1804998 (Refugee)

[2022] AATA 5200

1804998 (Refugee) [2022] AATA 5200 (21 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Clare Hughes

CASE NUMBER:  1804998

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Nicole Burns

DATE:21 December 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 21 December 2022 at 4:29pm

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion – Liberation Tigers of Tamil Eelam (LTTE) worker – advocating for Tamil rights – conscripted LTTE service – attacks by the Karuna group – adverse ASIO security assessment – fear of torture – Tamil community involvement in Australia – illegal departure – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5LA, 36, 65
Migration Regulations 1994, Schedule 2

CASES

AGA16 v MIBP [2018] FCA 628

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 February 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Sri Lanka, applied for the Safe Haven Enterprise Visa (SHEV) on 16 September 2015.

3. According to Departmental records, there is a lengthy procedural history to the applicant’s case, involving: his arrival on Christmas Island [in] October 2009 (having left Sri Lanka [in] September 2009[1]); his Refugee Status Assessment (RSA) application made on 15 December 2009; a positive RSA decision made on 17 December 2009; an adverse security assessment made [in] June 2011; a subsequent non-prejudicial security assessment by ASIO in October 2014 (resulting in the applicant’s release from detention); and his application for a SHEV on 16 September 2015, which is the subject of this review.  A summary of the procedural history is attached (Attachment A).  

   [1] According to the applicant’s SHEV application; however, in his November 2022 statement provided to the Tribunal the applicant states he left Sri Lanka on [an earlier day].

4. The applicant appeared before the Tribunal on 12 December 2022 to give evidence and present arguments about the issues in his case. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

6. The issue in this review is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the relevant law and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Sri Lanka, there is a real risk he will suffer significant harm. 

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CRITERIA FOR A PROTECTION VISA

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

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 because the person is a refugee.

10. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

11. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in Attachment B to this decision.

12. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in Attachment B to this decision.

    Mandatory considerations

13. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

14. The most recent country information report on Sri Lanka was published by DFAT on 23 December 2021.

    CONSIDERATION OF Claims and evidence

    Relevant background (including nationality findings)

15. The applicant is [an age]-year-old Tamil man originally from Batticaloa, eastern Sri Lanka. He is also Hindu.  He studied [Subject 1] and [Subject 2] in Sri Lanka (among other things), and worked in several jobs there, including as a [Position 1] with [Employer 1].  He left Sri Lanka (by boat) [in] September 2009[2], arriving on Christmas Island [in] October 2009 as an irregular maritime arrival. 

    [2] According to information contained in the delegate’s decision record.  However, in his statement to the Tribunal the applicant states he left Sri Lanka on [an earlier day], and arrived on Christmas Island after [number] days at sea. 

16. The applicant claims he is a Sri Lankan national and provided to the Department a translated copy of his Sri Lankan birth certificate, Sri Lankan driver’s licence, and Sri Lankan education documents.  The delegate accepted he was a Sri Lankan national, as does the Tribunal,   against which it has assessed his protection claims.

17. In his evidence to the Tribunal, the applicant confirmed his parents and [siblings] continue to reside in Batticaloa, eastern Sri Lanka, however he is rarely in contact with them. Presently he is single, lives in Melbourne and works at a [specified] business, part time.  He used to operate a [business] selling [products] – [Business 1] – in Melbourne, which shut down during COVID-19 restrictions. 

    Claims, evidence and findings

18. In summary, the applicant claims to fear persecution from the Sri Lankan authorities as a Tamil from eastern Sri Lanka, who was involved with the Liberation Tigers of Tamil Eelam (LTTE), and because he had a dispute with a Karuna group[3] member in the past.  He claims members of the Karuna group and Sri Lankan Army (SLA) intelligence were looking for him whilst he was still in Sri Lanka, and assaulted his father when trying to locate him.  He claims the authorities have continued to enquire about him with his parents since he left.

    [3] A Tamil paramilitary group which used to assist the Sri Lankan authorities. 

19. The applicant also claims he has been active in the Tamil diaspora community in Australia, protesting against the Sri Lankan government here, and speaking out about them.  When he was detained in Australia, he, along with [other] Sri Lankan Tamil detainees, who were all subject to adverse security assessments by ASIO at the time, lodged complaints with several bodies including the UN Human Rights Commission (UNHRC), the Australian Human Rights Commission (HRC), Amnesty International and the Australian Commonwealth Ombudsman.  Due to this, and the fact his details were released on the Department’s website for a brief period of time in 2014 (the ‘data breach’), the applicant considers the Sri Lanka authorities will know about his case – including an adverse ASIO security assessment - which will add to his risk profile on return.

20. The applicant’s initial claims (and background) were detailed in a statutory declaration provided to the Department, dated 27 November 2009, in relation to his request for an RSA.  He also provided several Sri Lankan education and work documents at that time. 

21. In support of the SHEV application the applicant provided to the Department statutory declarations dated 1 October 2015 and 22 January 2018 in which he elaborated upon his claims, clarified relevant matters and provided an update about his circumstances. 

22. Other material provided to the Department included: a statutory declaration dated 5 February 2018 from [Mr A], member of [Community Organisation 1] in Melbourne; a statutory declaration from [a named friend], dated 7 February 2018, who co-founded [Business 1] with the applicant in Melbourne; and media articles and social media posts about the applicant, including his work with [Business 1].  

23. Before the Tribunal, the applicant’s representative provided a comprehensive written submission[4] setting out the applicant’s background, relevant immigration history, circumstances that led to him leaving Sri Lanka, activities in Australia, and concerns if he has to return there now.  Country information about the current situation in Sri Lanka, including the unstable political and security environment, and ongoing poor treatment of Tamils, is referenced, which the Tribunal has considered later in the decision when making its assessment about whether the applicant’s fears on return to Sri Lanka are well founded. 

    [4] Dated 7 December 2022.

24. Other material provided to the Tribunal in support of the applicant’s case included: a statement of claims from the applicant dated 28 November 2022; a bundle of media articles (about, for example, the data breach, and Tamils in Australia subject to ASIO security assessments); an article [published][5] about the applicant and [Business 1]; and an article [published][6] about [Business 1] (which shows a photograph of the applicant with others).

    [5] [Source deleted].

    [6] [Source deleted].

25. Also submitted was a letter from [Clinician A], mental health clinician, Specialist Mental Health Team, at [Health Service 1] dated 9 December 2022.  In it, [Clinician A] states, among other things, that the applicant: was referred to [their service] in April 2018; was seen by their psychiatry registrar, [Doctor A] in August 2020; and has had a total of five sessions with [Doctor A] to date.  [Clinician A] states that [Doctor A’s] notes indicate: a diagnosis of Major Depressive Disorder, and the applicant continues to experience ongoing symptoms from this condition; the applicant is particularly anxious in the lead up to the Tribunal hearing; the applicant currently takes two medications to assist with his mental health condition (Desvenlafaxine and Mirtazapine); and the applicant will require ongoing psychiatric care as well as ongoing counselling from a specialist torture and trauma counselling service.

26. In his oral evidence to the Tribunal, the applicant described his background, reasons for leaving Sri Lanka in 2009, activities in Australia, and fears if he has to return to his home country. 

27. He said he was born and grew up in [Village 1], [Town 1], a then LTTE controlled area in Batticaloa district.  He lived there with his parents and [siblings] until he was around 13 when his mother sent him to live in a hostel in an army-controlled area of Batticaloa district.  He lived in that hostel until he was around 20. 

28. The applicant said sometime in 2001 his mother was taken by the LTTE and held by them for 17 days.  At that time the LTTE were taking one family member. His mother was taken as his father was in hiding (as he often did when news spread that the LTTE were looking for recruits), he was living away from home and his [siblings] were still young.  On hearing this news, the applicant approached the LTTE and joined them, which allowed his mother to be released.  He stayed with the LTTE for around seven to eight months before he escaped one night with another recruit, and went to hide out in Colombo for another five or so months, before returning to Batticaloa and staying with his parents in [Town 2], a government-controlled area in Batticaloa district.  His parents and [siblings] had gradually moved to [Town 2] after he had joined the LTTE.    

