1805931 (Refugee)

1805931 (Refugee) [2023] AATA 2502 (19 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE:   Mr Joshua Le Vay
CASE NUMBER:        1805931
COUNTRY OF REFERENCE:         Sri Lanka
MEMBER:Andrew McLean Williams
DATE:19 May 2023
PLACE OF DECISION:       Brisbane
DECISION:The Tribunal affirms the decision not to grant the Applicants protection visas.

Statement made on 19 May 2023 at 11:51am

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion – suspected involvement with the Liberation Tigers of Tamil Eelam (LTTE) – Tamil National Alliance campaign worker – particular social group – failed asylum seeker – weapons charges – detention – killing of work colleagues – abductions in white vans – informant for the LTTE – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 35
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423A, 499
Migration Regulations 1994, Schedule 2

CASES

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
DAT17 v MIBP [2018] FCCA 3750
Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151
MIAC v SZQRB (2013) 210 505
SZSMQ v MIBP [2013] FCCA 1768

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

STATEMENT OF DECISION AND REASONS - APPLICATION FOR REVIEW

This is an application for review of a decision made by a Delegate of the Minister for Home Affairs on 16 February 2018, thereby refusing to grant the Applicants protection visas, pursuant to s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The Applicants, who are each citizens of Sri Lanka, had applied for the visas on 15 June 2017. For purposes of this review Sri Lanka is now the receiving country in relation to the Applicants’ protection claims.
The Delegate refused to grant the visas after determining that the first-named Applicant, [named] is not a person to whom Australia owes protection obligations, as outlined in either of s.36(2)(a), or s.36(2)(aa) of the Act; and is not a member of the same family unit as another person to whom Australia already owes protection obligations under either of those provisions, and who already holds a protection visa of the same class as that now being applied for by [the applicant] (s.36(2)(b) & s.36(2)(c)).
Given the findings in relation to the first-named Applicant, the Delegate then determined that the other Applicants, as family members of [the applicant], did not satisfy s.36(2)(b), or s.36(2)(c) of the Act.
The second-named Applicant, [named] made her own protection claims on 15 June 2017. These were also determined, by the same Delegate on 16 February 2018, yet by means of a separate decision, in which the Delegate determined that [the applicant’s wife] was not a person to whom Australia owed protection obligations under either of s.36(2)(a) or s.36(2)(aa) of the Migration Act; such that her other family members were not persons owed obligations under either s.36(2)(b), or s.36(2)(c).
An Application for Review of the Delegate’s decision dated 16 February 2018 was filed in the Tribunal on 6 March 2018 by the first-named Applicant, [the applicant]. A separate Application for Review was not filed by [the applicant’s wife] in relation to her own claims. That fact notwithstanding, [the applicant’s wife] has maintained her individual protection claims, and did seek to raise these before the Tribunal, as part of her husband’s Application for Review; yet in circumstances in which she does not wish to reveal these claims to her husband. On that basis, the claims made by [the applicant’s wife] will also be considered by the Tribunal, and these now appear as Attachment One, subject to an order made by the Tribunal pursuant to s.35(4) of the Administrative Appeals Tribunal Act 1975, expressly prohibiting publication of Attachment One, or disclosure of any of its contents to the first-named Applicant.
The Applicants appeared before the Tribunal on 9 September 2022. The Tribunal hearing was conducted with the assistance of a Tamil interpreter.
The Applicants were represented in relation to this review by their authorised representative, Mr Joshua Le Vay, of Playfair Legal, Sydney. Mr Le Vay also attended the Tribunal hearing on 9 September 2022, and provided written submissions to the Tribunal on behalf his clients, both prior to the Tribunal hearing, and again after the hearing, with leave for these post-hearing submissions having been granted by the Tribunal.

