1805893 (Refugee)

1805893 (Refugee) [2023] AATA 1034 (16 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Clare Hughes
CASE NUMBER:  1805893
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Justin Meyer
DATE:16 January 2023
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 16 January 2023 at 2:43pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Tamil ethnicity – imputed political opinion – anti-regime – supportive or sympathetic towards the Liberation Tigers of Tamil Eelam (LTTE) – adverse ASIO security assessment – particular social group – Tamil with actual or imputed LTTE links – vulnerability – mental health – lengthy immigration detention – activist and hunger striker while in detention – media interest – departed country illegally – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
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 22 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 visa on 17 August 2015. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant was a refugee as defined by s. 5H(1) and thus not a person in respect of whom Australia has protection obligations as outlined in s. 36(2)(a) of the Act. He was also not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Sri Lanka, there was a real risk he would suffer significant harm as defined in s. 36(2A) of the Act thus he was not a person in respect of whom Australia has protection obligations as outlined in s. 36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 9 November 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.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
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.
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.
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) presented in relation to the review. The representative attended the Tribunal hearing.
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.
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
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.
Mental health
Having noted the applicant’s claims of mental trauma over years, The Tribunal utilised the Tribunal’s guidelines on vulnerable persons and created an open, reassuring and supportive environment in order to establish a relationship of confidence and trust between the member and the applicant and facilitated the full disclosure of sensitive and personal information.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J of the Act in Sri Lanka and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Identity
The applicant's identity is established as a [age]-year-old male, as evidenced by a Sri Lankan birth certificate. Thus, there is evidence before the Department and the Tribunal confirming identity and nationality.
Claims
The applicant has the following migration history:
26/10/2009                 Applicant attended an Entry Interview at Christmas Island IDC
12/12/2009                 Applicant lodged a Refugee Status Assessment (RSA) Application
08/04/2010                 RSA Interview conducted at Christmas Island IDC.
17/12/2009                 RSA positive decision. Applicant found to be owed protection
04/08/2015                 s.46A Application Bar reversed. Application allowed
28/09/2015                 Safe Haven Enterprise Visa (SHEV) Application lodged
08/02/2018                 SHEV Interview conducted in Melbourne, Victoria
The applicant's date of birth is [date]. He is a Tamil Hindu from [Town 1], Batticaloa, Eastern Province, Sri Lanka. The Applicant resided in the Batticaloa area from birth until he departed Sri Lanka in September 2009.
He departed from Sri Lanka for Australia in 2009 via a boat operated by people smugglers, which arrived at [Australian location].
The Applicant received an adverse security assessment issued by the Australian Government. The Applicant was held in detention from 22/10/2009 until 24/07/2014. At this time the Applicant was released upon being deemed not to be a person of adverse interest to the Australian authorities.
The applicant’s representative, under cover of an email dated 15 September 2022, submitted to the Tribunal, gave a detailed submission together with the applicant’s unsigned statement and a bundle of evidence.
The submission of the representative canvasses the applicant’s detailed immigration history and claims of mistreatment. According to the representative’s submission, the applicant is a Sri Lankan citizen of Tamil ethnicity and Hindu faith. He lived in ‘‘an LTTE-controlled area and was forced to assist the LTTE for a period…as a teacher”. Due to his Tamil ethnicity and alleged association with the LTTE, the representative maintains that his parents were detained in a labour camp. Further, it is claimed that the Sri Lankan Army (“SLA”) subjected the applicant to physical beatings, detention and torture. [In] September 2009, the applicant left Sri Lanka illegally by boat from Valaichemai in Batticaloa.
The applicant’s hardships experienced upon his arrival in Australia [in] October 2009 are canvassed in the representative’s submission, and include his lengthy detention, the adverse security assessment by ASIO in August 2011 and a 2014 data breach.
The representative states that on 22 February 2018, a delegate of the Minister of Immigration, Citizenship and Multicultural Affairs refused the applicant’s SHEV application as he did not meet the definition of a refugee under s 65 Act and “made adverse credibility findings against” the applicant.