29. Whilst he was with the LTTE, the applicant said he undertook weapons training for the first three months, utilising real weapons towards the end.  During this period some members of the LTTE leadership would monitor him and others, in particular on Sundays, when they would rest, play and interact with each other informally to gauge their skills to determine the roles to which they would be best suited.  The leadership determined the applicant, due to his education and communication skills, would be well-matched to the LTTE’s political division.  He then spent the remaining months visiting villages and speaking to villagers about the LTTE.  He would stay at people’s houses at night, moving around often so as not to be detected.  He had no contact with his family during this time.  When he ran away from the house he was staying at one night (along with another person), he chanced upon some fishermen in the government-controlled area who were able to contact his mother and together they arranged for his bus ticket to Colombo, and other necessities.    

30. The applicant said he still has scars on his [body] from undertaking LTTE training in [the jungle] during this period, caused by brambles and thorns, for example.

31. In Colombo the applicant stayed at a house in [District 1], owned by a friend of a friend of the fisherman who helped him leave Batticaloa.  He did not have to pay rent but his mother sent the owner rice and other products from time to time.  He largely stayed home, watching movies.  He was supposed to register with the authorities, but did not.  After four to six months, the applicant said he returned to Batticaloa, to his parents’ house in [Town 2]. 

32. From then until he left Sri Lanka the applicant said he undertook several courses, or at least started them, including [a Subject 1] course at [a named] College in Batticaloa.  As part of that course he undertook work placements at [Agency 1] and with [Organisation 2].  He also undertook a short-term [trade] course in Colombo, travelling there from Batticaloa for the weekends, during this period. 

33. The applicant said the main reason he left Sri Lanka in September 2009 was because members of SLA intelligence along with Karuna group members had discovered his involvement with the LTTE.  They had found this out when questioning his father following an incident at a university campus in Batticaloa in around late August 2009.  The applicant had an argument with a person called [Mr B] because he had made disparaging comments about the applicant’s then fiancée, [Ms A].  The applicant kicked [Mr B’s] motorbike over and threw accelerant at the bike, which he later found out had caused it to catch fire.  The applicant also thinks the SLA may have chanced upon video footage of him speaking publicly in various villages in LTTE uniform in 2001, when they confiscated such material from LTTE premises around the country at the end of the war.

34. The applicant said after the fight with [Mr B], who he later came to know was a Karuna group member, he hid at a friend’s house in Batticaloa before leaving Sri Lanka by boat.  His friend told him [Mr B], along with SLA members, went to his house, asked his father his whereabouts, and broke his father’s [limb].  The applicant said his father told them everything, that is, how long the applicant was with the LTTE, the fact he was in the political wing, and that the family moved from an LTTE controlled area.  (The applicant assumes [Ms A] had told [Mr B] his name and address.  The applicant said he has not seen or had any contact with [Ms A] after the incident at the university campus.)

35. The applicant said the SLA and Karuna group members returned to his parents’ house each week for the next two or three months.  After that the applicant said his father was required to report each Saturday to the police station for another four to six months.  His father then went to [Country 1] to work for a year or more, holding a passport in someone else’s name, before returning to [Town 2]. 

36. When asked if his father was questioned thereafter by the authorities, or faced any problems from them or members of the Kaurna group, including [Mr B], the applicant replied ‘no’.  However when the Tribunal pointed out his claim in the January 2018 statutory declaration about his father being taken to the Sri Lankan police Criminal Investigation Department (CID) [Location 1] for questioning around a year prior (that is, in early 2017), the applicant said [Mr B] had met his father (somewhere) and took him to the [Location 1] of the CID office in Colombo.  His father paid some money and was then released, returning to [Town 2], where he lives presently with the applicant’s mother. 

37. The applicant said sometime in around 2017 one of his sister’s, who had helped organise a martyrs’ day event at her [university], was questioned by SLA intelligence members, who indicated her name and details were in their system, along with the applicant’s details.  During their questioning they asked about the applicant.  After this his sister was reluctant to return to university and took a break for a year, before returning and completing her [degree].  She is now married and settled in Batticaloa.  The applicant said his other [siblings] also continue to reside in Batticaloa. 

38. At hearing the applicant gave evidence about his involvement in diaspora activities and events in Australia, as well as his reasons for getting involved in such activities.  Specifically, he said he co-founded a [business] selling [products], [Business 1], which operated for around five years until it closed during COVID-19 related lockdowns a year or so ago.  He often spoke about issues affecting Tamils in Sri Lanka for around five minutes before each [event] at the venue. 

39. The applicant said he has also given media interviews in Australia and attended anti-Sri Lankan government protests here.  At one protest, [details deleted]. 

40. Additionally, along with [other] Tamils with adverse ASIO security assessments, the applicant said he complained to UNHRC, the HRC, the Commonwealth Ombudsman, and Amnesty International given the uncertainty and lack of transparency they faced.  He thinks the Sri Lankan government will know about this, and he faces a risk of serious harm on return as a result.   

    Findings about the applicant’s past experiences and profile

1. The Tribunal has considered the evidence before it, including the applicant’s oral evidence at hearing and the various submissions and supporting documents provided, in assessing his claims related to his past experiences in Sri Lanka, and his experiences since he has arrived in Australia. These are considered separately as follows.

   Background and LTTE involvement

2. The Tribunal accepts the applicant’s evidence about his background, family circumstances, and study and work experiences in Sri Lanka. It accepts he was born in [Village 1], an LTTE controlled area in Batticaloa district, where he stayed with his parents and [siblings] until he was around 13, before moving to a hostel in a government-controlled area of Batticaloa district.  It accepts his parents and [siblings] moved to [Town 2], a government-controlled area, sometime after he had moved.  It accepts that, during these periods, his father, who was a [farmer], would move around often to avoid being conscripted by the LTTE and/or face adverse attention from the Sri Lankan authorities. 

3. The Tribunal accepts that after high school the applicant commenced several different study pathways, including [a Subject 1] course, primarily in Batticaloa, but also in Colombo at times.  At hearing he said he did not complete most of the courses as he was unsure what he wanted to do.  The Tribunal also accepts he undertook work placements at [Agency 1] and with [Organisation 2] in Batticaloa as part of his [Subject 1] course, and worked in several jobs, including for [Employer 1].  Letters from [Agency 1] and [Organisation 2] were provided to the Department.

4. The Tribunal accepts the applicant was involved with the LTTE as claimed.  He has consistently claimed as such and his oral evidence at hearing about how this came about, his experiences with the LTTE and his specific role was reasonably coherent, spontaneous and did not appear to be embellished.  The Tribunal accepts he was involved with the LTTE for around eight months in 2001 and during that time underwent weapons training and spoke publicly (wearing LTTE uniform) to villagers in LTTE controlled areas in Batticaloa district about the LTTE’s aims, among other matters.  Based on his oral evidence, the Tribunal accepts he was a low level LTTE member, part of the political division in Batticaloa district, who gave speeches following an LTTE script, developed by others, as he indicated at hearing.

5. Further, the Tribunal accepts the applicant managed to escape the LTTE after around eight months, and spent five or so months laying low in Colombo before returning to Batticaloa.  At hearing, when asked if the LTTE were able to locate him after he escaped, he said they did not, and that when he returned to Batticaloa from Colombo he resided in a government-controlled area, which the Tribunal accepts.   