CRITERIA FOR A PROTECTION VISA

The eligibility criteria for a protection visa are as set out in s.36 of the Act, and in Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).
An Applicant for the visa must meet one of the alternative criteria in either of s.36(2)(a), s.36(2)(aa), s.36(2)(b), or s.36(2)(c) of the Act. That is, he or she must be either a person in respect of whom Australia owes protection obligations under the ‘refugee’ criterion in s.36(2)(a); or on ‘complementary protection’ grounds as specified in s.36(2)(aa); or, because the Applicant is a member of the same family unit as such a person, and that other family member already holds a protection visa in the same class (s.36(2)(b), & s.36(2)(c)).
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 qualifies as a ‘refugee’.
A person qualifies as 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’, they 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 may also qualify as a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, they are now either unable or unwilling to return to that country: s.5H(1)(b).
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 receiving country. Additional requirements relating to a well-founded fear of persecution, and circumstances in which a person will be taken not to have a well-founded fear of persecution are then set out in ss. 5J(2)-(6), and in ss. 5K - 5LA of the Act, which are extracted, in Annexure A to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless still 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 and returned 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 36(2B) of the Act, which are also extracted, in Annexure A to this decision.

Mandatory considerations

In accordance with Ministerial Direction No.84, the Tribunal is required to take account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that these have been assessed as relevant to the matters under consideration.

CONSIDERATION OF Claims and evidence

At the outset, the Tribunal records that it is satisfied with the identity of each of the Applicants as citizens of Sri Lanka, and is satisfied that the Applicants do not have a right to reside in any third country, being any country other than either Sri Lanka or Australia.
The central issue is whether the Applicants qualify as persons to whom Australia owes protection obligations, under either of s.36(2)(a) or s.36(2)(aa) of the Act; or whether any of the Applicants are otherwise members of the same family unit of another person to whom Australia owes protection obligations, and who is already the holder of a protection visa in the same class or category as that now being applied for by the Applicant(s).
The first-named Applicant, [named], has raised a number of grounds in his claims for protection.
Unlike the situation prior to the hearing before Howard J in [citation deleted] wherein the fact of any separate protection claims was a matter that was expressly disavowed by her,[1] [the applicant’s wife] also now raises her own claims for protection. The protection claims of both the first-named Applicant and the second-named Applicant will be separately considered by the Tribunal, and on the basis that in each instance the other-named Applicants then stand in the position as family members of the respective primary claimant.
[1] [Citation deleted].

Factual Background:

The Applicants are Hindu Tamils, from North-Eastern Sri Lanka.
The Applicants first arrived in Australia as unauthorised maritime entrants on a vessel code-named “[name]”. [This vessel] had been interdicted in Australian territorial waters by the Royal Australian Navy [in] May 2012, and those aboard were landed at Christmas Island [later in] May 2012.
[The applicant’s] claims for protection arise against the backdrop of the following:
·[May] 2012: arrived at Christmas Island.
·25 May 2012: an entry interview conducted.
·17 June 2012: [the applicant] lodged an application for a protection visa (‘PV’). No separate claim lodged at this stage by [the applicant’s wife].
·27 July 2012: PV refused.
·8 October 2012: the (former) Refugee Review Tribunal (RRT) affirmed the decision to refuse all of the Applicants PVs, on the basis of a conclusion that the claims by the first-named Applicant did not give rise to any protection obligations for Australia.
·[December] 2012: Applicants lodged an application for judicial review of the RRT decision, in the Federal Circuit Court of Australia.
·February 2014: Various identifying details for the Applicants, including the fact of their being held in Immigration Detention are inadvertently published, on a Department of Home Affairs Website (‘the website disclosure’)
·[June] 2014: the Federal Circuit Court (per Howard J) dismissed the Applicants’ application for judicial review (reported as [citation deleted]).
·13 January 2015: International Treaties Obligation Assessment (‘ITOA’) commences, in reference to the website disclosure.
·13 April 2016: s.46(a) and s.48(a) bar lifted, and the Applicants are invited to re-apply for protection status, (a decision made in response to the website disclosure). ITOA assessment process discontinued.
·15 June 2017: the Applicants each apply for Safe Haven Enterprise Visas (‘SHEVs’). The second-named Applicant, [named] now also raises her own protection claims.
·16 February 2018: In separate decisions, the same Delegate refuses both the first-named and the second-named Applicants’ and their childrens’ SHEV applications, having determined that each of them were not persons to whom Australia owed protection obligations under any of s.36(2)(a), s.36(2)(aa), s.36(2)(b), or s.36(2)(c).
·6 March 2018: [The applicant] commences an Application for Review before this Tribunal, seeking a review of the Delegate’s refusal decision, dated 16 February 2018.
[The applicant] claims that he qualifies as a refugee under s.36(2)(a) of the Act, and/or that there are now substantial grounds for believing that as a necessary and foreseeable consequence of his being returned to Sri Lanka he will be placed at risk of ‘significant harm’ as defined in s.36(2A) of the Act, such that he qualifies for protection under the ‘complimentary protection’ criteria in s.36(2)(aa) of the Act.
Initial Claims:
Initially, by way of a submission dated 17 June 2012, [the applicant] claimed his status as a person now owed protection on the basis of the following:
·In 2006, [the applicant’s] then [age] year-old brother-in-law and his brother-in-law’s friend (each Tamils) found a [weapon] at their school. They went to hand this [weapon] into the police, yet they were instead charged with ‘going armed in public’. They were arrested and imprisoned, for one year.
·[The applicant] had worked for a non-government organisation (NGO), [named] [Agency 1] as [an occupation 1], between 2004 and 2007. In January 2007, a male co-worker at [Agency 1] was shot and killed by members of an armed group whilst on his way home from work. Two weeks later, a female co-worker was similarly shot and killed, by members of an armed group. [The applicant] does not know whether these killings were perpetrated by the same armed group, or not.
·In January 2007, [the applicant’s] other brother-in-law, who had been working as [an occupation] was arrested together with four co-workers, on suspicion of their involvement with the LTTE after they had been detained one evening working late, [working on] a house. They were jailed for approximately one month, before their release.
·[Number] days after the arrest of his brother-in-law, and at about lunch time, a group of six or seven soldiers came and searched [the applicant’s] home. He was taken outside, for questioning. His identity papers were examined. He was taken to a vehicle and paraded in front of a hooded informant inside the vehicle, who was also shown his identity papers. The hooded informant advised the soldiers that [the applicant] was not known by him as associated with the LTTE. After having been appraised in this manner by the hooded informant, [the applicant] was released by the soldiers.
·After the aforementioned incidents in early 2007, [the applicant] became concerned for his own safety. He raised matters with his employer, and the Director of [Agency 1] suggested that he should travel to [Country 1], and seek to register with the UNHCR. [In] January 2007 he travelled to [Country 1] using his Sri Lankan passport, and was granted a one-month visitor visa. He did seek to register with the UNHCR, and was given an appointment slip, this specifying that he should return to the UNHCR office for an interview in November 2007. At the time, his wife [named] (who was still in Sri Lanka) was [pregnant]. Because of concerns regarding her pregnancy, he returned to Sri Lanka, and did not wait for the UNHCR interview. Upon arrival back in Sri Lanka he resumed working for [Agency 1], and thereafter remained in this role, until 2010. He experienced no further problems.
