1805797 (Refugee)

[2022] AATA 5112

1805797 (Refugee) [2022] AATA 5112 (28 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1805797

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:James Lambie

DATE:28 November 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 28 November 2022 at 12:21pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – abducted by Criminal Investigations Department (CID) officers – white van abductions – extortion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZSPT v MIBP [2014] FCA 1245

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 28 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 visa on 20 June 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under s.36 of the Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).

3. The applicant appeared before the Tribunal on 1 March and 14 April 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

   Criteria for a protection visa

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

5. 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.

6. 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).

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

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

   Mandatory considerations

9. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF Claims and evidence

10. The issue in this case is whether the applicant meets the refugee criterion and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background:

11. The applicant is a [age]-year-old national of Sri Lanka. He is of Tamil ethnicity.

12. The applicant first arrived in Australia [in] May 2012 and he has remained onshore since.

13. On 15 September 2012, the applicant applied for a permanent protection visa. The application was refused by a delegate of the Minister for Home Affairs in a decision made on 25 October 2012.

14. On 27 March 2013, the Refugee Review Tribunal remitted the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Act. On 4 February 2014, the applicant’s permanent protection visa was refused by a delegate of the Minister for Home Affairs as he had failed other criteria for the grant of the visa.

15. On 20 June 2017, the applicant, by invitation from the Department, applied for a temporary protection visa. The application was refused by a delegate of the Minister for Home Affairs in a decision made on 28 February 2018.

16. On 5 March 2018, the applicant applied for merits review of the delegate’s decision to refuse his application for a temporary protection visa.

    Claims:

17. The applicant’s claims are summarised in his protection visa application, written claims and the delegate’s decision.

18. The applicant claims that from 1998 to 2012, he worked as a transport truck driver delivering fish and goods between [locations].

19. The applicant claims that in May 2011, whilst delivering fish to a [market], he was detained by the Criminal Investigations Department (CID) for a period of three days. He claims the CID blindfolded him, took him to a house and locked him in a room with metal bars across the window. He claims he was released after he paid 50,000 rupees, which were funds he received after his wife sold their home.

20. The applicant claims the CID told him that they detained him because they suspected that he was transporting [goods] for the Liberation Tigers of Tamil Eelam (LTTE), and he was poor. He claims they interrogated him and asked him what he knew of the Tamil areas. He claims they accused him of transporting goods for the LTTE. He claims the CID officers punched and slapped him during the interrogation.

21. The applicant claims he then returned to work for the transport company for a further year before he was able to depart Sri Lanka. He claims that during this time the CID visited his home a further four times, however as he was away for work, he did not have any further contact with them.

22. The applicant fears he would be targeted by the Sri Lankan authorities if he returned to Sri Lanka.

    Evidence:

23. The Tribunal has before it a range of material, including, relevantly:

    (a)the applicant’s protection visa application forms, which were lodged on 20 June 2017;

    (b)the applicant’s identity documents provided to the Department, being a copy of his Sri Lankan national identity card, Sri Lankan driver licence, Sri Lankan birth certificate and marriage certificate;

    (c)the protection visa decision record dated 28 February 2018 (delegate’s decision);

    (d)the application for review form dated 5 March 2018, which included a copy of the delegate’s decision;

    (e)Department file [number] concerning the applicant’s protection visa application, which includes all documents submitted by the applicant in support of his protection visa application, including a statutory declaration from the applicant which was sworn on 15 September 2012;  and

    (f)country information on Sri Lanka, as set out below.

    Country of reference:

24. The applicant claims to be a citizen of Sri Lanka. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Sri Lanka is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

25. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.

    Hearing:

26. The applicant originally appeared before the Tribunal at a video hearing on 1 March 2022 but the hearing was adjourned by the Tribunal because the facilities to which the applicant had access were considered inadequate.  He appeared  in person to give evidence and present arguments on 14 April 2022.  The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

27. After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.

28. The Tribunal explained that under Australian law, to be a refugee he must have a well- founded fear of persecution in Sri Lanka. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Sri Lanka. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.

29. With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Sri Lanka.

30. The Tribunal discussed his claims as summarised in the applicant’s protection visa application, written claims and the delegate’s decision. He confirmed that his claims as so summarised were not in dispute. The Tribunal asked the applicant whether those claims were accurate and complete. He stated they were and that he did not need to change them.

31. The Tribunal took the applicant to his statutory declaration of 15 September 2012 and asked him to confirm that he started work as a truck driver with a company by the name of [Employer 1] in about 2005.  He said that was correct. He told the Tribunal he was transporting [fish] and was paid about SLR 30,000 to 40,000 (about AUD$300) per month. He is married (now separated) and has [children].  His wife and children remain in Sri Lanka.

32. The Tribunal took the applicant to the claimed events of [date] May 2011.  He confirmed that he was undertaking a [delivery], accompanied by a colleague by the name of [Mr A].  The Tribunal asked how he was able to fix that date with such certainty.  He said that he had worked out that date when he first made his statutory declaration but now, with the passage of almost ten years, he was not sure how he arrived at it.  He confirmed that, on that day, he was stopped by three men in civilian clothes who were travelling in a white van  He said that white vans were well-known as the vehicle of choice of the CID.  The Tribunal asked if the details of his subsequent interrogation as claimed in his statutory declaration were correct.  He said that they were.  He said that the CID suspected that drivers were taking men and weapons into Colombo and then filling the empty trucks with supplies needed by the LTTE.  The Tribunal asked if it was correct that the CID officers told him that they would release him if he paid them SLR 100,000.  He said that it was and that he did not have that sort of money.  He confirmed that he then called his wife who said she would try to find someone to buy the house.  He said that she later informed him that she could only get SLR 50,000 for the house.  The Tribunal suggested that this amounted to about AUD$440.  He said that was correct.  The Tribunal suggested that he could sell a couple of truck tyres for that amount of money.  He said that truck tyres only went for about SLR 6000 to 8000.  The Tribunal suggested he could sell a set of truck tyres, or even ask his boss for an advance on his salary.  He said that the sale of his house was the only way he could raise this sort of money in a short time. He said that his house was very modest, made of earth with a palm-thatched roof, and this was all he could get for it.

