Monitoring, harassment, arrest and detention).
TREATMENT OF RETURNEES
Exit and Entry Procedures
5.31 The constitution entitles any Sri Lankan citizen ‘the freedom to return to Sri Lanka’. The Immigrants and Emigrants Act (1948) (the I&E Act) governs exit and entry from Sri Lanka. Sections 34 and 35 (a) of the I&E Act make it an offence, respectively, to depart Sri Lanka other than via an approved port of departure, DFAT Country Information Report Sri Lanka 67 such as a seaport or airport, and without a valid passport. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine. Returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the I&E Act. If a returnee voluntarily returns on their own passport on a commercial flight, they may not come to the attention of local authorities if they had departed Sri Lanka legally through an official port on the same passport.
5.32 Different agencies, including the Department of Immigration and Emigration, the State Intelligence Service, the Criminal Investigation Department and, at times, the Terrorism Investigation Division process returnees at Colombo’s Bandaranaike International Airport, including those on charter flights from Australia. These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Australian officials based in Colombo may meet charter flights carrying voluntary and involuntary returnees. The IOM meets assisted voluntary returnees after immigration clearance at the airport and provides some cash and onward transportation assistance. Processing of returnees at the airport can take several hours, due to the administrative processes, interview lengths and staffing constraints. Returnees are processed in groups, and individuals cannot exit the airport until all returnees have been processed, although returnees are free to go to the bathroom and to talk to one another during this time.
5.33 For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. All returnees are subject to these standard procedures, regardless of ethnicity and religion. DFAT understands detainees are not subject to mistreatment during processing at the airport
Conditions for Returnees
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.
5.44 The Sri Lankan Government has consistently stated that refugees are welcome to return and, in August 2016, released a ‘National Policy on Durable Solutions for Conflict-Affected Displacement’. During a visit to Australia in February 2017, Prime Minister Wickremesinghe stated publicly that failed asylum seekers from Australia would be welcomed back to Sri Lanka (see Offences under the Immigrants and Emigrants Act). Human rights groups greeted this statement with caution.
5.45 Despite positive government sentiment, refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. Most returnees have incurred significant expenses or debt to undertake their outward journey. Some refugee returnees receive reintegration assistance in the form of transport assistance and livelihood support upon return to Sri Lanka from the government, UN agencies and NGOs, but this requires a returnee to meet strict eligibility guidelines and is minimal. Failed asylum seekers receive limited reintegration assistance. Many returnees have difficulty finding suitable employment and reliable housing on return. Those who have skills that are in high demand in the labour market are best placed to find well-paid employment. In 2016, the Sri Lankan Government undertook to recognise the educational and professional qualifications acquired by refugee returnees outside Sri Lanka. This involves obtaining an equivalence certificate; however, returnees continue to report delays in gaining recognition for foreign qualifications. The IOM provides eligible returnees with livelihood assistance and makes regular visits to monitor the welfare of returnees.
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 DFAT Country Information Report Sri Lanka 70 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.

ww.aljazeera.com/opinions/2019/5/18/how-the-un-failed-tamil-civilians-in-2009

[2021] AATA 639

1 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Remedies