·In 2010, foreign aid funding for [Agency 1] ended, such that there was no prospect of any more paid employment with the [agency]. He and his wife then opened a [product 1] shop. He also became an active volunteer member of a local rural development society. The rural development society operated openly, with government approval.
·In 2011, [the applicant] started to assist a Tamil National Alliance (‘TNA’) candidate, a man named [Candidate A], who was campaigning for a village council election ‘in September 2011’.[2] He had been approached by [Candidate A], who had been a [local official] in his village; and a person who had also previously assisted [the applicant] with some of the [agency] work being conducted by [Agency 1]. [Candidate A] had asked him to assist in his campaign, on the basis that he had good local connections. [The applicant] was not himself a candidate, but he did agree to help [Candidate A], and he did this by making introductions and helping to organise meetings in the 22 villages where he still had contacts from his time working with [Agency 1]. The campaigning started, ‘in August 2011’.[3]
·On [a day in] August 2011,[4] a group of five or six armed men in a white van came to [the applicant’s] home. He was taken away at gun point in the white van, and was warned to stop campaigning for the TNA, and to not disclose this incident to anyone, including the authorities, otherwise the men would return, and he would be killed. [The applicant] assured the men he would stop campaigning, and he was released by them. After this incident [the applicant] never stayed overnight at his own home again, instead staying with friends, and in different locations. He also stopped working on the TNA campaign. Even after [Candidate A] had won the election the next month, he did not seek to participate in any of the campaign celebrations.
·In 2011, an employed position became available for a [position related to his agency work] on the Eastern Provincial Council. [The applicant] had wanted to apply for this job, but he was refused, because of his prior association and campaigning activities for the TNA.
·On [a day in] December 2011, another white van came to [the applicant’s] home, at roughly 10.30pm, or 11.00pm. He was again forcibly removed by two armed men, and threatened: ostensibly because of his reputed continued involvement with the TNA election campaign. He vehemently denied this, and told the men a fabrication, that he had been campaigning for a Sinhalese candidate. He was released by the men.
·Two other local men had gone missing in white vans, before and after the election. At this stage [the applicant] was again concerned for his own safety, so he left for Colombo.
·In January 2012, while he was in Colombo, he was informed by his wife that some armed men had recently come into their [product 1] store demanding that his wife inform upon the whereabouts of her husband. He claims that she told him that she had told the men that he ‘had gone to work in Vanni’, and that she did not know when he would return. On the basis of what his wife had told him, [the applicant] decided it was no longer safe for him in Sri Lanka, so he arranged for a people smuggler to take him to India. He left Sri Lanka for India [in] February 2012.
·Sometime in March 2012, [the applicant’s] wife contacted him in India to say that armed men had come to the family home (on [a day in] March 2012), looking for him. After this incident [the applicant] made arrangements for his wife and children to come to India, as well. The family arrived in India [later in] March 2012 (‘the initial claims’).
[2]   This date was later corrected.
[3]   This date was later corrected.
[4]   This date was later corrected.
On the basis of the initial claims, as summarised immediately above, [the applicant] claimed that his life would be imperilled if he were to be required to return to Sri Lanka, because of the past history of his having been taken away and threatened by men in white vans; because of his imputed political opinions; and because of his Tamil ethnicity.
On 17 June 2012, a Delegate of the Minister refused his initial claims. The Delegate did not accept that [the applicant] had been approached and threatened by men in white vans; and did not believe that his role as a political campaigner was sufficiently substantial enough to draw any adverse attention from the Sri Lankan authorities. In particular, the Delegate was concerned that he could not name persons involved as candidates in the election campaign; and had specified the village council election had been in September 2011, yet country information revealed this to have been on 18 July 2011. In light of these inconsistencies, and because of [the applicant’s] inability to recall information that the Delegate considered ought reasonably to have been able to be recalled by him, in relation to the election, if he were in fact a person who had been heavily engaged in campaigning for a Tamil candidate as now claimed, the Delegate determined that [the applicant] had embellished his claims. As such, the Delegate did not believe him, and found that [the applicant’s] claims did not engage Australia’s protection obligations under either of s.36(2)(a) or s.36(2)(aa) of the Migration Act (‘the initial refusal decision’).