33. The Tribunal took the applicant to paragraph 19 of his statutory declaration, in which he claimed that his brother-in-law took the payment to a bus station, as dictated by the CID.  He said that was correct.  The Tribunal asked how he was able to obtain the full proceeds of the sale of his house in only two days.  He said that it was a small house, and that was how it was done.  It sold quickly because it was worth about SLR 80,000 to 90,000.  He said there were only very basic formalities, just a contract and it is done.  He confirmed that he had no written evidence of the sale. The Tribunal asked how long it took his family to move out of the house.  He said that they did not have much and it only took a couple of days.  The Tribunal asked where the family then went to live.  He said that they found a place to rent for about SLR 3500 a month.

34. The Tribunal asked what had happened to the truck after he had been taken away by the CID.  He said he did not know and that he supposed [Mr A] had driven it back to the depot. He said that, because he was so frightened by the ordeal, it was not for another two or three months that he returned to work at [Employer 1].

35. The Tribunal took the applicant to paragraph 21 of his statutory declaration, in which he claimed that, over the following year, the CID visited his home on four occasions looking for him.  He said that was correct, but that he had not been home on those occasions because he had been away driving the truck.  The Tribunal suggested that the CID had obviously been able to find out his family’s new address.  He said the rented house was in the same area and the CID had many informers.  The Tribunal put it to him that, if the CID was really looking for him, they would have known where he worked.  He said that, as a driver, he was always on the road.  The Tribunal suggested that the CID could have waited for him at the depot or, knowing his routine, could have pulled him over on the road.  The Tribunal put it to him that this was how he was detained on the first occasion.  He agreed that this was what happened.  The Tribunal suggested that, given that he worked for [Employer 1] for a further year, the CID could have visited the [Employer 1] office at any time and asked to be put in contact with him.  He said that he thought they did not want to involve his boss.  The Tribunal put it to him that the CID knew his truck and also knew where and when he was driving it.  He said that the CID may have watched the fish market but did not see him.  The Tribunal suggested that this was an issue which the delegate had raised in the original decision:  if the CID was really looking for him, he could have been found very easily.  He said that, when his wife told him that the CID had come looking for him, he made arrangements to disappear.  The Tribunal said that it was asking about how the CID had failed to find him over the year that he had returned to work.  The Tribunal suggested that, if the abduction had happened in the way he had described, it could have been an opportunistic extortion.  It put it to him that this is what his claims suggested, because there had been no serious effort to contact him again.  He said he had described how the CID been looking for him.  The Tribunal put to him that the CID knew where he worked and that his job involved a regular round:  the CID would have known where and when his round began and the places he stopped.  This, the Tribunal suggested, was how they had first found him.  He said that they had been watching the fish market but had always missed him  The Tribunal put it to him that this was not in his statutory declaration.  It further suggested that he was first intercepted at the [fish] market and that, if he could not be found at home, that was the place he could be found.

36. The Tribunal suggested that his statement had indicated that he had family members in Sri Lanka who could have corroborated important elements of his claims, including his brother-in-law and his wife.  It said he had had significant time in which to corroborate his claims and had not done so.  He said that he had been consistent in what he had been claiming.  The Tribunal said that it accepted this, albeit that he had raised some new details at the hearing in response to the Tribunal’s questions.  He said he was now estranged from his wife and that she and her family would not help him.  The Tribunal said that that happened relatively recently and that, in the six years he had been in Australia before the estrangement, he could have obtained something from his wife or her family to support his claims.  It asked if he had other family of his own.  He said his brother and sisters would not speak to him because he had not sent them money.  The Tribunal put it to him that even limited details, such as their recalling the circumstances around the sale of his house, might have been of assistance.

37. The Tribunal took the applicant back to paragraph 12 of his statutory declaration, in which he claimed that CID officers had punched and slapped him during the interrogation.  It asked if this had caused any injuries.  He said that he continues to have pain in his neck and shoulder, which affects his ability to lift heavy weights, and sometimes headaches.  The Tribunal asked if he had seen a doctor about that.  He said he had seen doctors from time to time but had not using medication.  The Tribunal suggested that he had not submitted any medical reports.  He said his shoulder has sore from where the CID officers had struck him with a stick.  The Tribunal put it to him that he had not mentioned that before.  It asked if he had seen a doctor after the interrogation in 2011. He said he had not but sometimes saw a herbal doctor for the aches and pains.  The Tribunal asked if it was the case that he had not sought admission to a hospital.  He said that was correct.  He said that he still has pain in his shoulder when he attempts to lift a heavy weight.

38. The Tribunal asked if the CID made any inquiries of his family after he left Sri Lanka. He said they had.  In response to the Tribunal’s inquiry, he accepted that he had no evidence of that and said that none of his family or his wife’s family would help him.  The Tribunal put it to him that it was not in his statutory declaration that the CID had sought him after he left the country.  He accepted that was right.  The Tribunal asked how it was he knew that the CID continued to seek him.  He said he had guessed it.  He said he had spoken to other Sri Lankans in Australia who said the CID would do that.  The Tribunal asked if there was any specific information to the effect that the CID continued to look for him.  He said that his wife had told him that.  The Tribunal put it to him that this was not in his statutory declaration and suggested that, if this was the case, he would have mentioned it before, when it was still fresh in his mind.