   Fears from [Mr B]/Karuna group

6. The Tribunal has considered the applicant’s claims to fear serious harm from Karuna group members (and army intelligence members) sparked by an altercation he had with one of their members, [Mr B], at a university campus in Batticaloa in around late August 2009.  The applicant claims he knocked over [Mr B’s] motorbike, setting it alight with an accelerant he obtained from a nearby shop, as he was angry about hearing [Mr B] make disparaging comments about his then fiancée, [Ms A].  He claims that afterwards, [Mr B], along with other Karuna group members and SLA members, visited his parents’ house looking for him, and broke his father’s [limb].  Further, he claims they visited his parents’ house weekly thereafter for two or three months and after that his father had to report to the police station every Saturday for another four to six months.  He also claimed in 2017 his father ran into [Mr B] who took him for questioning to the CID ([Location 1]) in Colombo and he was released after the payment of money.

7. The applicant claims the SLA found out about his involvement with the LTTE because his father told them when they questioned and assaulted his father at his home shortly after the incident with [Mr B] in August 2009.  The SLA also indicated they had video footage of the applicant giving speeches in LTTE uniform another time they visited his parents in that period.

8. The Tribunal has several concerns with the applicant’s claims in this regard, for the following reasons.  As noted at hearing, he failed to mention the fight with [Mr B] at all in the first statutory declaration he provided to the Department (dated November 2009).  In that statutory declaration he states, among other things, that in September 2009 men in military clothing had searched for him, said they had CDs of him speaking publicly in LTTE uniform, threatened to kill the applicant, and beat up his father; however, there was no mention of [Mr B] or the Karuna group.  At hearing the applicant said he failed to mention this incident initially because he did not want to embarrass [Ms A] if such information came out at a later date.  However, the Tribunal considers it unlikely that, if the applicant genuinely feared [Mr B], an alleged Karuna group member with links to the SLA, he would fail to mention this fact initially to the Department, even if concerned such information may embarrass [Ms A].

9. Additionally, the applicant’s evidence about the Sri Lankan authorities’ ongoing interest in him (including through his father), allegedly sparked by this incident with [Mr B] (a Karuna group member), has been inconsistent and has grown at times.  For example, at hearing the applicant said Karuna group members and SLA intelligence members (along with [Mr B]) first visited his father around one or two days after the incident, where they questioned him and broke his [limb]. Thereafter they visited every week for around two to three months, and after that his father had to report to the police station every Saturday for four to six months. Yet in his 1 October 2015 statutory declaration provided to the Department, the applicant states his father was instructed (until he surrendered the applicant) to report to the army post every Saturday, and after returning from around four years in [Country 1], his father was required to report to the SLA once every three months.

10. Furthermore, the Tribunal notes that at hearing the applicant did not mention that his father was taken for questioning to the CID’s [Location 1] in Colombo as indicated in his January 2018 statutory declaration provided to the Department, until prompted.  This included when the applicant was asked specifically if his father experienced any further problems from [Mr B] and/or the Karuna group and/or the authorities in relation to the applicant or for any other reason, after he stopped reporting weekly to the police station. 

11. When asked why he failed to mention this initially at hearing, the applicant said he may have mixed up some dates.  However, even if the Tribunal accepts that he may have mixed up some dates, this does not explain why the applicant failed altogether at the hearing to mention his father had been taken to the [Location 1] CID office in Colombo, a place notorious for questioning and interrogation. 

12. The Tribunal also notes the applicant made no mention at all of his father being taken to the [Location 1] CID office in Colombo (and his mother having to pay [amount] lakhs for his release) in his otherwise quite detailed written statement dated November 2022, which was provided to the Tribunal.

13. The applicant’s oral evidence about this alleged incident was also vague and lacking in detail, in contrast to the detailed description contained in the January 2018 statutory declaration about the incident.  At hearing the applicant said his father was taken to the CID in Colombo by [Mr B], yet he did not provide any further details or context, such as where he had met him.  In addition, there is no mention of [Mr B] in the January 2018 statutory declaration in relation to this incident. 

14. Given these concerns, the Tribunal does not accept this aspect of the applicant’s claims.  It is willing to accept the applicant may have had been engaged to a woman called [Ms A] in Sri Lanka and that he had an altercation with a man called [Mr B] at a university campus one day in 2009 over [Ms A].  However, the Tribunal does not accept [Mr B] was a Karuna group member who, along with SLA intelligence members, threatened and harassed and harmed the applicant’s father in a bid to locate the applicant, including breaking his [limb] on one occasion. 

15. It follows that the Tribunal also does not accept the applicant’s parents were visited weekly by [Mr B] and other Karuna group and/or SLA members after this incident for one to two months, or that his father had to report to the police station weekly for four to six months thereafter. 

16. The Tribunal also does not accept the applicant’s father was taken to the [Location 1] CID Colombo office in 2017, interrogated and released once money was paid, as claimed in his January 2018 statutory declaration (and at hearing). 

17. Given these findings, the Tribunal does not accept the applicant’s father told [Mr B] and any Karuna group members and/or the Sri Lankan authorities about his past involvement with the LTTE, or that the authorities had indicated to his father that they have video footage showing the applicant giving speeches in LTTE uniform when they visited his parents’ house after the alleged incident with [Mr B], as claimed. 

18. The Tribunal accepts the applicant’s sister may have been questioned about her involvement in martyrs day events at her university in Batticaloa by the authorities, sometime in 2017, as claimed, given that the Sri Lankan authorities are sensitive about such events.[7]  They may have asked her brother’s whereabouts during this time, given he has been outside Sri Lanka for several years, in general terms, but the Tribunal does not accept the authorities made specific enquiries about his LTTE involvement, given it does not accept they had found out about his role with the LTTE following a dispute with [Mr B]. 

    Activities in Australia

    [7] DFAT Country Information Report, Sri Lanka, 23 December 2021 at 3.54.

19. Based on his oral evidence describing his involvement in certain activities in Australia including establishing [Business 1], and his motivations for doing so, as well as related media articles and social media articles and posts, the Tribunal accepts the applicant established (along with others) [Business 1], which operated for around five years before COVID-19 and related restrictions led to its closure in 2020.  It has been described as a social enterprise supporting people seeking asylum.  The Tribunal accepts that in that role the applicant talked openly about his own experiences in Sri Lanka and Australia, and advocated for the rights of Tamils in Sri Lanka at the venue, to several thousands of people over the years.  It accepts he also spoke to media about [Business 1] and his own experiences. 

20. Additionally, the Tribunal accepts the applicant has attended several anti-Sri Lankan government protests and Tamil commemorative events since being released from detention in 2014, including a [protest] in 2017. The Tribunal accepts that at times the applicant had altercations or arguments with others at the events, and was sometimes threatened as claimed, possibly by media representatives [people] sympathetic to the Sri Lankan government in power at the time. 

21. The Tribunal also accepts the applicant’s claims that there were photographs and videos taken of those present at such events, including (possibly) the applicant. There are Sri Lankan (and other) media reports of such events, which show photographs of those attending.[8]  This was confirmed by [Mr A], a member of [Community Organisation 1], in his statutory declaration provided to the Department, who was at a protest attended by the applicant.  He confirms that: in the [media] article about the protest, the applicant is [deleted]; many people took photos and videos of them at the protest and some of these people were from Sri Lankan news media outlets, some were possibly from Sri Lankan intelligence, and at least one person was from the Sri Lanka consulate; and one of the men who took photographs of them got into an argument with the applicant and threatened him.

    [8] [Deleted].

22. [Mr A] also states that: the applicant attended other protests and events concerning the rights of Tamils in Sri Lanka and of Tamil refugees around the world; he has seen him attend Tamil heroes’ day events on several occasions; he has seen him attend other protests against land grabbing in Sri Lanka; and he also takes part in [Community Organisation 1] meetings.  The Tribunal accepts his assertions in this regard.  