A summary of the representative’s submission, in reference to the applicant’s claims appears below and states:
·[The applicant] fears that, if he is returned to Sri Lanka, he will suffer serious harm in the form of arbitrary arrest and detention, disappearance, serious physical harm, interrogation, physical harassment and ill-treatment, torture and/or death at the hands of the Sri Lankan authorities, Sri Lankan ultra- nationalists, other inmates while in remand and/or prison, prison guards and/or other Sinhala locals for the following essential and significant reasons, either cumulatively or separately:
·His ethnicity as an ethnic Tamil; and/or
·His imputed political opinion of being anti-government; and/or
·His imputed political opinion of being pro-LTTE and/or pro Tamil-separatist and of being ideaologically supportive of the LTTE and its use of violence; and/or
·His inclusion in the following particular social groups;
·A Tamil person who is perceived to have information relating to current and past LTTE activity within the Tamil diaspora; and/or
·A Tamil person and member of the Tamil diaspora who is perceived to have information which may assist in, and/or have personal interests in, fermenting the resurgence of the LTTE or post-conflict Tamil separatism; and/or
·A person who is perceived to have been a particularly dangerous former member of the LTTE for the following reasons;
·His origins from former LTTE controlled areas in Battiacola;
·His conscripted volunteer work for the LTTE as a teacher;
·[The applicant] being deemed a security, even to Australia, on account of LTTE activity and an ongoing risk to national security; and
·[The applicant] having been detained in Australia for over five years, with former members of the LTTE; and
·[The applicant] having fled the country illegally at the end of the civil war and never having been rehabilitated; and
·[The applicant] being photographed with other asylum seekers by the media when disembarking the ‘[named]’ vessel [at Australian location], where some occupants of that vessel were specifically denounced by the Sri Lankan government as being LTTE cadres;2 and
·[The applicant] being subjected to media publicity during his prolonged immigration detention; and
·A Tamil who is the victim of past harm at the hands of the Sri Lanka government.
·In regard to his actual and imputed membership of the above particular social groups, we submit as follows, with regard to the test in 5L of the Act and relevant country information:
·First, the groups are identifiable by a characteristic that is shared by each member;
·Second, [the applicant] shares or is imputed by others to share this characteristic with the groups; and
·Thirdly, this characteristic distinguishes the group from society in Sr Lanka.
·[The applicant]’s fear of persecution is genuine and well-founded. This fear is informed by his past experience of harm and detention by the Sri Lankan authorities. His fears are also supported by current country information, summarised in part below.
·[The applicant] cannot be expected to act discreetly or modify his behavior and profile to hide his past including; his prolonged detention in Australia on account of his adverse security assessment to avoid persecution, as such modification:
·would not be reasonable in all of his personal circumstances for s 5J(3); and/or
·would be a modification of a kind not permitted by ss 5J(3)(a), (b) and (c).
·The persecution feared by [the applicant] extends to all areas of Sri Lanka, as the harm he fears is from the state authorities. Accordingly, relocation within Sri Lanka is not possible.
·It is further submitted that [the applicant] is also owed complementary protection pursuant to s 36(2)(aa) of the Act. We submit that there is a real risk that he would suffer significant harm if removed from Australia to Sri Lanka, in the form of arbitrary deprivation of life; torture; cruel or inhuman treatment or punishment; and/or degrading treatment or punishment at the hands of individual members of the Sri Lankan security forces; Sri Lankan ultra-nationalists; other inmates while in remand and/or prison; prison guards and individual police officer; other Sinhala locals.
·Each of the sources of harm we rely on in respect of s 36(2)(a) are intended to be equally applicable for [the applicant]’s claims to meet s 36(2)(aa), in addition to the specific complementary protection claims cited. In this regard we note that these circumstances differ from those referred to by the Full Federal Court in SZSHK.3
·We submit that country information is highly consistent with [the applicant]’s claims and indicates that there is a risk of him suffering the above types of harm now or in the reasonably foreseeable future, or as a necessary and foreseeable consequence of his removal to Sri Lanka, could not be described as being remote, far-fetched or fanciful.
·Accordingly, we submit that based on the country information available and [the applicant]’s evidence, that [the applicant] meets ss 36(2)(a) and 36(2)(aa).

Remoteness of Risk:

The representative further maintains that in assessing if more than a remote chance of persecution exists, “all the relevant refugee nexus risks of harm must be considered cumulatively” [emphasis added] and not just the “individual risks of harm in isolation of the others” [emphasis added]. Consequently, according to the representative, the “totality of the circumstances” are to be considered in establishing if a real chance of persecution exists.
The representative maintains that the applicant’s lengthy period in Australia may result in him attracting negative attention should he return to Sri Lanka. Further, his volunteer teaching during the civil war for the LTTE, the adverse ASIO security assessment, and the 2014 data breach “are all directly relevant to the risk of being imputed to hold adverse political opinions”. That is, by implication the applicant will be found to be pro-LTTE, or a source of information to the Sri Lankan authorities in relation to those who are pro-LTTE. Consequently, the representative submitted that “this raises a significant risk that he would be harmed…” A downgrading of the security assessment does not mitigate the risk to the applicant, according to the representative.
The representative canvasses in their submission that DFAT has noted that Australia regards the LTTE as a terrorist group, and that this may be why the applicant was detained for around 5 years following ASIO’s adverse security assessment. The fact that the applicant does not hold a passport is further noted by the representative.