1. The Tribunal put it to him that his evidence suggested that, if the CID was looking for him, it was not making much of an effort.  He said there were many transport drivers being watched by the CID.  The Tribunal asked if, even if his claims were accepted, there was any reason to think he would now be of interest to the CID.  He said that he was not sure if the authorities thought he was a supporter of the LTTE.  The Tribunal suggested that, if they had thought that in 2011, it was unlikely that they would just have released him in the way he had claimed.  He said that some CID members would just been happy to get the money.  The Tribunal asked if, since the civil war had finished, there was any reason to believe he was still of interest to the authorities.  He said that the authorities continued to hunt the LTTE.  The Tribunal suggested that it had country information to the effect that only high-profile LTTE members were still being sought.  He said that understood that those suspected of being members and sympathisers were still being sought.  The Tribunal said that the country information was that simply being of Tamil ethnicity, or having been briefly detained years ago, would not necessarily indicate a well-founded fear of persecution.  It suggested that his evidence was that no-one amongst the authorities actually believed him to be involved with the LTTE, although it may be that some officers used it as a pretext to extort money. It put it to him that the evidence did not indicate any continuing CID interest in him. He said the CID would cause him problems

2. The Tribunal put it to him that the country information available to it was that Tamil people generally did not have a reason to fear harm in Sri Lanka.  He said that certain Tamil people did, and that the Tribunal should not accept the Sri Lankan government’s statements.  The Tribunal suggested that the country information, from Australian government officials collecting independent information, was that those with reason to be fearful might include high-profile LTTE members, but not so for others.  He said the fact that they had left their families and homeland showed that they were fearful.  The Tribunal suggested that the country information was further to the effect that, should a Tamil person be stopped by police or the CID, they were able confidently to assert their rights.  He said that was not correct.  The Tribunal asked if he had a basis for saying this:  was he basing it on conditions in 2011 or on current information?  He said he did not have anyone in Sri Lanka to inform him on the current situation.

3. The Tribunal said that, although the applicant had not raised this claim, the delegate had considered whether he might face any consequences by reason of leaving Sr Lanka unlawfully.  It asked if he wished to tell the Tribunal anything about that subject.  He said he did not know anything about that.

4. The Tribunal asked if there was anything further the applicant wished it to consider.  He said that the CID would try to extort him again, and that he was vulnerable as a transport driver, who would be imputed to be an LTTE supporter.

   Assessment of claims and evidence, and findings:

5. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

6. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

7. The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

   The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

8. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

9. The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:

   In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]

   [1] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf

10. However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]

    [2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.

11. The Tribunal has considered the applicant’s claims as made in his statutory declaration and in his oral evidence to the Tribunal.  It accepts that, generally, his oral evidence was consistent with the narrative contained in the statutory declaration and is prepared to accept that, in or about May 2011, he was stopped and detained by members of the CID, who held him for a period of time not exceeding three days, subjected him to ill-treatment and extorted a sum of money from him.  This is consistent with the finding of the delegate and which, despite harbouring some doubts arising from the applicant’s failure to submit corroborative material which should have been available to him, the Tribunal does not propose to disturb.

12. The applicant’s evidence does not support his claims that the CID maintained a continuing interest in him.  In paragraph 19 of his statutory declaration, he claimed

    I knew I had to flee Sri Lanka as the CID had not only detained, beaten and extorted me, but they also had all my contact details.

    However, on his own account, the CID failed to make any personal contact with him at all over the following year.  He claims that the CID made four fruitless visits to his home, without any apparent consequences for his wife.  He does not mention any demand or other message for his wife to pass on to him.  The CID also apparently failed to visit his workplace, speak to his employer, wait for him at the fish market or in the vicinity of his [customers], or intercept him in his truck at any point along a route that would have been well known to them.  When asked about the CID visiting his wife after he left Australia, he told the Tribunal that he did not have direct knowledge of this and had ‘guessed’ that this had occurred.

13. The Tribunal has had regard to the following country information on Sri Lanka relevant to the applicant’s claims.

    Tamils

14. The Department of Foreign Affairs and Trade’s latest country information report on Sri Lanka[3] reports the following on Tamils:

    [3] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Sri Lanka’ (23 December 2021) at pp 18-20.

    3.4 According to the most recent census (2012), Tamils are the second largest ethnic group in Sri Lanka (15.3 per cent of the population). Tamil political parties are active, with the largest coalition of parties operating under the umbrella of the Tamil National Alliance (TNA). In the 2020 parliamentary elections, the TNA won 10 seats (of a total 225) during the landslide victory of President Rajapaksa’s Sri Lanka People's Freedom Alliance (SLPFA). There are two Tamil parties in the Government’s ruling SLPFA coalition: the Tamil Makkal Viduthalai Pulikal (TMVP) (formerly known as the Karuna group), and the Eelam People's Democratic Party (EPDP), which have a combined total of three seats in the Sri Lankan Parliament. There is one Tamil cabinet minister as of November 2021: Minister for Fisheries, Douglas Devananda of the EPDP. This represents a decline in political influence for Tamils from the previous Sirisena Government.

    3.5 Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs, though other sources suggest this is because many Tamils speak neither Sinhala nor English. Even the Tamil-dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil-speaking police officers and military personnel in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities. In April 2021, Sri Lanka Police announced plans to recruit 2,000 Tamil speakers for the north and east, given that very few of the mostly Sinhalese officers (with around 700 police officers working in the Northern Province and 1,100 in the Eastern Province) speak fluent Tamil. All police basic training is reportedly conducted in Sinhala limiting accessibility to most Tamils.