23. Further, the Tribunal is satisfied after hearing his oral evidence that the applicant has several motivations for attending such events, establishing [Business 1], and in general speaking out about Tamil rights in different forums, which include his sense of the injustice that Tamils have experienced (and continue to experience) and wanting to bring attention to their plight. 

24. The Tribunal notes that in his statutory declaration provided to the Department, [Mr A] states that he believes the applicant’s advocacy for the rights of Tamils in Sri Lanka is genuine and driven by his core beliefs in equality and political freedom.  He adds that he believes being able to advocate for the rights of Tamils is now fundamental to the applicant and he will continue to do so, despite the threat of harm if he is returned to Sri Lanka.  On this basis, combined with the applicant’s oral evidence describing his involvement in such activities and motivations for doing so, the Tribunal is satisfied the applicant wants to support and promote Tamil refugees in Australia and continue to promote and raise awareness about the situation and the rights of Tamils in Sri Lanka.  It is satisfied he is not engaging in these activities for the sole reason of strengthening his refugee claims. 

25. Given this finding, the Tribunal also accepts that the applicant would continue to advocate for the rights of Tamils in some capacity on return to Sri Lanka, if not for the fear of doing so.

26. The Tribunal also accepts the applicant was one of the victims of the Department’s data breach, when some personal information of several people held in immigration detention in February 2014 was released for a brief period of time.  Additionally, the Tribunal accepts the applicant [protested] whilst in detention on hearing about his adverse ASIO security assessment, and (along with others, but separately), lodged several complaints about his situation, including to the UNHRC, Amnesty International, the HRC and the Commonwealth Ombudsman.  The situation of these Tamils held in prolonged detention with adverse security assessments has been reported over the years by different media outlets in Australia, and on occasion elsewhere.  A selection of these articles was provided to the Department by the applicant, and the Tribunal on review.

    Well-founded fear of persecution in the future

27. Given these findings about the applicant’s past experiences and profile, the Tribunal has considered below whether the applicant faces a well-founded fear of persecution on return to Sri Lanka, in view of (among other things) the passage of time and change in the country situation (relevant to his claims).

28. As the Tribunal does not accept the applicant’s claims to have been of adverse interest to the Sri Lankan authorities and/or the Karuna group in the past as a suspected former LTTE member, triggered by a dispute with a Karuna group member ([Mr B]), it finds he does not face a real chance of serious harm from the authorities, Karuna group members, [Mr B] or anyone else on return to Sri Lanka for this reason.  

29. It is submitted the applicant faces a well-founded fear of persecution on return to Sri Lanka from the authorities (including the CID), past and/or present members of the Karuna group/Tamil Makkal Viduthalai Pulikal (TMVP)[9], ultra-nationalists, other inmates while in remand and/or in prison, prison guards and/or other Sinhala locals due to (either cumulatively or separately):

    i.His Tamil ethnicity, and his experiences of past harm at the hands of the Karuna group and Sri Lankan authorities;

    ii.His political opinion: anti-government and/or anti-Karuna group (TMVP);

    iii.His imputed political opinion: pro-LTTE and/or pro Tamil separatist; and/or

    iv.His membership of several particular social groups, variously described.[10]

    [9] The TMVP is a political party in Sri Lanka, previously known as the Karuna group.

    [10] That is: a Tamil who is perceived to have information in relation to current and past LTTE activity within the Tamil diaspora; a Tamil person and member of the Tamil diaspora who is perceived to have information which may assist in, and/or have persona interests in, fomenting the resurgence of the LTTE or post-conflict Tamil separatism; and/or a person who is perceived to have been a particularly dangerous person who is pro Tamil-separatist for several reasons articulated in the submission (including, for example: his origin from a former LTTE controlled area; his conscripted service to the LTTE; his work placement with [Organisation 2], which ASIO initially suspected was undertaken as a ‘spy’ for the LTTE; the fact he was deemed a security risk, even to Australia, on account of his LTTE activities; the perception he has particular information which may assist in stopping the resurgence of Tamil separatist activity in Sri Lanka; his detention in Australia for over five years, with former LTTE members; his illegal departure from Sri Lanka (who therefore has not been rehabilitated); being subject to media publicity during prolonged immigration detention; media attention as a vocal Tamil advocate as part of his involvement with [Business 1]).

30. In the representative’s submission to the Tribunal she refers to country information about the situation of the Tamil diaspora, former LTTE members and Tamil separatists (actual and perceived), and others who might promote Tamil nationalist sentiment.  Recent trends are highlighted, including the fact that the level of ethnic and secular tension in Sri Lanka is increasing, with numerous warnings of a backslide towards periods of intercommunal violence. 

31. The representative also argues that the risks to the applicant will be further exacerbated by the fall out of the COVID-19 pandemic and the current economic crisis in Sri Lanka; these will hinder his ability to subsist, access medical attention and relocate.  

32. The representative submits that the most recent DFAT report does not reflect the constantly evolving, volatile and increasingly restrictive political environment in Sri Lanka.  She refers to various sources which indicate a great risk of increasing ethnic violence and repression under the guise of political activism in the future, that it is likely the protests will be ongoing, and that within this context, the safety for returnees in the applicant’s position is yet to be tested and cannot be said to be safe.  She also refers to the Sri Lankan government’s use of emergency regulations to harass and arbitrarily detain those involved in protest activities.

33. A key focus of the representative’s submission is the potential risk the applicant faces on return to Sri Lanka from the authorities due to his adverse security assessment in Australia, and resultant detention for several years.  On this matter she argues (in summary) as follows:

    ·As this information was likely shared with the Sri Lankan authorities, it means the applicant will be imputed as being pro-LTTE and/or having useful information in regard to others who may be pro-LTTE that would be of interest to the authorities.

    ·Given the prevalence of interrogative techniques, including torture, to obtain information from detainees, and reports about the prevalence of the use of the Prevention of Terrorism Act (PTA), the applicant faces a significant risk of harm.

    ·The applicant’s poor mental health means he would be particularly vulnerable in this regard. 

    ·The risk to the applicant is not negated by the possibility the Sri Lankan authorities may be aware the security assessment was downgraded.  Whilst not privy to the reasoning, she notes the assessment was made in relation to Australia’s security, not Sri Lanka’s, and the revised assessment does not necessarily reflect the position of the Sri Lankan authorities. 

    ·The data breach, and the fact the applicant has spoken openly about his experiences in immigration detention in Australia over a number of years when interviewed by media in relation to [Business 1], means the Tribunal cannot rule out that the Sri Lankan authorities have become aware of the applicant’s detention, personal details, and reason for the detention (that is, because he was subject to an adverse ASIO security assessment).

    ·Additionally, the applicant’s prolonged detention due to his adverse ASIO assessment will reinforce the idea he was involved with the LTTE in a significant way.  The applicant fears that if the authorities in Sri Lanka are not yet aware of this, they will become aware on his return; this will come to light during questioning at the airport and an investigation due to his illegal departure from Sri Lanka in 2009.

    ·The fact the LTTE was a proscribed terrorist organisation in Australia, as reported by DFAT,[11] may account for his lengthy detention of approximately five years after the adverse security assessment by ASIO.  Reference is made to reports of those detained for a long period of time in the media (some of which were submitted to the Tribunal)[12].

    [11] DFAT Country Information Report, Sri Lanka, 23 December 2021 at 3.39.

    [12] type="1">

    The representative refers to a finding of the UK Upper Tribunal report in regard to Tamil separatism that returnees to Sri Lanka who appear on a ‘watch list’ include those who, because of their existing profile, are deemed to be of sufficiently strong adverse interest to warrant detention once they have travelled back to the home area or some other place of resettlement.  She submits this is relevant in the applicant’s case.

    The Tribunal has considered the representative’s submissions on this matter and the evidence of the applicant, as well as independent country information (summarised where relevant below) about the situation in Sri Lanka for someone with the applicant’s past experiences and profile, to determine if his fears on return to Sri Lanka from the authorities, based on his (imputed and/or real) anti-government/pro-LTTE/pro-Tamil separatist political opinion in the foreseeable future, are well founded.