According to the representative, the applicant’s arrival in Australia, the media coverage of his lengthy period of detention and the 2014 data breach “impute him with an equally damaging imputed anti-government and Tamil separatist opinion.”
Should the applicant be required to return, the representative expresses concern that he will be “monitored” and “faces a real risk of being detained in Sri Lankan on suspicion of being involved in anti-government political activity”.
Accordingly, the representative submits that the evidence, together with the country information, means “that there is a real chance, being a more than remote risk….., individually and collectively, that he would suffer persecution now or in the reasonably foreseeable future, and that”… [the applicant]… satisfies the refugee definition in s 5H(1) of the Act [emphasis added].
Country Information Reports are quoted in the representative’s submission, outlining the political instability in Sri Lanka, the monopoly of power held by the Rajapaksa family (alleged to have committed human rights abuses and cruelty) and the persecution by the state of critics. Extensive submissions relating to the increasing ethnic and secular tension in Sri Lanka have been relied upon by the representative, with particular reference to the “political conflict, economic crisis, and a re-emergence of historic ethnic grievances.” Various DFAT reports have been quoted by the representative to support their claims regarding the declining political instability in Sri Lanka.
A January 2021 United Nations report is also referenced by the representative raising concerns regarding the possibility of “inter-communal violence, with marginalisation of Tamil and Muslim communities identified as possible catalysts.” This report, together with other UN reports, is relied upon by the representative to support the contention that the applicant “will face higher levels of suspicion, significant harm, and persecution” than outlined in the country information.
According to the representative, the DFAT reports support the conclusion that the applicant will face “a high level of attention” because of his perceived association with the LTTE, his brother’s connection to the LTTE and the adverse ASIO security finding.
DFAT reports are quoted by the representative in reference to the monitoring of Tamils returning to Sri Lanka based their security profile risk, and the reduction of LTTE freedoms by the government.
The representative is of the view that the applicant would be considered “a high profile former LTTE member”. DFAT reports are quoted by the representative detailing the prevalence of deaths in custody, the COVID infections rate and torture of prisoners in Sri Lanka.
It is the submission of the representative that the Tribunal should regard DFAT’s lack of information on the persecution of returnees with “heavy scepticism”, given the hostile treatment of Tamils since November 2019 by the Rajakpaska regime. Human Rights Watch reports are quoted by the representative to also support this claim regarding the fear amongst minority groups in Sri Lanka under the Rajapaksa regime.
Further, the representative submits that the Prevention of Terrorism Act (PTA) is used to carry out abuses by the Sri Lankan authorities against people with the applicant’s profile and maintains that their contention regarding such abuses is strongly supported by the country information, Amnesty International and the United States Department of State.

In summary, the representative maintains that the applicant, based on his circumstances and profile, if returned to his country, “face[s] a real chance of serious harm from the Sri Lankan authorities on political grounds (either actual or imputed) and on the basis of his inclusion in relevant particular social groups.”
The current economic crisis and COVID pandemic will impact the applicant’s ability to live, access medical care and relocate within the Sri Lanka, according to the representative. The representative also references the political, social and economic situation in Sri Lanka as factors that will impact his ability to enter and live safely in the country. Various reports, including one from Human Rights Watch and one from the United Nations (both from 2022) are quoted to support this contention by the representative.
Further, the representative raises concerns that the applicant, due to his profile, faces a risk of suffering serious harm or death, as a result of the prevalence of people with his profile, being jailed. There is also the high risk of infection should he be imprisoned.
A relevant part of the representative’s submission in relation to this contention is extracted below:
The Department of Prisons reported 168 deaths of prisoners in custody in 2020, down from 183 in 2019, but up substantially from 50 in 2017. The HRCSL, in its landmark study of prisons in 2020, found examples of ‘violence inflicted by prisoners and prison officers which ultimately caused death’. The US Department of State has assessed in the past that most deaths in custody are due to natural causes; however, 16 prisoners were reported to have been killed in 2020 and over 100 injured in multiple incidents in several prisons. According to the US Department of State 2020 Human Rights Report, on 29 November 2020, guards at the Mahara prison in Gampaha District opened fire on prisoners, who were attempting to escape during a riot sparked by panic over a COVID-19 outbreak. Eleven prisoners were killed and over 100 injured. Human rights activists noted Mahara prison was severely overcrowded, holding more than 2,000 inmates, despite its official capacity of 1,000, and said nearly half of the prisoners were COVID-19 positive. Police announced an investigation into the incident, but no public disciplinary action was taken nor arrests made in connection with the shooting. Consequently, there is an increasing sense of a lack of accountability with regard to deaths in custody in Sri Lanka.