    3.6 DFAT assesses there is no official discrimination on the basis of ethnicity in public sector employment. Rather, Tamils’ under-representation is largely the result of language constraints and disrupted education because of the war.

    3.7 DFAT is aware that some Sinhalese from the south have resettled in the north and east with government assistance in the post-war period. Local sources in the north expressed concern about the construction of Buddhist statues and temples in non-Buddhist populated areas. DFAT is unable to verify claims that Sinhalese settlers in the north and east have received preferential treatment to establish businesses.

    Monitoring, harassment, arrest and detention

    3.8 Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested or detained by security forces during the war. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner (see Liberation Tigers of Tamil Eelam).

    3.9 Members of the Tamil community and NGOs report that authorities continue to monitor public gatherings and protests 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 (see Civil society organisations and government critics and Media).

    3.10 Communities in the north and east report that monitoring is undertaken by military 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. In the east, local informants within the community (including neighbours and business owners) reportedly undertake monitoring on behalf of the authorities. Intelligence agencies also monitor links to foreign groups, including some in the Tamil diaspora (see Liberation Tigers of Tamil Eelam).

    3.11 LTTE cemeteries in the north and east were destroyed by government forces during and after the war. Some have subsequently been restored. It is illegal to commemorate the birthday of LTTE leader Prabhakaran (26 November), or Maaveerar Naal (‘Great Heroes’ Day’ in Tamil, 27 November), although some Tamils are known to defy this ban. The public display of LTTE symbols, including the LTTE flag and images of Prabhakaran, is also banned.

    3.12 Tamils have been arrested in 2021 under the Prevention of Terrorism Act (PTA) for commemoration of the war (see Prevention of Terrorism Act). In May 2021, on the eve of commemoration of the end of the civil war in Mullaithivu district, the location at which various estimates suggest up to 40,000 civilians died in the closing phase of the war, authorities placed the district under strict COVID-19 quarantine isolation. According to local sources, Tamils who tried to commemorate the day were harassed or arrested by police. For example, 10 Tamils including two women were detained from 19 May 2021 until at least late July for holding a socially-distanced candle-lit vigil on a beach in Batticaloa, Eastern Province. On 19 May 2021, the Government of Sri Lanka, including President Rajapaksa, celebrated the same occasion as War Heroes Day.

    3.13 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.

15. The Tribunal has also considered a ‘Situational Update’ on the 2022 economic and political crisis in Sri Lanka, issued by the Department of Home Affairs on 17 August 2022[4].  It reports that:

    In August 2022, the government lifted the proscription on several Tamil diaspora organisations.  On 1 August 2022, the government published an Extraordinary Gazette lifting a ban on six Tamil diaspora organisations:  Global Tamil Forum (GTF), the Canadian Tamil Congress, the Australian Tamil Congress (ATC), the Tamil Eelam People’s Federation, the Tamil Youth Organisation, and the World Tamil Co-ordinating Committee.  The government also lifted a ban on 316 individuals, including GTF spokesperson, Suren Surendiran.  No reason was given for the lifting of the ban; some sources have speculated that it may be an attempt to appease the international community ahead of Sri Lanka’s participation in the United Nations Universal Periodic Review, or that the need for foreign currency income from diaspora groups may be a contributing factor.

    [4] Australian Department of Home Affairs, ‘Situational Update – Sri Lanka:  Economic and Political Crisis 2022’ (17 August 2022) at pp 7-8

16. Taking the country information into account, while the Tribunal considers it likely that the applicant’s Tamil ethnicity, and his occupation as a truck driver, may have provided a pretext for his detention and extortion in mid-2011, it considers the events to be an opportunistic criminal act by rogue elements of the CID likely calculating that they could operate with relative impunity against Tamils in the aftermath of the civil war.  At the hearing, the applicant told the Tribunal that he was assaulted with a stick in the course of his interrogation, which is not mentioned in his previous evidence, and which the Tribunal finds is not supported by any medical records.  The Tribunal does not accept that the CID elements maintained any interest in the applicant following these events because there is no evidence that any rational or systematic attempt was made to locate him.  The applicant admitted at the hearing that he had received no direct communication of attempts to locate him after he left Sri Lanka, having ‘guessed’ that such attempts would be made.

17. While the Tribunal accepts that Tamils were targeted for ill-treatment in the course of, and following, the civil war, amounting to persecution, it is not satisfied on the applicant’s evidence that this is a proper characterisation of his claims. Aside from this incident, and the claimed repeat visits to his house, there are no other instances cited which could be described as behaviour targeted at him by reason of his ethnicity, or of his membership of the particular social group of Tamil transport workers.  The Tribunal, however, accepts that it is possible that his ethnicity and occupation were relevant to his being identified for extortion.

18. Having regard to the country information and the applicant’s evidence, the Tribunal is satisfied that the applicant does not have a political profile and is at low risk of being subjected to surveillance, harassment, physical violence or official discrimination by reason of his Tamil ethnicity should he return to Sri Lanka now or in the reasonably foreseeable future.

    Liberation Tigers of Tamil Eelam (LTTE)

19. The Department of Foreign Affairs and Trade’s latest country information report on Sri Lanka[5] reports the following on the LTTE:

    [5] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Sri Lanka’ (23 December 2021) at pp 24-28.

    3.39 At its peak in 2004, the LTTE had an armed force of approximately 18,000 combatants. The LTTE was proscribed as a terrorist organisation by a number of countries, including Australia. It was supported by foreign funding, primarily from the Tamil diaspora, and both voluntary and forced recruitment of Tamils. Funding from the Tamil diaspora was sometimes attained through means of intimidation and coercion, including threats against local family members and kidnapping for ransom. Within Tamil Eelam, the LTTE imposed its authority in a brutal fashion, reportedly murdering Tamil rivals and critics.