    Sri Lanka’s long standing civil war ended in May 2009 and the security situation, particularly in the north and east, improved significantly.  When the Sirisena government took power in 2015 there were further improvements, with DFAT reporting in its November 2019 country information report that, among other things, the monitoring and harassment of Tamils in day-to-day life had decreased significantly under the Sirisena government.  In that report, DFAT also assessed that the LTTE was a spent force and Tamils with links to the LTTE were generally able to lead their lives without concern for their security as a result of their past association with the LTTE.[13] 

    [13] DFAT Country Information Report, Sri Lanka 4 November 2019 at 3.77.

    However, there have been notable changes to the power base in Sri Lanka since, with the election of Gotabaya Rajapaksa (the defence minister during the last phases of the war when his brother, Mahinda Rajapaksa, was president) as the country’s president in November 2019, and Mahinda as Prime Minister, in late 2020.  Under Gotabaya’s rule several other Rajapaksa relatives became cabinet ministers, up until recently (discussed further below); this resulted in fundamental changes to policies on ethnic relations, among other things. 

    Shortly after Rajapaksa’s party (the Sri Lanka Podujana Peramuna) won a two thirds majority in Parliament, on 20 October 2020, the 20th amendment to the constitution was endorsed by parliament, which dismantled pro-transparency and accountability reforms in the 19th amendment (measures introduced by the previous, Sirisena government), and enhanced executive control over the legislature and judiciary.  DFAT, in its latest report on Sri Lanka, notes that concerns have been raised about the amendment fundamentally eroding the independence of key commissions and institutions in Sri Lanka as a consequence.[14] 

    [14] DFAT Country Information Report, Sri Lanka, 23 December 2021 at 2.31.

    In February 2021, in commentary about the return of the Rajapaksas, Alan Keenan, Senior Consultant for the International Crisis Group (ICG), Sri Lanka stated that Sri Lanka was firmly in the hands of its most nationalist and militarist elements.  He notes that their commitment to authoritarian, militarised governance and to the political and cultural supremacy of the Sinhala and Buddhist majority pose a growing threat to Sri Lanka’s battered democratic institutions and to its political stability.  Furthermore, he states that the militarisation of government administration had led to an increase in state surveillance and harassment of civil society activists, particularly in Tamil-majority districts, and the government’s Sinhala nationalistic rhetoric and discriminatory polices was also leading to a dangerous rise in religious and ethnic tensions.  Mr Keenan states further that: 

    Meanwhile, long-running tensions between the Sinhala-dominated state and security forces and the Tamil ethnic minority continue to simmer. Although a return to violent militancy or terrorism appears unlikely, particularly in view of the state’s massive military presence in Tamil-majority districts of the north and east, animosity runs deep. Suffering from decades of political marginalisation and inequitable economic development, Tamils in the north east fear a slow but steady erosion of their cultural and demographic status in the region. With the military playing a direct role in district administration, and nationalist Buddhist practices given official state sanction, Tamils, like Muslims, are increasingly worried about further land seizures for military bases or Buddhist shrines and temples. Surveillance is tight and intimidation of political activists by police and military has increased. Small acts of resistance could easily turn violent and offer an excuse for the military to crack down and further entrench its power.[15]

    [15] Alan Keenan, Senior Consultant, Sri Lanka, International Crisis Group, Commentary/Asia, ‘Sri Lanka: Prevention Should be at Heart of New Human Rights Council Resolution’, 25 February 2021. 

    In an oral update about the human rights situation in Sri Lanka by Michelle Bachelet, the United Nations High Commissioner for Human Rights, on 13 September 2021, she observed the following concerns (among others) about the heavily militarised and authoritarian situation in Sri Lanka under the Rajapaksas:

    The current social, economic and governance challenges faced by Sri Lanka indicate the corrosive impact that militarisation and the lack of accountability continue to have on fundamental rights, civic space, democratic institutions, social cohesion and sustainable development.  

    …

    Regrettably, surveillance, intimidation and judicial harassment of human rights defenders, journalists and families of the disappeared has not only continued, but has broadened to a wider spectrum of students, academics, medical professionals and religious leaders critical of government policies. Several peaceful protests and commemorations have been met with excessive use of force and the arrest or detention of demonstrators in quarantine centres.[16]

    [16] 48^th session of the Human Rights Council, Statement by Michelle Bachelet, UN High Commissioner for Human Rights, United Nations Human Rights Office of the High Commissioner, ‘Oral Update on the human rights situation in Sri Lanka’, 13 September 2021.

    In its most recent country information report on Sri Lanka, published in December 2021, DFAT voices concerns about the Rajapaksa family’s consolidation of control over the machinery of government in Sri Lanka, stating that:

    The family’s return to government has seen greater centralisation of power in the executive branch and the increased militarisation of civilian government (such as the filling of civilian positions with former military officers). Some observers have called these measures ‘democratic backsliding’; the weakening of institutions that provide democratic accountability.

    Prime Minister Mahinda Rajapaksa’s earlier 10-year presidency (2005-2015) was also marked by allegations of democratic backsliding and accusations of corruption and human rights violations, including alleged war crimes against the Tamils, and harassment, arrest, and disappearance of government critics. The current government of Gotabaya Rajapaksa has sought to retain popularity within the majority Sinhalese community by highlighting their role in the defeat of the LTTE and by promoting strong state security, particularly following the 2019 Easter Sunday terrorist attacks. Local sources, Tamil and non-Tamil, told DFAT that the human rights improvements achieved under the government of Maithripala Sirisena (2015-2019), including in relation to freedom of expression, are now being reversed. Such sources regard the increasing militarisation of the civilian government, the 20^th Amendment’s centralisation of power in the hands of the executive, and the increasing use of the Prevention of Terrorism Act and other means to silence critics, as vindication of their fears...[17]

    [17]DFAT Country Information Report, Sri Lanka, 23 December 2021 at 2.32 and 2.33.

    In a December 2021 report about the growing hostility towards Muslims in Sri Lanka, the ICG states that the Rajapaksa family’s return to government put an end to tentative efforts to address the legacy of war and brought in more centralised, militarised government, anchored in Sinhala ‘majoritorism’.  It states, among other things, that Sri Lanka’s long standing ethno-religious tensions continue to linger, and the presence of hard-line Sinhala nationalists in power rules out any accommodation of Tamil political claims.[18]

    [18] Alan Keenan, Senior Consultant, Sri Lanka, International Crisis Group, ‘”One Country, One Law”: The Sri Lankan State’s hostility toward Muslims Grows Deeper’, 23 December 2021.

    Furthermore, as noted, there are reports that indicate that the monitoring, surveillance and questioning of Tamils in northeast Sri Lanka continues.  For example, DFAT states that:

    Members of Tamil community and NGOs report that authorities continue to monitor public gatherings and protest in the north and east, and practise targeted surveillance and questioning of individuals and groups.  Security forces are most likely to monitor people associated with politically sensitive issues, including those related to the war, such as missing persons, land release and memorialisation events.[19]

    [19] Ibid at 3.9.

    Communities in the north and east, according to DFAT, report that monitoring is undertaken by intelligence and the Police Criminal Investigation Department, though in many cases officers dress in plain clothes and do not identify themselves. According to local sources, those participating in public gatherings and protests are often photographed.[20]

    [20] Ibid at 3.10.

    DFAT also reports that Tamils have been arrested in 2021 under the PTA for commemoration of the war.[21] 

    [21] Ibid at 3.12 and 4.20.

    Overall DFAT assesses:

    …that surveillance of Tamils in the north and east continues, with particular surveillance of those associated with politically sensitive issues. DFAT also assesses that physical violence against those being monitored is not common, and that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment[22].