…
Detention and Prison
In general, prison conditions in Sri Lanka do not meet international standards, including due to old infrastructure, overcrowding, and a shortage of adequate health and sanitary facilities. The HRCSL in its study of prisons in 2020 found that the ‘treatment and detention conditions of prisoners fall far below the threshold of basic living standards’. The US Department of State reported in 2018 that only some of the larger prisons had hospitals, and that prisoners requiring medical care in smaller prisons were typically transferred to the nearest local hospital. Some facilities reportedly do not segregate juveniles and adults, or remand and convicted detainees. In many prisons, inmates reportedly slept on concrete floors, and prisons often lacked natural light or sufficient ventilation.
Overcrowding in Sri Lankan prisons is a major issue. According to official statistics, in 2020, the number of prisoners (approximately 90,000 prisoners on remand and 19,900 convicted detainees) exceeded prison capacity by nearly 64 per cent. Over half of the prison population is estimated to be awaiting trial. Remand detention typically lasts years and is considered as part of the final sentence at the discretion of judges. According to the HRCSL, the overcrowding of prisons is also impacted by the large number of convicted prisoners imprisoned due to the inability to pay fines and the non-payment of debt and maintenance payments.
The applicant’s statement
An undated statement by the applicant was provided to the Tribunal. The applicant states that he left Sri Lanka in 2009 by boat due to the civil war and problems he faced due to his ethnicity (being a Tamil).
The applicant claims that he completed a [qualification] and started teaching in 2003, until 2009. He was employed by [Employer 1]. During this time, the applicant claims that he was approached by the LTTE to teach local and poor youth in an LTTE – controlled area. The applicant says that the delegate may have misunderstood him by forming the view that he was teaching LTTE cadres, but that he was always teaching children.
Although the applicant was forced to teach the poor children and was not paid, he says he regarded it as humanitarian work. The applicant says he was also forced to partake in celebrations and to paint Tamil martyr tombs.
The applicant continued to undertake this forced work for two years, from 2003, for about five days a month.
If the applicant had refused to undertake the volunteer work for the LTTE, he claims that he would have been tortured, beaten or transferred to a remote area. The applicant feared for his life.
The applicant travelled to the LTTE controlled area by bus. He went through several army checkpoints where he would have to show his ID, had his bag searched and was searched for weapons.
Around 2008 – 2009, the SLA took control of Batticaloa, and the Karuna Group and TMVP started to work with the SLA. There were increased tensions between the SLA and the LTTE according to the applicant. There was also an increased presence of the TMVP and Karuna Group at the checkpoints.
One afternoon, whilst returning from work, the bus was stopped at the checkpoint. The applicant was separated from the group and taken into a room by two SLA officers where he was beaten and taken to a SLA camp, but he was released a few hours later.
This mistreatment by the SLA filled the applicant with a lot of fear. The applicant stresses in his statement that this only happened on one occasion. And that it was a miscommunication that led the delegate to believe that this had happened multiple times.
On his arrival in Australia, the applicant claims that he was very traumatised, scared and found it very difficult to communicate properly. Due to the years in detention, the applicant claims this impacted his mental health.
After being released by the SLA, the applicant returned home to his family who warned him that he was not safe. The applicant feared the SLA, the TMVP and Karuna Group as they suspected that he had LTTE affiliations.
In his statement, the applicant recounts that around 2001 – 2002, the LTTE had forcibly taken his father to perform labour for the LTTE and was tortured for about three months. He was taken to hospital with malaria. Then the applicant’s mother was arrested and asked to do the work in place of the applicant’s father. Both his parents were tortured by the LTTE, as they wanted to ensure that one child per family was fighting for the LTTE. The applicant claims that this happened to many, if not every family in Batticaloa.
Due to all of the compounding fears, the applicant’s family believed that he was not safe and should leave Sri Lanka. [In] September 2009, the applicant left for Australia by boat after paying quite a bit of money to people smugglers.
The applicant claims that he was being targeted because he is Tamil and because the SLA knew about his volunteer work with the children in the TLTE area. Thus, they suspected the applicant of supporting the LTTE. Upon arrival at [Australian location], the applicant spoke with his mother who advised that the CID had come to his family home looking for him.
The applicant claims that since arriving in Australia, his fears have not ceased, even though the events happened 13 years ago.
The applicant fled Sri Lanka illegally. Upon his arrival in Australia, he was photographed disembarking the boat at [Australian location]. This photograph was broadcast in the media.
The applicant was then subject to five years in detention because of an adverse ASIO assessment. According to the applicant, there was a lot of media publicity published in the Sri Lankan media about other Tamil men in the applicant’s predicament. The applicant believes that they were all presumed to be LTTE “terrorists”.