    3.40 Towards the end of the war, in 2009, government security forces arrested and detained a large number of LTTE members. Most were sent to government-run rehabilitation centres. A smaller number were prosecuted through Sri Lanka’s court system. Security forces also questioned or monitored many civilians for possible LTTE activity, and for civil resistance or anti-government sentiment. Although not officially mandated, in many areas the military took a visible and active role in civilian life. The previous Sirisena Government publicly committed to reducing military involvement in civilian activities, but observers have expressed concern that this has reversed and the military’s role is growing again.

    3.41 While the LTTE was comprehensively defeated, Sri Lankan authorities remain concerned over its potential re-emergence, and to separatist tendencies in general. 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.

    3.42 Former LTTE members face no legal barriers to participating in public life, including politics. In the August 2015 parliamentary elections, the TNA did not allow ex-LTTE members to run on their ticket, but ex-combatants established the Crusaders for Democracy party and ran for election. While the party did not win any seats, its participation demonstrated the relative openness of the electoral process. The party did not contest the 2020 parliamentary elections.

    3.43 The LTTE has not carried out any attacks since 2009; however, individuals linked to the LTTE have been involved in what are alleged to be thwarted attacks. DFAT assesses that the LTTE no longer exists as an organised force inside Sri Lanka, and any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans. Local sources told DFAT that the Tamil community had abandoned militancy and was committed to addressing its grievances through political means.

    3.44 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. The Sri Lankan Government may not accept that the LTTE is finished, arresting several Tamils in 2021 under the Prevention of Terrorism Act (PTA) for alleged LTTE-supportive behaviour (see Prevention of Terrorism Act). In July 2021, a Tamil man was deported from Qatar to Sri Lanka at the request of Counter-Terrorism Investigation Department (CTID) for allegedly promoting the LTTE. In its May 2021 decision on the refugee status of Tamil activists in the UK, the UK Upper Tribunal found that the present Government of Sri Lanka was possessed of a ‘determination to prevent any form of resurgent separatism’.

    High-profile former LTTE members

    3.47 ‘High-profile’ former LTTE members are individuals who held senior positions in the LTTE’s military wing and civilian administration. The LTTE’s former leadership face the highest risk of monitoring, arrest, detention or prosecution, regardless of whether they performed a combat or civilian role during the war. Although most of the LTTE’s leadership died during the war, a number surrendered or were captured and sent to rehabilitation centres or prosecuted/detained. Some former leaders may have left Sri Lanka before, during or after the war (see Former LTTE members living outside Sri Lanka). Others considered ‘high-profile’ include individuals suspected of terrorist or serious criminal offences during the war, or of providing weapons or explosives to the LTTE. Other former leaders, such as Karuna Amman (previously a leader of the TMVP, now a member of the Sri Lankan Freedom Party (SLFP), part of the President’s ruling coalition), defected and are allied with the Government.

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

    Low-profile former LTTE members

    3.49 ‘Low-profile’ former LTTE members include former combatants, those employed in administrative or other roles, and those who may have provided a high level of non-military support to the LTTE during the war. DFAT assesses that, although the great majority of low-profile former LTTE members have been released following their rehabilitation, any low-profile former LTTE members who came to the attention of the Sri Lankan authorities now, particularly if suspected of having a combat function during the war, would likely be detained and may be sent for rehabilitation. Following their release from rehabilitation, a low-profile former LTTE member might be monitored but would generally not be prosecuted.

    Monitoring of former LTTE members

    3.50 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. 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. Testimonies provided to ITJP show that such harassment can include frequent visits by police, visits to family members, threats and seizure of mobile devices.

    3.51 Local sources also claimed the authorities – usually undercover police officers or intelligence agents – sometimes used more subtle methods, for example inviting individuals to tea in public places and asking questions about their activities. Such questioning did not involve violence. Telephone calls were also common. Some sources claimed questioning was sometimes indirect, and involved questioning the neighbours of suspected former LTTE members. Sources told DFAT that monitoring of former LTTE members was less extensive in the Eastern Province, insofar as many there had defected during the latter years of the war and aligned with the Government as part of the Karuna Group/TMVP (see Security situation in the north and east).

    3.52 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.

    Former LTTE members living outside Sri Lanka

    3.53 At least one million Sri Lankan Tamils live outside Sri Lanka, mostly in Canada, Europe (with large communities in the UK and France), Australia and India. Members of the Sri Lankan Tamil diaspora may be citizens or legal residents of those countries, or dual nationals. Some members of the Tamil diaspora return to Sri Lanka to visit family members, for holidays and for business. Remittances from the Tamil diaspora provide an important source of income for family and community members in Sri Lanka.

    3.54 Some members of the Tamil diaspora played a central role during the war, as a source of funding, weapons and other material support for the LTTE, and as political advocates for an independent Tamil state. Some Tamil diaspora groups continue to hold public demonstrations in their countries of residence for an independent Tamil state. High-profile leaders of pro-LTTE diaspora groups, particularly diaspora groups banned under Sri Lankan law, may come to the attention of Sri Lankan authorities because of their participation in such demonstrations. The Sri Lankan Government continues to assess that elements of the Tamil diaspora remain committed to a separate Tamil state. The UK Upper Tribunal in its May 2021 ruling on Tamils engaged in activities in the UK found that a range of political activities such as ‘attending meetings and demonstrations, holding flags or banners displaying the LTTE emblem, attendance at commemorative events, meaningful fundraising, any presence on social media, signing petitions’ may be perceived by the Government of Sri Lanka as threatening and it may trigger official harassment upon return.