    [22] Ibid at 3.13.

    More recently, in September 2022, the United Nations’ Office of the High Commissioner for Human Rights (OHCHR) said it continues to receive reports of surveillance, intimidation and harassment of various groups in the north and east, including journalists, human rights defenders, families of the disappeared and persons involved in memorialisation initiatives.[23]

    [23] 'Situation of human rights in Sri Lanka: Comprehensive Report of the United Nations High Commissioner for Human Rights A/HRC/51/5', United Nations Human Rights Council, 6 September 2022, p.7.

    The US State Department Human Rights report for 2022, in relation to Sri Lanka, noted: ‘Throughout the country, but especially in the north and east, Tamils reported security forces regularly monitored and harassed members of their community, especially activists, journalists, and NGO staff and former or suspected former LTTE members.[24]

    [24] USSD, ‘2021 Country Report on Human Rights Practices: Sri Lanka’, page 38, 12 April 2022.

    In its World Report 2022, Human Rights Watch states that: ‘The government continued to target members of the Tamil and Muslim minority communities using the country’s overbroad counterterrorism law, and policies that threaten religious freedom and minority land rights.[25]

    [25] Human Rights Watch, ‘Annual report on the human rights situation in 2021’, 13 January 2022.

    A number of other sources report on the government’s use of the PTA against Tamils and anti-government critics, including a 2021 Freedom House Report referring to Tamils and perceived enemies of the government being detained for up to 18 months without charge.[26] In June 2022 the government announced it had been applying a de facto moratorium on use of the PTA since March 2022, however, in August 2022 three student leaders were detained under the PTA. [27] 

    [26] Freedom House, ‘Freedom in the World 2021’, section F2, 4 March 2021.

    [27] 'Situation of human rights in Sri Lanka: Comprehensive Report of the United Nations High Commissioner for Human Rights A/HRC/51/5', United Nations Human Rights Council, 06 September 2022, p.5.

    With respect to treatment of those suspected of former LTTE links, DFAT states that while the LTTE was comprehensively defeated, the authorities remain concerned over its potential re-emergence, and about separatist tendencies in general.  According to DFAT:

    …sources report that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members, supporters, and other separatists, including ‘stop’ and ‘watch’ electronic databases. DFAT understands these databases remain active. ‘Stop’ lists include names of those individuals who have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals whom the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities.[28]

    [28] DFAT Country Information Report, Sri Lanka, 23 December 2021 at 3.41.

    According to DFAT, the International Truth and Justice Project (ITJP), an NGO which documents torture and sexual violence by the security forces in Sri Lanka, claims that, while ex-LTTE cadres exist, they are no longer affiliated in any way with an extant LTTE, and are subject to harassment and discrimination by the government.  Additionally, the ITJP states that the Sri Lankan government may not accept that the LTTE is finished, arresting several Tamils in 2021 under the PTA for alleged LTTE-supportive behaviour.[29]

    [29] Ibid at 3.44.

    Additionally, the ITJP reports: that some Tamils with actual or imputed LTTE links (including those who fought for the LTTE or were part of its civilian administration) continue to report police monitoring and harassment; that multiple sources in the north told DFAT that former LTTE members, including those considered low-profile, are monitored to guard against the LTTE’s re-emergence; and that testimonies provided to the ITJP show that such harassment can include frequent visits by police, visits to family members, threats and seizure of mobile devices.[30] 

    [30] Ibid at 3.50.

    Overall DFAT assesses that, while they may be monitored, Tamils with former links to the LTTE, and who are not politically active, are generally able to lead their lives without concern for their security as a result of their past association with the LTTE[31].

    [31] DFAT Country Information Report, Sri Lanka, 23 December 2021 at 3.52.

    DFAT noted that in its May 2021 decision on the refugee status of Tamil activists in the United Kingdom (UK), the UK Upper Tribunal found that the then present government of Sri Lanka was possessed of a ‘determination to prevent any form of resurgent separatism’.[32]

    [32] Ibid at 3.44.

    With respect to treatment of returnees (and failed asylum seekers), including those who departed Sri Lanka illegally (such as the applicant), DFAT states that on arrival in Colombo, returnees will be presented to Sri Lankan immigration where they will be interviewed by the Chief Immigration Officer. Depending on the circumstances of their departure from Sri Lanka and their personal history, they may also be interviewed by other agencies including CID, Sri Lankan State Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI); these agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters.  DFAT reports that those who have departed illegally will be referred to the CID at the airport and charged accordingly under the Immigrants and Emigrants Act (1948) (the I&E Act). Once charged, they are taken to the courts at Negombo where they are bailed and released.[33]  Whilst penalties can include a fine and prison, DFAT is not aware of a prison sentence being given to anyone for illegal departure by itself.[34]

    [33] Ibid at 5.17.

    [34] Ibid at 5.21.

    For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.[35]

    [35] Ibid at 5.20.

    With respect to monitoring and treatment of individuals involved with diaspora Tamil groups abroad on their return to Sri Lanka, as in the applicant’s case, DFAT reports that in March 2021, the Sri Lankan government proscribed a number of Tamil diaspora groups including the Australian Tamil Congress and the Tamil Youth Organisation (Australia), as well as a number of individuals based in Australia, the UK, Germany, Italy, Malaysia, and several other countries.[36]  However, in August this year the Sri Lankan government de-listed some Tamil diaspora groups and individuals, including the Australian Tamil Congress.[37]

    [36] Ibid at 3.55.

    [37] Colombo Gazette, ‘Ban on key Tamil diaspora groups lifted’, 13 August 2022.

    DFAT assesses that Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their security risk profile.  The following were identified as of particular interest to the authorities: those who hold leadership positions in Tamil diaspora groups, particularly groups deemed by the Sri Lankan government to hold radical views; those who were formerly part of the LTTE, particularly in, but not necessarily limited to, high-profile roles; those who are suspected of raising funds for the LTTE during the war; and those who actively advocate for Tamil statehood.[38]

    [38] Ibid at 3.57.

100.   In the UK Home Office’s June 2021 Country Policy and Information Note on Tamil separatism in Sri Lanka, reference is made to the country guidance case of KK and RS (sur place activities: risk) Sri Lanka [2021] UKUT 130 (IAC), which held that: ‘GoSL [Government of Sri Lanka] views the Tamil diaspora with a generally adverse mindset but does not regard the entire cohort as either holding separatist views or being politically active in any meaningful way.’[39]

[39] UK Home Office, Country Policy and Information Note, ‘Sri Lanka: Tamil Separatism’, June 2021 at 2.4.2.

101.   The UK Upper Tribunal in KK and RS, among things, sought to develop the definition of what constitutes a ‘significant role’ in Tamil separatism, noting that the term ‘does not require an individual to show that they have held a formal position in an organisation, are a member of such, or that their activities have been “high profile” or “prominent”’[40].

[40] Ibid at 2.4.6.

102.   In May 2022 the Immigration and Refugee Board of Canada’s Research Directorate produced a research response about the treatment of diaspora and other returnees including failed asylum seekers to Sri Lanka.  In it, reference is made to analysis from several sources[41] about the Sri Lankan government proscribing several groups as ‘terrorists’ and naming individuals as terrorist, which includes diaspora groups advocating at the UN Human Rights Council and Tamil activities in the diaspora.  It is stated, among other things, that: the government regularly denounces Tamil diaspora organisations as fronts for the LTTE; the government perceives political activities by members of the Tamil diaspora as a primary threat to territorial integrity and national security; and the authorities conflate advocating for Tamil issues with LTTE resurgence and Tamil separatism.[42]  

[41] Including from HRW, ICG, ITJP, and academics.

[42] ‘Sri Lanka: Situation and treatment of returnees, including failed asylum seekers (2020 – March 2022)’, Response to research request LKA200988.E, Immigration and Refugee Board of Canada, 2 May 2022 [footnotes omitted].