As the applicant participated in hunger strikes whilst in detention at MITA and complaints were made to the UNHCR and the AHRC, publicity was created around his situation.
In 2014, whilst in detention, there was a data breach. Consequently, the applicant’s personal information was accidentally made public on the Department’s website.
The applicant claims that during these years of detention and extreme stress, he was interviewed by the Department. The applicant regrets any inconsistencies or errors provided in his statements. He claims that he was very stressed, not in his right mind, constantly fearful of being detained forever or returned as a suspected terrorist and tortured in Sri Lanka.
The applicant claims that his mental health has been impacted by the refugee status determination. The applicant refers in his statement to his prolonged detention, the ASIO investigation, the 2010 positive RSA decision followed by the SHEV refusal as matters that have adversely impacted his mental health. He does not believe that his mental health can withstand being returned to Sri Lanka, an airport interrogation, further detention or tracking by the authorities.
The applicant fears that the Sri Lankan authorities would be aware of his profile, and the allegations by the Australian government that he was involved in the LTTE in a substantial way.
If they are not already aware of these allegations, the applicant claims that they will become aware of them. The applicant believes that his profile will be raised through questioning of the applicant and other Tamils who received adverse ASIO assessments and were detained for long periods in Australia. Also, due to the publicity, the Sri Lankan authorities will be aware of the applicant’s situation in Australia.
The applicant also says he is afraid because of the continued abductions of Tamils in Sri Lanka. Further, since the recent crisis in Sri Lanka, that applicant claims that the PTA has been used to persecute, arrest and harm Tamils, especially those suspected of being a risk to the country’s security. The applicant fears that he will be considered such a person, will be arrested, abducted or simply “disappear”.
The applicant says he continues to have flashbacks about the torture and trauma he suffered in Sri Lanka. He fears for his life if he returns to Sri Lanka. He fears the government and being interrogated at the airport.
The applicant says that the Sinhalese government will not protect him because he is Tamil and because of all the claims about him being a security risks with links to the LTTE during the war.
As the applicant left Sri Lanka illegally, he cannot avoid being criminally investigated and charged upon his return to Sri Lanka. As the applicant has been living in Australia for so long, he fears that the government will presume that he is an LTTE member who fled during the civil war. The media attention and ASIO investigation exacerbate his fear, according to the applicant.
The applicant claims that the humanitarian deed of being forced to teach poor children, under the instruction of the LTTE, during the civil war, will cause him troubles for the rest of his life.
Bundle of evidence:
In support of the review, the representative supplied the Tribunal with a bundle of reports that were unreferenced and unindexed. The documents included the following:
·     Various Amnesty International reports;
·     A November 2014 report titled, ‘Department of Immigration and Border Protection: Own motion investigation report’;
·     2010 report titled, ‘Fifth Sri Lankan refugee deemed security threat’,
·     2010 report from The Australian titled, ‘Refugee was Tiger ‘agent’;
·     2013 report from The Conversation titled, ‘Refugees and hunger strikes; the need to appeal ASIO assessments’;
·     2013 ABC report titled, ‘Second refugee rejected by ASIO attempts suicide at Melbourne detention centre’;
·     2015 report from newmatilda.com titled, ‘Ongoing Release Of Refugees Poses Awkward Questions for ASIO’;
·     2017 report from The Australian titled, ‘ASIO branded asylum-seekers as security risks’
Evaluation of the applicant’s evidence in the hearing
The applicant is a single man. He is a qualified teacher. He has his father, mother, and [number] brothers in Sri Lanka. Another brother is in [Country 1], studying. He comes from the Eastern province. His father was a [Occupation 1].
I asked when the applicant had his first substantive contact with the Tamil Tigers. The applicant said his first posting teacher was in an LTTE area. He was working in a government school. I asked if the family home was in an LTTE area. He said he lived in a town and travelled to the school. It was in a previously LTTE-controlled area.
He said he did normal teaching was a primary school teacher. He was posted to a Sri Lankan government school in an LTTE area. He said the LTTE ran like a government. He worked in the school where he was posted. He had to work for three years without leave. I asked if he was required by the LTTE to educate their students outside of the school. The applicant said that was indeed occurred. His school principal said that he needed educate the children who have no literacy using the same curriculum.
When the principal asked him to do this the applicant said he needed a good record at the school for three years in order to “get his increment”.
He told the principal that he could not take leave, but he would do it when he had the time. He knew that if he refused to do the work the LTTE would take revenge and move him to a tough area. He agreed to run the out of hours classes once or twice per month. This arrangement lasted for one to two years, he estimated. This was in 2003.