Subsequent Protection Claims:

On 6 August 2012, [the applicant] lodged an application for review of the initial refusal decision, before the (former) Refugee Review Tribunal (‘RRT’).
By this stage [the applicant’s] claims included further grounds, that he would be persecuted, or would be at a real risk of significant harm in Sri Lanka by reason of:
·his imputed political opinion, as a perceived supporter of the Liberation Tigers of Tamil Eelam (the ‘LTTE’); and
·his membership of a particular social group (‘PSG’): comprised by ‘failed asylum seekers, forcibly returned to Sri Lanka’.
A hearing before the RRT was conducted on 3 October 2012, wherein the RRT considered both the initial, and subsequent, protection claims.
In relation to the confusion surrounding the election dates, [the applicant] provided the RRT with an unsigned statutory declaration stating that he had been wrong about the date of the local village elections, and this had been held in July of 2011, and not in September as originally claimed; and that the first white van visit to his home had been on [a day in] June 2011, and not on [the day in] August 2011, as initially claimed; and that he had pleaded with the armed men, in Sinhalese, that he had been campaigning in support of a Sinhalese candidate and not for the Tamil candidate.
On 5 October 2012 the RRT affirmed the prior decision of the Delegate, refusing [the applicant] a protection visa. In particular, the RRT Member noted that he had, by now, provided three different dates for the date of the local village elections; and that it was implausible that a person who was genuinely intimately involved in an election and who, as a consequence of that involvement was threatened, would then forget the date of the election, particularly when this was less than 12 months prior to the date of lodgement of his protection claim. The Member expressed his having formed a positive state of disbelief regarding the claims by [the applicant]: those regarding his having been threatened on two occasions by men in white vans, in consequence of his role assisting to organise meetings for [Candidate A] with local voters.
[In] December 2012, [the applicant] appealed the decision of the RRT to the Federal Circuit Court. [In] June 2014 the Federal Circuit Court dismissed that appeal, thus upholding the RRT decision.
In February 2014, at a time when [the applicant] and his other family members were in immigration detention, a data breach by the Department of Home Affairs resulted in certain identifying particulars relating to [the applicant] and other detained asylum seekers (including his wife [named]) being unintentionally published, on a Department website. This resulted in the commencement of an International Treaties Obligation Assessment (‘ITOA’) of their claims, on 13 January 2015.
[The applicant] and his wife were invited, as part of the ITOA process, to make a further submission regarding their protection claims. A response was received from [the applicant] in which he then made substantially the same claims as those that had already been made by him.
Ultimately, and in consequence of Federal Court proceedings on related matters, the ITOA process was discontinued, and in lieu thereof the s.48(b) bar was lifted, thus allowing [the applicant] to make a fresh application for a protection visa. He did so on 15 June 2017, in the form of a Safe Haven Enterprise Visa (XE 790) (‘SHEV’) application.

Further Protection Claims:

As part of the SHEV application, [the applicant] now further claims the following:

Shortly after the website disclosure, a group of unknown men came to the home and shop of his mother-in-law in Sri Lanka, looking for him. The men claimed to be from the CID. He now fears that the CID knows of his whereabouts, because of the website disclosure.
When [the applicant] was still living in Sri Lanka, he was an informant for the LTTE. He was able to get a job working for the Eastern Provincial Council and, whilst in that role, acted as an informant for the LTTE, particularly informing about the [political campaign] of ‘Pilliyan’. Open source country information reveals that Sivanesathurai Chandrakanthan - a man otherwise known by the nom de guerre ‘Pilliyan’ - is a prominent former child soldier of the Tamil Tigers (LTTE), who in about 2004 had broken away from the LTTE, and had joined with another former Tamil fighter, Karunna Amman to form the Tamil Makkal Viduthalai Pulikal (‘TMVP’), a more moderate and government-aligned Tamil political entity. [The applicant] claims that he had not raised the fact of his having spied on Pilliyan at the time of his first arrival in Australia because other Sri Lankan asylum seekers had advised him that any mention of the LTTE would adversely impact his prospects of obtaining protection in Australia.
Since his arrival in Australia, [the applicant] has been an active member of the Tamil diaspora. He is involved with [Community Group 1] helping Tamil families with interpreting and completing documents. He has explained Tamil persecution to members of the [Community Group 2]. He is also now [social media connected to] [Community Group 2], [details deleted]. [The applicant’s] own [social media] has many [stories] about the human rights situation in Sri Lanka, and in which he celebrates various LTTE heroes. He has also been [actively involved with Community Group 3].