    3.55 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. The Australian Tamil Congress and the Tamil Youth Organisation are not proscribed in Australia, while the LTTE remains a proscribed organisation in Australia.

    3.56 Approximately 95,000 Sri Lankan Tamils live as refugees in Tamil Nadu, India. (see Returnees from Tamil Nadu).

    3.57 DFAT assesses Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their security risk profile. DFAT assesses that following Tamils would be of particular interest to the authorities: those who hold leadership positions in Tamil diaspora groups, particularly groups deemed by the Sri Lankan Government to hold radical views; those who were formerly part of the LTTE, particularly in – but not necessarily limited to – high-profile roles; those who are suspected of raising funds for the LTTE during the war; and those who actively advocate for Tamil statehood. Those Tamils living abroad with links to the LTTE are unlikely to return to Sri Lanka voluntarily.

    Family members of LTTE

    3.58 The Sri Lankan Government acknowledges that former LTTE members and their families may continue to face discrimination both within their communities and from government officials. DFAT cannot verify claims that people have been arrested and detained because of their family connections with former LTTE members, but understands that close relatives of high-profile former LTTE members who are wanted by Sri Lankan authorities may be subject to monitoring. The ITJP, based on interviews with Tamils who have fled the country and are resident overseas, states that family members of former or suspected former LTTE cadres have been subject to harassment and detention.

    Societal discrimination

    3.59 Most former LTTE members released from rehabilitation have been accepted back into their communities in the north and east, despite some suspicion that they may be pressured to act as informants for Sri Lankan authorities. There is an acknowledgement within the Tamil community that many people were forced to participate in LTTE activities against their will. DFAT assesses that low-profile former LTTE members face a low to moderate risk of societal discrimination. Societal discrimination against former LTTE members is also related to caste, as the majority of former LTTE members are lower caste. Former LTTE members can readily access government services.

    3.60 Local sources in the north characterised former LTTE members as the most vulnerable and neglected segment of the Tamil population. Former LTTE members face ongoing challenges reintegrating fully into society. Sources told DFAT that unemployment among this cohort, particularly the women, is high. Many, even those who received vocational education as part of the post-war rehabilitation process, lack the skills to find and hold meaningful employment, and some have reportedly resorted to criminal activities. Reluctance by employers to hire known former LTTE members, for fear of inviting monitoring by the authorities, is also reported as a factor. In-country sources said that the lack of economic options experienced by former LTTE members meant that some had become paid informers for the authorities. Anecdotal evidence indicates that mental illness linked to the war is prevalent among former LTTE members. Those with disabilities sustained during the war receive minimal state support, if any at all.

    3.61 Local sources report that female former LTTE members face additional hardships, including the risk of sexual harassment and difficulties finding marriage partners owing to their LTTE past. Women who were forcibly recruited by the LTTE are more likely to be accepted back into their communities than those who joined voluntarily.

    3.62 DFAT assesses that members of the LTTE suspected of serious human rights violations against other Tamils face a moderate risk of societal discrimination. This includes those believed to be responsible for forced recruitment, particularly of children, or those suspected of torture or other mistreatment of Tamil civilians.

1. The applicant has not claimed to have held any membership of, or professed sympathy for, the LTTE.  The conduct of his claimed abductors does not support an inference that they held any serious suspicion that he had been supporting LTTE operations and is notable that he does not claim to have been subjected to search or interrogation when he was driving between [locations] from 2005 (when he started with [Employer 1]) and 2009 (when the civil war ended).  Rather, the conduct of the CID officers tends to support the conclusion that his detention and extortion was criminal and opportunistic in nature.  Having had regard to the country information, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution by reason of any imputed membership of, or sympathy for, the LTTE.

   State protection

2. The Department of Foreign Affairs and Trade’s latest country information report on Sri Lanka[6] reports the following on state protection:

   5.1 Sri Lanka has no laws or government policies that hinder access to state protection on the basis of religion or ethnicity. All citizens have access to avenues of redress through the police, judiciary and the HRCSL. In practice, these avenues may be limited by linguistic barriers and by a lack of resources. Some Tamils in the north and east lack confidence in police and security officers and may therefore be less likely to use these avenues to seek redress.

   Police

   5.2 Sri Lanka Police is responsible for enforcing criminal law and maintaining general law and order in the country. It operates under the purview of the Ministry of Law and Order. It has a notional strength of around 85,000 members, and maintains an additional 8,100-member paramilitary Special Task Force. Like the military, most members of the Sri Lanka Police, including in Tamil-populated areas, are Sinhalese. In a historic first for Sri Lanka, in October 2021, three female Senior Superintendents of Police were promoted to the rank of Acting Deputy Inspector General as part of a series of reforms to encourage greater female advancements in the police force.

   5.3 Language remains a significant barrier to effective policing, particularly in the north and east. Police recruitment is national and officers rotate throughout the country during their careers. Most police officers are Sinhalese and only around 20 per cent of police officers in the Northern Province speak Tamil. There is an ongoing effort to recruit more Tamil-speaking police officers.

   5.4 The Assistance to and Protection of Victims of Crime and Witnesses Act (2015) established the National Authority for Protection of Victims of Crime and Witnesses, and a Victims of Crime and Witnesses Assistance and Protection Division within the police. Domestic and international civil society groups have raised concerns about the Act with respect to the appointment process for the National Authority, and the lack of independence of the Division from the police hierarchy, which could lead to conflicts of interest in cases of victim and witness intimidation by police.

   5.5 CID officers (for example, Nishantha Silva and Shani Abeysekara) who had investigated crimes involving the military, police or the Rajapaksa family have been harassed or forced to flee the country. Their investigations have been severely criticised as politically motivated victimisation by the PCOI, which itself is criticised by observers as a politically motivated institution designed to protect the present government.