The ‘split’ he referred to took place in 2004-2005. I asked how the LTTE split affected him. The applicant said that Karuna (Colonel Karuna Amman) was a powerful leader in Batticaloa. He has been supported by the Sri Lankan government to the present day. In 2004 Karuna was working with the army. The applicant said there was no war then.
The applicant said he went to work he had to cross at least three Sri Lankan army checkpoints. He would register his name and reason for travel and his planned return date when he entered an LTTE area.
The SLA performed search and screening. I asked if he encountered trouble at the checkpoint. The applicant said he was mistreated at the checkpoint was unable to make himself fully understood and he was beaten and kicked. He said he was beaten by gun. This incident he could not forget. He received counselling and has told the story many times. Even years after this incident recalling it causes trauma.
I asked the applicant why he was treated this way. He said he was taken away from a bus and asked for ID. He was body searched. A man wearing a balaclava nodded and then they tortured him. They spoke Sinhalese . But he did not know if the paramilitary group were Sinhalese or Tamil. He did not know why they picked him out. When forced to work as a teacher for the poor people, there was a split in the LTTE. He may have been seen by members of the Karuna group doing this.
I asked if his brothers experienced similar. He said no.
His injuries were to his chest where he was hit, and his lips bled. He only received home remedy – there was no treatment from a hospital. He is still having mental issues as a result. He went home and his mother told him to live at his friend’s home. People visited his mother and told her to hand them in to the army camp. She then told him not to come home.
His work was important to him. He could not take leave for long. He took a different route I order to sign in at the school. A friends’ friend told him he could come to Australia. He went to see that person. It took around two weeks to depart the country. His mother paid for this, possibly 6 to 7 Lakhs.
It did not matter where he might go in Sri Lanka, there was Sinhalese domination. It was not worth relocating he said.
I asked whether he had done anything else for the LTTE than the literacy teaching work. The applicant said there may have been some community work done by volunteers, which he had to participate in as well. He said he had no political sympathies or activities, as he was a holder of a government job.
Other members of his family had not encountered violence or persecution. His parents however had been held in an LTTE camp in 2002. Before the LTTE split there was a rule that at least one family member needed to fight. There were [number] sons. The were all in the town studying, so they took the applicant’s father and made him work in a regional school in a remote forest area. He eventually contracted malaria and was released.
No member of the family has been made to do rehabilitation.
The applicant departed by boat and had a national ID card, which was later damaged. He did not tell authorities where he was going. Authorities visited his home in Sri Lanka when he was [at Australian location]. His mother told them that she did not know where he was.
He has spent many years in detention and has no interest in politics. He went on a hunger strike. There are photographs of him arriving in [Australian location] and the hunger strike. He believes this was in Sri Lankan media. His family told him this – they saw him on TV.
He said he lived in fear of returning and that the SLA will not protect him. Killings were still happening. He believed that the data breach enabled monitoring of him.
Because he was in detention the information leaked. He went on a hunger strike.
He could not imagine what would happen to him if he returned to Sri Lanka. Bodies were found in a pond there.
90.He currently works as a [Occupation 2] for five to six days a week. He has received counselling from [an organisation]. He is fearful and anxious about going back, worsened by his uncertain visa status. He has no chance of being employed in the education sector in Sri Lanka- he was dismissed.
The Tribunal discussed the most recent DFAT country report on Sri Lanka[1] with the applicant:
[1] DFAT Country Information Report, Sri Lanka 23 December 2021
Liberation Tigers of Tamil Eelam (LTTE)
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’. Rehabilitation
3.45
Since the end of the war, successive Sri Lankan Governments have managed a large-scale ‘rehabilitation’ process for former LTTE members. The aim of the 24 rehabilitation centres was to process LTTE members who surrendered in the final stages of the war and to assist them to adjust to a life after war, with a focus on vocational training. According to Sri Lankan Government statistics from March 2019, 12,191 former LTTE members (including 2,265 women) had completed rehabilitation. Some centres previously used to rehabilitate former LTTE members have since been redeployed for the purposes of rehabilitating drug addicts and possibly Muslim detainees under the PTA (see Rehabilitation of non-LTTE members).
3.46
Local sources have previously estimated that between 4,000 and 6,000 former LTTE members are undisclosed and non-rehabilitated, the majority of whom may now be living overseas. Military sources have previously estimated the number of undisclosed and non-rehabilitated former LTTE numbers within Sri Lanka as being low, including approximately 280 individuals in Jaffna (Northern Province). 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

The applicant said he might be on a government database and there was no fair process for convincing them of his innocence.
I noted that people who leave Sri Lanka unlawfully can be asked questions on return. He might be taken aside and put in another room. Sometimes people go up to individuals in public places and ask them questions. I asked if people would be convinced if he denied involvement in violence and LTTE. He said it would be very hard due to the lack of fair process and information they had collected.