Factual Findings:
Tamil Ethnicity

[The applicant] has consistently claimed to be a citizen of Sri Lanka, of Hindu Tamil ethnicity, born in Trincomalee. The available biometric data for [the applicant] - as well as that for each of his other family members - is supportive of that claim, and the genuineness of their identity documents is now accepted by the Tribunal.

Work for [Agency]

During his oral evidence before the Tribunal on 9 September 2022, [the applicant] claimed that his father had died when he was aged only about [age]. In consequence, he says that his mother was required to take work in [Country 1] as a housemaid, and he was placed into a [hostel school] during her absence overseas. He says that he also had [specified family members]. He claims that [one brother], was badly beaten by the police [details deleted]. [The applicant] says that this brother died from the injuries sustained during the police beating within a few months after that beating; and recalls his brother having died in about 2002. Meanwhile, [another] brother is now living in Australia; and [another sibling] (who is married with [children]) still lives in Sri Lanka, as does his mother, who is elderly.
[The applicant] says that he worked as a [volunteer] while still at school and living in the school hostel. After leaving school, in [year], he took a job as an [occupation 3] with [an] agency until the Asian tsunami, on 26 December 2004. Immediately after the tsunami, he says that the situation in his local area was extremely chaotic in consequence of the devastation, and that it was at around this time that he had commenced to work for [Agency 1]. Initially, he was employed as a volunteer, yet this eventually turned into a paid role, once [Agency 1] had started to receive foreign aid funding. [The applicant] recalls that he remained working with [Agency 1] until 2007.
In either very late 2006, or very early 2007, two co-workers who were working under [the applicant] at [Agency 1] (one male and one female) were each shot and killed (in separate incidents), by armed men from what he terms a ‘paramilitary group supporting the government’. [The applicant] believes that his co-workers were killed because [Agency 1] had been helping to re-settle Tamil people in army-controlled areas. At this stage, he says that he had not personally been threatened, however claims that he was concerned about this and his employers at [Agency 1] had recommended that he travel to [Country 1] and attempt to register with the UNHCR.
[The applicant] says that he did travel to [Country 1], in about late January or perhaps early February 2007, and that he did seek to register with the UNHCR, yet was told at the time that he would need to wait in a refugee camp in [Country 1] for many months for an interview, which was estimated would not occur until about November. Meanwhile, his wife [named] had remained in Sri Lanka with her family, because she was [pregnant]. He says that he decided to return to Sri Lanka, even notwithstanding his having not yet had an interview with the UNHCR, after his mother-in-law had contacted him, expressing concerns about complications in [his wife’s] pregnancy. [The applicant] says that he returned to Sri Lanka to coincide with the time when his first child was born, in [specified month]. Around that time the security situation also appeared to have become more settled, so he resumed work, in his former role with [Agency 1].
[The applicant] next says that he continued working at [Agency 1] in the same capacity as had been the case previously, until about 2010, when the foreign aid funding ran out. At that point he opened a [product 1] shop, with his wife. That shop is still operated by his mother-in-law.
[The applicant] is unable to produce any documentary evidence to substantiate the duration of his time working with [Agency 1], other than for a letter submitted by [Agency 1] at the time of his ITOA assessment, which states that he had worked as [an occupation 1] and as the [Position 1] of [Agency 1] “from June 2010 until December 2010”. Nor is he able to provide any documentation in relation to his having travelled to [Country 1]. Nevertheless, the Tribunal is prepared to accept that [the applicant] did work for [Agency 1], between approximately 2004 and January 2007, and then again from mid-2007 until 2010. The Tribunal also accepts that [the applicant] travelled to [Country 1] in the first half of 2007, with the intention of registering for protection with the UNHCR, yet returned to Sri Lanka, in about [specified month in] 2007, and without having registered with the UNHCR.

Work for the Rural Development Society

[The applicant] also says that he became active as a volunteer in a local Rural Development Society. There is a letter in confirmation of service with [this] Rural Development Society. As such, the Tribunal is prepared to accept the claim.