103.   In the same report by Canada’s Research Directorate, reference is made to a report from the ITJP, which indicates that since Gotabaya was elected president in 2019: a new trend of mapping the extended family members of Tamils has begun; sources indicate that family members of ex-LTTE members living abroad have been questioned on the same days in different parts of Sri Lanka about their relation to people abroad; there has been a concerted surveillance effort within the country and at diaspora events around the world; and there have also been signs of a more sophisticated intelligence operation abroad, including infiltration attempts, spoofing and impersonation and entrapment attempts.[43]

[43] Ibid.

104.   Additionally, it is noted that in correspondence with the Research Directorate, a sessional lecturer at a Canadian university (who has conducted field work in Sri Lanka with a focus on conflict prevention and peacebuilding) opined, drawing on research complied by NGOs and the country guidance of the UK Upper Tribunal decision, that returnees involved in Tamil diaspora activism, such as by being a member of a diaspora organisation or attending a protest, and individuals with any association with the LTTE, are ‘at risk of persecution on return to Sri Lanka.’[44]  

[44] Ibid.

105.   The Tribunal notes from early May 2022 (after DFAT’s most recent (December 2021) report was published) Sri Lanka has experienced massive anti-government protests, fuelled by an economic crisis, which led to the resignation of Prime Minister Mahinda Rajapaksa and several cabinet ministers, and the resignation of Gotabhaya Rajapaksa as president.  Some protests turned violent, a state of emergency was called across the country, and Gotabhaya appointed Ranil Wickremesinghe to replace his brother as prime minister.[45] 

[45] Ian Bremmer, Time, ‘What the Crisis in Sri Lanka Means for the World’, 4 June 2022; Chris Barrett, Sydney Morning Herald, ‘Food shortages, violence, economic ruin: How did things get so bad in Sri Lanka’, 6 June 2022.

106.   On 9 May 2022, Mahinda Rajapaksa resigned from the position of Prime Minister after clashes between his supporters and anti-government protestors led to the deaths of nine people and extensive property damage across the country. Ranil Wickremesinghe, the new Prime Minister appointed on 12 May 2022, held this position until mass protests in July 2022, which saw Gotabaya Rajapaksa flee the country and resign. The protests comprised many students and also reflected a broad cross section of Sri Lankan society.  Ranil Wickremesinghe was sworn in as President on 21 July 2022; the next day he appointed Dinesh Gunawardena as Prime Minister.[46]

[46] COISS, DOHA, Situational Update Sri Lanka, 17 August 2022.

107.   There are indications of ties between the new appointments and the former regime. Ranil Wickremesinghe, a member of the centre-right United National Party (UNP), has close ties to the military and is generally considered a Rajapaksa ally.[47] Prime Minister Gunawardena, a Rajapaksa loyalist and member of the SLPP is a former minister and Sinhala nationalist.[48]  Reports indicate that the new cabinet appointed by President Wickremesinghe was essentially the same as the old one, with the exception of the Foreign Affairs Ministry.[49]

[47] Sri Lanka’s crisis is not just about the economy, but a long history of discrimination against minority groups', Niro Kandasamy, The Conversation, 14 July 2022.

[48] 'Dinesh Gunawardena | The Rajapaksas’ man', Meera Srinivasan, Hindu, The, 31 July 2022; 'Sri Lanka towards a government of national unity', Asia News IT, 25 July 2022.

[49] 'New interim cabinet of ministers sworn in', Colombo Page, 22 July 2022.

108.   On 22 July 2022, the government commenced a crackdown on the protest movement, arresting leaders and removing the ‘GotaGoGama’ protest camp at Galle Face Green[50].  According to Human Rights Watch, over 50 people, including lawyers and journalists, were beaten and injured.[51] The United Nations, as well as several human rights groups, expressed concern at the arrest of protest leaders.[52] A Presidential Commission of Inquiry has been established to ‘investigate and inquire into the loss of life and injury to persons, damage and destruction to property due to vandalism of all forms including arson, and looting and theft’ that took place between 31 March 2022 and 22 July 2022.[53]

[50] 'Sri Lanka: Forces raid anti-government protest camp', Ethirajan Anbarasan & George Wright, British Broadcasting Corporation (BBC), 22 July 2022, 20220722093257; 'Use of armed forces to suppress civilian protests despicable: BASL', The Morning, 22 July 2022.

[51] 'Sri Lanka: New President Should Chart Path Upholding Rights', Human Rights Watch (HRW), 9 August 2022.

[52] 'Sri Lanka: UN human rights experts condemn repeated use of emergency measures to crackdown on protests', United Nations Office of the High Commissioner for Human Rights (OHCHR), 8 August 2022; 'Sri Lanka: End government crackdown on peaceful protesters', Amnesty International et al, 5 August 2022; 'Concerns as Sri Lanka arrests top protest leader Joseph Stalin', Aljazeera, 4 August 2022.

[53] Period to inquire into violent incidents and assess damages due to unrest extended till July 22', Colombo Page, 4 August 2022.

109.   Commentators have described the protest movement as multi-ethnic and multi-faith with Buddhists, Muslims, Hindus and Christians being active in the protest movement, as well as both Tamils and Sinhalese, and observe that protests took place across the country, although there were fewer in the north.  It has been suggested that Tamils in the north have been more cautious due to militarisation, with 14 out of Sri Lanka’s 21 Army divisions  stationed in the north, where the army dominates the economy and civil society. 

110.   Although significant, the Tribunal is of the view that it remains too early to determine what such a political shift following the resignation of the Rajapaksas may look like and what it might mean for someone like the applicant, as a Tamil man from the east and a former LTTE member (even if only briefly and at a low level), who has been active in diaspora activities and been subject to an ASIO adverse security assessment in Australia.  Even though Gotabhaya has resigned (and others), it does not necessarily follow that the changes he brought about, including increased militarisation, centralisation of power (and increased executive power) and erosion of democratic institutions, as well as increased surveillance of Tamils in the north and east and abroad, will cease or be substantially wound back any time soon.  Alan Keenan, ICG consultant, in an April 2022 question and answer session about the then unfolding political crisis in Sri Lanka, opines that whilst the emergence of a broad-based popular movement against autocratic rule in Sri Lanka is for many a welcome change, in a country traditionally divided along ethnic and religious lines, the situation is volatile and how that translates into any real progress remains to be seen, even if Gotabhaya does resign (which he has since done).[54]

[54] Alan Keenan, Senior Consultant, Sri Lanka, International Crisis Group Q&A/Asia, ‘Sri Lanka’s Economic Meltdown Triggers Popular Uprising and Political Turmoil’, 18 April 2022.

111.   Such country information as set out above indicates the Sri Lankan government takes a particular interest in those who are involved in diaspora activities, and with those issues that they consider are politically sensitive, such as memorialisation events and/or anything perceived to be promoting Tamil separatism, and/or related to accusations of war crimes.  In the applicant’s case, as he departed Australia illegally, and given his length of time out of the country, it is likely he will come to the immediate attention of the authorities on return.  During this questioning, his involvement with the LTTE in 2001, and more recent involvement in Tamil diaspora events in Australia is likely to become known, particularly given he is one of several Tamils who were subject to adverse security assessments by ASIO, and detained for five years until ASIO issued another (non-prejudicial) security assessment: which has been reported upon.  The applicant has lodged complaints about his treatment and spoken out about his experiences, and more broadly about Tamil rights and injustices Tamils in Sri Lankans face, in various forums over the years in Australia, including at protest events, at [Business 1] and to the media.  He has been threatened by people attending some of these events. 

