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

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).
The applicant, who claims to be a citizen of Sri Lanka, applied for the Safe Haven Enterprise Visa (SHEV) on 16 September 2015.
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].
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.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1804998 (Refugee)

Details

AGLC: 1804998 (Refugee) [2022] AATA 5200
Case: [2022] AATA 5200
Decision Date: 21 December 2022

CaseChat Overview and Summary

The applicant, a Tamil man from eastern Sri Lanka, sought a protection visa, claiming a well-founded fear of persecution upon return to Sri Lanka. The dispute centred on whether the applicant met the criteria for a protection visa, specifically concerning his alleged past involvement with the Liberation Tigers of Tamil Eelam (LTTE), a past dispute with a Karuna group member, and his subsequent activities and adverse security assessment in Australia. The matter was before the Tribunal for reconsideration.

The primary legal issues before the Tribunal were to determine if the applicant had a well-founded fear of persecution for reasons of political opinion, whether the persecution would involve serious harm and systematic, discriminatory conduct, and if effective protection measures were available to him in Sri Lanka. The Tribunal also considered the relevance of the applicant's adverse ASIO security assessment, his prolonged detention in Australia, his involvement in Tamil diaspora activities, and his personal vulnerabilities, including past trauma and mental health issues.

The Tribunal reasoned that the applicant's Tamil ethnicity, combined with his past involvement with the LTTE, his current advocacy for Tamil rights within the Australian diaspora, and his adverse ASIO security assessment leading to prolonged detention, meant he was likely to be imputed with a pro-Tamil separatist political opinion. This imputed political opinion, coupled with the current political climate in Sri Lanka and the country's history of surveillance and potential for ill-treatment of individuals perceived as threats, created a real chance of serious harm, including torture, upon his return. The Tribunal found that effective protection measures were not available to the applicant in Sri Lanka, and that he could not reasonably modify his behaviour to avoid persecution without compromising fundamental aspects of his identity.

Ultimately, the Tribunal was satisfied that the applicant had a well-founded fear of persecution for the purposes of section 5J of the Migration Act 1958 and met the criteria for being a refugee under section 36(2)(a). Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies the criteria for a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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. 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. 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. 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. 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]. 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.

Decision

Reasons for decision

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] 48th 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 20th 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).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.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.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. CONCLUSION130. 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).DECISION131. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.Nicole BurnsMemberAttachment 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 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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 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. The most recent country information report on Sri Lanka was published by DFAT on 23 December 2021.CONSIDERATION OF Claims and evidenceRelevant background (including nationality findings) 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. 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. 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 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.