Harassment for being a member of the LTTE

The Tribunal is prepared to accept that, on one prior occasion in about January of 2007, and about [number] days after the arrest of his brother-in-law and the other [occupation 3s], [the applicant] had, at about lunch time, been escorted outside his home by soldiers, who then paraded him in front of a hooded informant sitting in the rear of an army vehicle; and that the soldiers also showed the informant [the applicant’s] identity documents, and then subsequently the soldiers immediately released him, once their informant had advised that [the applicant] was not a person who was associated with the LTTE. In the Tribunal’s determination, this specific detention incident is insufficient to give rise to any grounds for a well-founded fear of persecution.
Similarly, the Tribunal is prepared to accept that, in about 2002, [the applicant’s] brother may have died in consequence of injuries; that in 2006 one brother-in-law may have been arrested on trumped-up [weapon] charges; and that, in January 2007, another brother-in-law may have been arrested and detained for approximately one month on suspicion of involvement with the LTTE. The Tribunal also accepts that two co-workers at [Agency 1] may have been shot and killed, in either about very late 2006, or very early in 2007, and that these killings had served as motivation for [the applicant’s] decision to travel to [Country 1], in an attempt to register with the UNHCR.
The Tribunal concludes however that these incidents do not give rise to a basis for a fear of persecution that is able to be categorised as well-founded, particularly in the circumstance wherein subsequent to each of these incidents [the applicant] had himself been detained, and assessed by soldiers, for potential LTTE association, yet had been immediately released by the soldiers, after they had determined that they were satisfied that [the applicant] was not associated with the LTTE.

Campaigning for the TNA

In 2011, [the applicant] says that a local Tamil TNA political candidate named [Candidate A] had approached him, requesting assistance.
He told the Tribunal that this approach had arisen because [Candidate A] had been aware of him as a person who had connections in 22 local villages, in consequence of his prior work with [Agency 1]. [The applicant] says that [Candidate A] was also previously known to him as a [local official] from his village, and as a person who had previously assisted [Agency 1] with community outreach work. When [Candidate A] had asked for assistance, he says that he had been more than happy to agree to help [Candidate A]. Although not himself political, [the applicant] expressed to the Tribunal that he still wished to see a Tamil candidate elected at the forthcoming elections.
[The applicant] says that he worked on [Candidate A’s] campaign for about the next two or three months, as a person who could attend local communities with [Candidate A], in order to introduce [Candidate A] to voters. [Candidate A] subsequently won the election, and thereafter remained prominent in local politics for a number of years, until his death. [The applicant] told the Tribunal that [Candidate A] did not die until as recently as 2021.
The TNA is an alliance of Tamil parties consisting of multiple, smaller Tamil political entities. [The applicant] was unable to specify which Tamil political party that [Candidate A] had represented. On prior occasions, when interviewed in relation to his protection claims; in the submission dated 17 June 2012; and when before the RRT, [the applicant] had been unable to recall the date of the elections, and had specified various dates. Now, before the Tribunal, [the applicant] states that, on those prior occasions, he had simply become confused about the dates, and now says that the local elections in which he had assisted [Candidate A] were definitely held in July, 2011.
After listening to his oral evidence, and considering his explanations about the confusion regarding the dates, and looking at open-source information relating to the timing of local village council elections in 2011 in North Eastern Sri Lanka, the Tribunal concludes that the elections in question were held in July 2011; and that [the applicant] did assist a local candidate named [Candidate A] in an election in July 2011; yet that [the applicant] was not ‘significantly involved’ in [Candidate A’s] campaign. The Tribunal concludes that, although willing to assist [Candidate A], [the applicant] did so substantially on the basis of his prior personal familiarity with [Candidate A], rather than because of any strong political convictions. As such, the Tribunal concludes that [the applicant] assisted [Candidate A] in only a very low-level manner - his merely acting as an intermediary – as a person who was able to ‘break the ice’ by introducing [Candidate A] to local voters, particularly women, and hence the essential reason for his inability to instantly recall the date of the election with precision, when asked to do that in conjunction with an assessment of his protection claims, on prior occasions. The Tribunal concludes that political campaigning at this level is insufficient to give rise to a well-founded fear of persecution, particularly in the context of a putative return to Sri Lanka more than a decade after an election campaign that was held in July of 2011.
In relation to his having helped [Candidate A] to campaign for the TNA, [the applicant] further claims that he was consequentially harassed, by men in white vans, on two occasions, in June 2011 (prior to the election), and then again in December 2011 (well after the election). The Tribunal does not accept either of these claims, and does not believe that [the applicant] was harassed by men in white vans on either of these occasions, as now claimed by him. Having assessed his recounting of these claims when before the Tribunal, the Tribunal remains completely unpersuaded that either of the white van incidents, that on either [the day in] June 2011 (corrected from an original claim of [the day in] August 2011), or that [in] December 2011 took place at all; such that these claims are now positively disbelieved by the Tribunal. The Tribunal recognises the existence of Country Information reports from Sri Lanka noting the phenomena of white van abductions, yet the fact of these reports, in and of itself is not enough for the Tribunal to feel any sense of persuasion regarding the truthfulness of [the applicant] specific claims regarding these alleged white van incidents, on [the day in] June 2011 and [in] December 2011.
The Tribunal is also not satisfied that the evidence received from [the applicant’s wife] is corroborative of either white van incident. She recalls only one incident, occurring ‘one day at around lunchtime’, when armed men had come to their home and taken her husband outside.[5] Although accepting the evidence of [the applicant’s wife] in relation to her husband having been taken outside at around lunchtime on the occasion that she does recall, the Tribunal concludes that it relates to the incident in January 2007, when soldiers had taken her husband outside to be viewed by their hooded informant. If there were more than one similar incident, then the Tribunal concludes that [the applicant’s wife] would at least be able to recall there having been more than one incident, even if not then able to be exact about the dates or the circumstances.
[5] Transcript, 9 September 2022, p.48, lines 01, and following.
The Tribunal concludes that these particular 2011 ‘white van’ claims are an embellishment, included as part of an effort to bolster his claims for protection.