112.   Even if this does not occur immediately on arrival, it is likely the authorities would come to know about, or strongly suspect, his support for Tamil activities, including memorialisation events and anti-Sri Lankan government protests abroad.  As noted earlier, DFAT (and others) notes that surveillance of Tamils in the north and east continues by the security forces, particularly those associated with politically sensitive issues related to the war, including missing persons, land release and memorial events, and that communities report that monitoring is undertaken by military intelligence and the Police CID.  

113.   If detained and questioned about his involvement in diaspora activities, adverse ASIO security assessment and illegal departure, country information indicates that there remains a real risk of ill treatment or harm requiring international protection, including torture.  DFAT and other sources report that the PTA has recently been used against Tamils, as noted.[55]

[55] DFAT Country Information Report, Sri Lanka, 23 December 2021 at 4.23.

114.   Additionally, DFAT assesses that whilst the use of torture has decreased since the end of the war, it is still used, including as a routine tool of policing.  It adds that because few reports of torture are verified within Sri Lanka, it is difficult to determine the exact prevalence, but ‘multiple domestic and international sources consider it to be common’.  DFAT assesses that those detained by the authorities in Sri Lanka face a moderate risk of torture, especially those who challenge or are perceived to challenge the government.[56]  The Tribunal considers the applicant, as a Tamil from the east, who was involved with the LTTE, with an adverse ASIO security assessment and more recently due to his involvement in Tamil diaspora activities in Australia, may fall into this category. 

[56] Ibid at 4.17 & 4.18.

115.   Additionally, the Tribunal accepts the applicant would be politically active on return to Sri Lanka in some capacity if it were not for fear of persecution in doing so.  In his oral evidence to the Tribunal, he spoke of his desire to speak out about ongoing rights abuses Tamils face, as he has in the past in various forums in Australia, including to the media.  His commitment in this regard has been confirmed by his friend who co-founded [Business 1] with him, and by a member of [Community Organisation 1].  If he does become politically active in some capacity in opposition to the government on return, given the highly charged political environment and the fact the architecture set up by the Rajapaksas remains in many ways, it is not far-fetched that he may be questioned by the authorities; if so, his past support for the LTTE, adverse ASIO security assessment (and prolonged detention) in Australia, and support for diaspora activities in Australia, are likely to be revealed.

116.   Given what it accepts of his past experiences and profile and that he may be politically active in support of Tamil rights in some capacity on return, the Tribunal considers he may be imputed with a pro-Tamil separatist political opinion, which places him at risk of harm, as noted by country information referenced earlier.

117.    In making this assessment, the Tribunal has taken the applicant’s personal vulnerabilities into account in assessing the seriousness of any potential harm: AGA16 v MIBP [2018] FCA 628. At hearing the applicant disclosed he witnessed his cousin being shot and killed by the SLA in his home village when he was [age], and that he was sexually assaulted by older boys when he first moved to the hostel in an army-controlled area of Batticaloa when he was around [age] years old. These, and other traumatic events in his life including his travel to Australia by boat, and a prolonged (and uncertain) period in detention, have contributed to his at times poor mental health. Although he had not raised these claims before, the Tribunal accepts they occurred, noting it is not unusual for victims of sexual assault (for example) to delay disclosure. Further, he has been diagnosed with major depressive disorder, evidenced by a letter from [Health Service 1], where he has received psychiatric care recently, and before that undergoing regular counselling at [Agency 2], according to his evidence at hearing.

118.    The Tribunal accepts the applicant witnessed the murder of his cousin when young and was subject to sexual violence in the past in Sri Lanka (among other traumatic events), and accepts he is psychologically vulnerable due to these past experiences.  It accepts he continues to experience symptoms of depression, as indicated by the medical reports provided, which he attempts to manage through medication, counselling and other psychiatric care, and which has been exacerbated by his prolonged detention and his uncertain status here.  He would be returning to a country where some of these events happened and where, more generally, the country is in a situation of significant political insecurity and unrest.  Taking these considerations into account, the Tribunal is satisfied any future harm or even threats of harm the applicant may experience could amount to serious harm as contemplated in the Act.

119.   Accordingly, the Tribunal accepts that should he return to Batticaloa, Sri Lanka, now or in the foreseeable future, there is a real chance the applicant will face serious harm from the authorities as required by s 5J(4)(b) of the Act, in that it involves a threat to his life or liberty or significant physical harassment or ill-treatment, for the purposes of s 5J(5)(a).  The Tribunal finds the applicant’s imputed and/or actual (anti-government/pro-LTTE/pro-Tamil separatist) political opinion is the essential and significant reason for the persecution that the applicant fears, as required by s 5J(4)(a).  He may be imputed with such a political opinion for a combination of reasons related to his: Tamil ethnicity; past involvement with the LTTE; involvement in Tamil diaspora activities in Australia, including protesting politically sensitive issues such as allegations of war crimes against the Sri Lankan government and attending Tamil commemorative events; and adverse ASIO security assessment, resulting in protracted detention here. 

120.   Additionally, the Tribunal is satisfied that the persecution which he fears involves systematic and discriminatory conduct, as required by s 5J(4)(c), in that it is deliberate or intentional and involves his selective harassment for reason of his (actual or imputed) political opinion. 

121.   A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.

122.   A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable, and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).

123.   In this case, as the applicant fears serious harm at the hands of state actors, the Tribunal is not satisfied that the effective protection measures as per s 5LA are available to the applicant in Batticaloa provided by the state, party or organisation. The Tribunal finds that the applicant would not be able to access effective protection if returned to Sri Lanka for the purposes of s 5LA(2).

124.   The Tribunal has gone on to consider if the real chance of persecution from the authorities in Batticaloa relates to all areas of the country.  As the state authorities that he fears exist nationally, the Tribunal is not satisfied that there is any part of Sri Lanka in which the applicant would be safe from the persecution that he fears based on his actual or imputed political opinion.  The Tribunal is satisfied the applicant would face a real chance of persecution in all areas of Sri Lanka and therefore he satisfies s 5J(1)(c).

1. The Tribunal notes that s 5J(3) states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience or conceal an innate or immutable characteristic. In this case, the Tribunal is satisfied that the modification would require the applicant to ‘alter his or her political beliefs or conceal his or her true political beliefs’. Therefore, s 5J(3) does not apply.

126.   Accordingly, and for the reasons above, the Tribunal finds that the applicant faces a well‑founded fear of persecution from the authorities due to his imputed or actual political opinion if he returns to Sri Lanka, now or in the reasonably foreseeable future. The Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of s 5J.

1. In considering whether he comes within the definition of a refugee, contained in s 5H, the Tribunal accepts that he is outside the country of his nationality and unable to return to it owing to his well‑founded fear of persecution. Therefore, he meets the criteria in s 5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s 5H(2) apply to the applicant.

2. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of s 36(3) of the Act.

129.   Given these findings, the Tribunal has not gone on to consider other aspects of the applicant’s claims and submissions.   

CONCLUSION

130. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

DECISION

131. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Nicole Burns
Member

Attachment A – Procedural history

Applicant leaves Sri Lanka by boat	[September] 2009
Applicant detained on Christmas Island	[October] 2009
Applicant attends Entry Interview	25 October 2009
First statutory declaration	27 November 2009
Applicant lodges a Refugee Status Assessment (RSA)	17 December 2009
RSA positive decision: applicant found to be a refugee.  Applicant lodges a Refugee Status Assessment (RSA) application	17 December 2009
Department referred applicant to ASIO for security assessment	[December] 2009
RSA interview	8 April 2010
ASIO adverse security assessment	[June] 2011
ASIO issues non-prejudicial security assessment	October 2014
Applicant released from detention	December 2014
Section 46A application bar reversed; application allowed	[August] 2015
SHEV application lodged	16 September 2015
Second statutory declaration	1 October 2015
Third statutory declaration	22 January 2018
Decision to refuse SHEV	14 February 2018
Review application lodged	26 February 2018

Attachment  B -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…