   [6] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Sri Lanka’ (23 December 2021) at pp 44-

3. The Department of Home Affairs’ 2022 Situational Update on Sri Lanka reports:

   Police have been affected by the economic crisis.  Police have been required to maintain order at fuel queues, impacting on their ability to conduct other forms of policing.  Reports indicate that crime, including gender-based violence and crimes against children, is increasing.  At the same time, government services, such as domestic violence shelter, have limited capacity to respond.

   Security forces have largely shown restraint in their efforts to control protests and keep order, although there are reports of incidents of violence.  Police have used tear gas, water cannons and rubber bullets against protestors.  There are reports that the military did not carry out orders given by then-President Gotabaya Rajapaksa to crack down on violence in May 2022.  In April 2022, police shot and killed one man and injured 14 others during protests over the distribution of fuel in Rambukkana. In June 2022, troops fired live rounds during a clash between civilians and soldiers after a pump ran out of petrol.  Four civilians and three soldiers were injured in the incident in which ‘a group of 20 to 30 people pelted stones and damaged an army truck.  On 9 July 2022, security forces opened fire on protestors attempting to enter the Presidential residence;  no one was killed.[7]

   [7] Australian Department of Home Affairs, ‘Situational Update – Sri Lanka:  Economic and Political Crisis 2022’ (17 August 2022) at pp 9-10

4. It seems clear from the country information that the quality of state protection can be variable, and some Tamils in the north and east of Sri Lanka lack confidence in the police force.  There are also security and protection challenges arising from the political and economic crisis.  However, the Tribunal having found that the applicant’s claims are founded on a single opportunistic abuse of power, and that he does not have a well-founded fear of harm by reason of his Tamil ethnicity, occupation as a transport worker, or imputed membership of or sympathy with the LTTE, the Tribunal cannot be satisfied that there is any well-founded reason not to avail himself of the protection of the state should he have such a need if he were to return to Sri Lanka in the reasonably foreseeable future.

5. Accordingly, while the Tribunal accepts that, in 2011, the CID officers involved in the ill-treatment  of the applicant may have been perceived by the applicant and themselves to have a degree of impunity, the Tribunal cannot be satisfied on the available country information that such a situation would pertain should the applicant return to Sri Lanka.

6. Aspects of this head of claim are considered further below in relation to complementary protection.

   Internal relocation

7. The Department of Foreign Affairs and Trade’s latest country information report on Sri Lanka[8] reports the following on internal relocation:

   5.13 The Constitution provides for freedom of movement for all Sri Lankan citizens, and no official restrictions apply to internal relocation. Access to government services through the local village level office (grama niladhari office) is available to Sri Lankans who relocate; a person intending to relocate to another district only has to register himself/herself with the grama niladhari office and in the house-holders list, and obtain a police clearance.

   5.14 In practice, relocation can be difficult. An absence of family connections or a lack of financial resources can limit internal relocation options. An absence of language skills can act as an additional barrier to internal relocation for those Sri Lankans for whom Sinhala is not their first language, as it may limit access to education and employment in some part of the country. Continued military occupation of private land, difficulties establishing title to land, and uncleared land mines or unexploded ordnance also complicate internal relocation, particularly in the north.

   5.15 Sri Lankan security forces maintain effective control throughout Sri Lanka and individuals are unlikely to be able to relocate internally with anonymity. In particular, the Sri Lankan military, intelligence and police continue to maintain a high level of awareness of returned IDPs to the north and east. The Government has reduced the level of monitoring, but some individuals have reported that their movements continue to be observed.

   5.16 Sri Lankan authorities retain comprehensive countrywide ‘stop’ and ‘watch’ lists of those suspected of involvement in terrorist or serious criminal offences (see Liberation Tigers of Tamil Eelam (LTTE)). Individuals on either list will not be able to avoid adverse attention from security forces. However, DFAT assesses that individuals seeking to relocate internally to minimise monitoring or harassment by local-level officials for petty issues can safely do so.

   [8] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Sri Lanka’ (23 December 2021) at p 44.

8. The Tribunal is satisfied that it is most unlikely that the applicant would be suspected of involvement in terrorist or serious criminal offences.  On the basis of the country information, the Tribunal is satisfied that, should the applicant wish to relocate, it would be safe to do so.  It is also satisfied that, although factors exist that pose practical difficulties to relocation, those difficulties are not such as to make relocation impracticable.  The Tribunal observed at the hearing that the applicant has good English language skills, which are likely to assist in relocation should he wish to pursue that option for any reason.

   Treatment of returnees and conditions for returnees

9. The Department of Foreign Affairs and Trade’s latest country information report on Sri Lanka[9] reports the following on treatment of returnees and conditions for returnees:

   [9] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Sri Lanka’ (23 December 2021) at pp 47-50.

   Exit and Entry Procedures

   5.17 Unsuccessful asylum seekers, both those subject to removal or departing voluntarily, are returned to Sri Lanka either using commercial or charter flights. In some cases, they may be accompanied by security escorts. On arrival in Colombo, returnees will be presented to Sri Lankan Immigration where they will be interviewed by the Chief Immigration Officer. Depending on the circumstances of their departure from Sri Lanka and their personal history, they may be interviewed by other agencies including CID, Sri Lankan State Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI). These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Those who have departed illegally will be referred to CID at the airport and charged accordingly. Once charged they are taken to the courts at Negombo where they are bailed and released.

   5.18 DFAT is not aware of returnees in 2021 being detained for matters other than illegal departure (such as, for former membership of the LTTE). However, due to COVID-19, returnees have been returned to Sri Lanka in smaller numbers overall than in previous years. According to the IOM, in 2021 up to September, there had been 107 returnees, 19 of these from Australia. Local sources also report that Tamils overseas are much less likely to return voluntarily to Sri Lanka under the current Government.