I noted from DFAT’s report that:
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.[2]
[2] DFAT Country Information Report, Sri Lanka 23 December 2021
The applicant said he had no comfort from this. This was not how it was on the ground in Sri Lanka. Many people disappear, whereabouts unknown. Much is not documented.
The applicant was not aware of people he knew who were rehabilitated. But he said that people died in suspicious circumstances. He feared discrimination as a Tamil. He had no assurance of his life. Recently, a Sinhalese MP said that Sri Lanka is a Sinhalese Buddhist country and those who were not should be deported.
He only speaks Tamil and English.
He added that if he went back he would be constantly reminded of past experiences.
Overall, the Tribunal found the applicant’s written and oral evidence to be consistent. He gave a clear account of his upbringing and education and reasons for leaving Sri Lanka. The applicant provided supportive consistent written evidence of his claims.

100. He has not claimed to have been an LTTE member, but his claims are as a forced helper to the LTTE and someone who could or would be perceived as a Tamil Tiger or imputed in this way. I find he assisted Tamil Tigers and organised activities in education and other community activities.
101. I find further that:
·He is from Eastern Province and is in his mid-[age range]. He is unmarried. He is of Tamil ethnicity.
·He is from a teaching family and was employed in a government school. He was driven into providing education classes for LTTE supporting families
·I find he was severely harmed leaving a bus by a factional group within the Tamil Tigers or the SLA, or both.
·I find that he was very fearful and departed the country at the earliest opportunity.
·I find his father was forced into detention by the LTTE.

102. This evidence had been consistently given and was unvarnished.
103. He departed illegally by boat. He has been activist and hunger striker while in detention and this attracted media interest. Although a finely balanced matter I find that it is more likely he has been seen in media as a hunger striker and boat arrival in [Australian location].
104. He has been held for a long period as a security risk by the Australian authorities.
105. If returned there is a risk that he is viewed as a Tamil activist or sympathiser at least partly because he has been so classified for a long period in Australia.
106. I accept that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members, supporters and other separatists, including ‘stop’ and ‘watch’ electronic databases. He might well be seen as a former supporter and a current believer in Tamil separatism. There is a real chance that information about him has been or would be collected. He may be of interest to Sri Lankan security services, including for suspected separatist activities.
107. He may well be one of the low-profile former LTTE members who comes to the attention of the Sri Lankan authorities and may be suspected of having had a combat function during the war, and thus may well be detained and may be sent for rehabilitation.
108. The Tribunal considers the applicant to be a Tamil with actual or imputed LTTE links, per the DFAT report at [3.50] above. It finds that there is a risk that he will experience police monitoring and harassment. Even lower -profile individuals such as the applicant are monitored to guard against the LTTE’s re-emergence. Harassment for the applicant might include frequent visits by police, visits to family members, threats and seizure of mobile devices.
109. The applicant may well face discrimination both within his community and from government officials upon return. He may be subject to monitoring. Added to this is that the applicant has not been through rehabilitation, which could raise more suspicions about him.
110. He potentially would be in the most vulnerable and neglected segment of the Tamil population because of his former LTTE link.
111. From this country information I conclude that as an LTTE-imputed person he may face ongoing challenges reintegrating fully into society. This might add to his vulnerability.
112. There is other supporting country information to help draw these conclusions.
113. For returnees DFAT reports that police undertake an investigative process to confirm a person’s identity which might include interviewing the returnee, contacting the police in their home area, contacting neighbours and family, and checking criminal and court records. [3]
[3] DFAT Country Information Report, Sri Lanka 23 December 2021 at [5.17]
114. The UK Home Office reports that since 2009, the Sri Lankan government’s security policy has become increasingly sophisticated and is based on intelligence and the comprehensive surveillance of its Tamil citizens, as well as the monitoring of the Tamil diaspora. Much of this information was gathered in the period after the conflict during which LTTE members and supporters were detained in camps and interrogated.[4]
[4] UK Home Office, Country Policy and Information Note, Sri Lanka: Tamil Separatism June 2017
115. Considering these matters cumulatively, and also taking into account the current country analysis provided in the recent Upper Tribunal (Immigration and Asylum Chamber) case of KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 00130 (IAC) in particular paragraphs [324] to [358], there is a risk that is more than remote. The applicant may well have an imputed political opinion which is anti-regime or supportive and sympathetic of LTTE, particularly given that the applicant departed Sri Lanka for the reasons he stated during a time of civil unrest in Sri Lanka.
116. Considering the applicant’s profile as a Tamil previously resident in an LTTE -active area he may be visible to them because of media about him and a data security breach, the Tribunal considers he may be detained and questioned when returned to Colombo or even to his town, for his Tamil ethnicity and his imputed political opinion.
117. A brief period of detention may not always amount to serious harm, but his profile may result in him being subjected to a longer period of detention and questioning than a Tamil who may merely have resided in an area formerly under the control of the LTTE. He has left Sri Lanka by illegal means, and this could be established and lead to questioning and detention.
118. During that detention and questioning, there is a real chance the applicant will be subjected to serious harm. The UK Home Office reported a reduction in torture complaints in 2017, while highlighting new cases of Tamil victims where police had resorted to violence and excessive force to extract confessions.
119. There is a real chance the CID would arrest and interrogate the applicant and question him about his past and present circumstances. The Tribunal, having considered carefully and in detail the country information and the applicant’s profile, finds that there is a real chance the CID will attempt to extract information and details or gain intelligence details about why he departed Sri Lanka, and his knowledge of other activities after the end of the civil war.
120. In light of this information, the Tribunal considers there to be a real chance the applicant will be subjected to mistreatment constituting serious harm during that process of detention and questioning. It follows that there is a real chance the applicant will face serious harm amounting to persecution if returned to Sri Lanka, now or in the reasonably foreseeable future, for the essential and significant reasons of his ethnicity and his political opinion actual or imputed as the Tribunal discussed above.
121. It may have been considered in earlier times that the applicant’s actions since he left Sri Lanka, may not have attracted attention to him or be of adverse interest to the Sri Lankan authorities but since the applicant’s departure from Sri Lanka, there has been a worsening economic, political and security situation that would impact directly on the applicant if he was returned to Sri Lanka. Considered cumulatively, the Tribunal cannot discount as remote that they would result in the applicant being imputed with a political opinion which is anti-regime or supportive of the LTTE. The applicant’s mental health has deteriorated over the years in Australia, and the Tribunal concludes that his ability to cope with future harm would exacerbate his risk.
122. The heightened tensions and economic crisis in Sri Lanka in the last year potentially worsen the risk for the applicant. I note that one of the UNHCR’s most recent reports on Sri Lanka (2022) states:
Reports indicate that at least 70 people have been arrested under the PTA for
sharing social media posts commemorating victims of the war that included LTTE
images or Tamil nationalist iconography. On 18 May, police arrested 10 people near
Batticaloa under the PTA for organizing a memorial event; they were finally released
on bail on 8 December. A journalist, Murugupillai Kokulathasan, has been detained
for 15 months since November 2020 in relation to photos of the LTTE leader
appearing on his social media. The Government shared with OHCHR a directive
issued by the Inspector General of Police dated 23 October 2021 providing guidance
on restricting the use of the PTA and exercising greater discretion in evaluating
cases such as, possession of pictures.
In March 2021, new “de-radicalization” regulations were issued that permit arbitrary
administrative detention of individuals for up to two years without any legal
proceedings for the purposes of ‘rehabilitation’ in relation to violent extremism. The
Special Rapporteur on the promotion and protection of human rights and
fundamental freedoms while countering terrorism and other experts have warned that
the regulations may jeopardize the rights and liberties of persons who may be
detained arbitrarily, especially religious and ethnic minorities, and may curtail political
dissent with no effective due process guarantees. Civil society organisations
obtained a stay order on their implementation while the Supreme Court considers a
fundamental rights petition against the regulations. [5]
[5] Human Rights Council, Forty-ninth session, 28 February–1 April 2022, Agenda item 2 Annual report of the United Nations

123. As a result, the Tribunal finds that because of being removed from Australia to Sri Lanka, there is a real chance that the applicant will suffer serious harm by reason of him being an ethnic Tamil imputed to be or connected with the LTTE. This is the essential and significant reason for harm and it is regarding an identifiable particular social group. This finding is in regard to the legislatively relevant harm now or in the reasonably foreseeable future.
124. As well, as the perpetrators of the harm feared by the applicant are the Sri Lankan authorities or persons assisting, the Tribunal finds that state protection will not be available to the applicant and that the real chance of persecution relates to all areas of Sri Lanka. 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).
125. The Tribunal is therefore satisfied that the applicant does satisfy the criterion set out in s. 36(2)(a) of the Act for a protection visa and the applicant is a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations as a refugee.
126. As well, as the perpetrators of the harm feared by the applicant are the Sri Lankan authorities, the Tribunal finds that state protection will not be available to the applicant and that the real chance of persecution relates to all areas of Sri Lanka.
127. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
128. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Justin Meyer
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General,
Promoting reconciliation, accountability and human rights in Sri Lanka, paragraphs 45 and 46

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1805893 (Refugee) [2023] AATA 1034

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[2023] AATA 1034

16 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

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Statutory Construction

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Natural Justice