   5.19 The IOM meets Australian-assisted voluntary returnees (i.e. not deportees) after immigration clearance at the airport and provides some cash and onward transportation assistance, along with legal assistance provided by the Sri Lankan Legal Aid Commission for those charged with illegal departure. Prior to departure from Australia, Australian Border Force provides removed returnees with cash to assist their return.

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

   Offences under the Immigrants and Emigrants Act

   5.21 The Immigrants and Emigrants Act (1948) (the I&E Act) governs exit from and entry to Sri Lanka. Returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the I&E Act. Sections 34 and 35 (a) of the I&E Act make it an offence, respectively, to depart Sri Lanka other than via an approved port of departure, such as a seaport or airport, and/or without a valid passport. Returnees who departed Sri Lanka legally are not required to face a court, as no offence under the I&E Act applies. Sri Lanka has a mature people smuggling industry. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine, though DFAT is unaware of a prison sentence being given for illegal departure by itself. Facilitators or organisers of people smuggling ventures, including captains and their crew, are charged with more serious offences and typically refused bail.

   5.22 Those charged are required to appear in court in the location where the matter was first heard, reportedly Negombo Courts, near the airport, which involves legal and transport costs. While the frequency of court appearances depends on the magistrate, DFAT understands that most individuals charged under the I&E Act appear in court every 3-6 months, regardless of their plea, for bail hearings. In addition to their own court hearings, those charged may be summonsed as witnesses in cases against the facilitators or organisers of people smuggling ventures. The cases of those charged with illegal departure may take years to resolve, requiring on-going court appearances (and illegal departees have no reasonable prospect of a defence). It is unclear to DFAT why such cases take so long. One source suggested that cases are taken forward in court only when all members of a people smuggling venture have been located; while another local source suggested it was simply due to the workings of the Sri Lankan justice system. For many returnees, this means they are subject to the slow processes of the Sri Lankan legal system; some returnees told DFAT that it was difficult and stressful having to return periodically to Colombo for a further hearing in a case where they were uncertain of the outcome.

   5.23 While those convicted of the offence of illegal departure may theoretically face a custodial sentence, in practice, local sources suggest, a fine is always imposed and typically this fine is LKR 50,000 - 200,000 (AUD350-1400). Sources suggest those who are unable to pay the fine are permitted to pay in instalments but, if still unable, may be imprisoned for 14 days.

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

   5.25 The minimum age of criminal responsibility in Sri Lanka is 12 years. Under Sri Lankan law, anybody over the age of 12 at the time of their alleged offence is treated as an adult. Children over the age of 12 can therefore be charged with breaking the I&E Act, so long as they were 12 or older at the time of the alleged offence. No charges are imposed against children under 12 years of age or those persons who were younger than 12 at the time of the alleged offence.

   5.26 DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure.

   Conditions for Returnees

   5.27 Between 2010-11 and 2018-19, 3,716 Sri Lankan nationals returned from the Australian community or were removed from Australian onshore immigration detention centres to their country of origin or a third country. Between 2002 and September 2021, the IOM has facilitated the return of 876 Sri Lankans from Australia. Many others returned from the US, Canada, the UK and other European countries. Most returnees are Tamil. Although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin and they have existing family links, or because of the relatively lower cost of living compared to the south.

   5.28 Refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. Most returnees have incurred significant expenses or debt to undertake their outward journey. Some voluntary returnees receive reintegration assistance in the form of transport and livelihood support upon return to Sri Lanka from the Government, UN agencies and NGOs, but this requires a returnee to meet strict eligibility guidelines and is minimal. Failed asylum seekers receive limited reintegration assistance. Many returnees have difficulty finding suitable employment and reliable housing on return. Those who have skills that are in high demand in the labour market are best placed to find well-paid employment. The IOM provides eligible returnees with livelihood assistance and makes regular visits to monitor the welfare of returnees.

   5.29 Multiple local sources said that some returnees, especially those in the north and east with suspected LTTE links, have been the subject of monitoring by the authorities, involving visits to returnees’ homes and telephone calls by the CID. DFAT understands that most returnees, including failed asylum seekers, are not actively monitored on an ongoing or long-term basis. DFAT is unable to verify whether monitoring, where it occurs, is specific to former LTTE cadres. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had no protection concerns and had not experienced harassment by the authorities, nor received monitoring visits, but DFAT cannot determine if this is the case for all such returnees.

   5.30 Bureaucratic inefficiencies present a significant challenge to reintegration for returnees. Refugee returnees, particularly those who returned without UNHCR or IOM facilitation, can experience delays in obtaining necessary identification documents and proof of citizenship. Lack of documentation inhibits access to social welfare schemes and the ability to open bank accounts, find employment or enrol in educational institutions. Limited job availability in the north and east further contributes to difficulties in securing employment and housing. DFAT assesses that reintegration issues are not due to failure to obtain asylum, but rather due to the employment and accommodation difficulties returnees may face. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they were able to reintegrate into their communities and find employment. DFAT understands that returnees may face financial difficulties reintegrating into their communities, including due to sale of their belongings to fund irregular ventures overseas, but do not experience societal discrimination for seeking asylum elsewhere.

   5.31 Some refugees and failed asylum seekers reported being pressured upon return to their communities, chiefly for being beneficiaries of financial reintegration assistance. Others experienced resentment upon return because they spent family funds on what proved to be a futile attempt at irregular migration. Overall, DFAT understands that societal discrimination is not a major concern for returnees, including failed asylum seekers. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had not experienced significant societal discrimination following their return.

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