Acting as an Informant for the LTTE

[The applicant] did not claim to have acted as an informant for the LTTE on the [campaign] of Pilliyan until as recently as his statement dated 27 November 2017. This was well after making his initial claims for protection.
Section 423A of the Act requires the Tribunal to draw an adverse inference as to the credibility of an applicant’s claim, or evidence, where the claim was not raised before the primary decision was made; unless the Tribunal is satisfied that the applicant has a reasonable explanation for why the claim was not raised, or the evidence not presented, before the primary decision was made.
In relation to the question of his late disclosure, [the applicant] now says that, when he first arrived in Australia in 2012, other Sri Lankan detainees had led him to believe that any disclosure of involvement with the LTTE to Australian authorities would only result in ongoing detention. For present purposes the Tribunal is prepared to accept that explanation as sufficient, to be a ‘reasonable explanation’ for purposes of s.423A, and will therefore proceed to consider the actual substance of the claims.
The spying claims are as follows:
When I was in Sri Lanka working for the [Agency 1], the women who we would assist were past LTTE cadre, our [Position 2] [Ms A] was also a LTTE supporter at the time we were located and working in the army controlled area, so as a NGO we could not say we supported the LTTE.
I was not openly involved with the LTTE however they used me as an informant. When the LTTE had their big split into the Karuna group and LTTE. Karuna then split into two groups, Karuna contested the provincial election and joined the government elections and Pilliyan ran as an independent and contested the eastern provincial Council. [Ms A] was able to get me a job in Pilliyan’s [administration] as the [Position 3] as volunteer from 2009 until 2011, [Ms A] was also appointed in this Council as a [specified role]. Both of us were informants to the LTTE in different capacity. The information we would pass on included their [campaign] activities, inform them of their activities, inside information about [the Council members].
My uncle’s family are all devoted to the LTTE and my uncle passed on my details to the LTTE and suggested to them that I am responsible and able to pass on information.

The Tribunal notes that open-source information reveals that the Sri Lankan military offensive to drive the LTTE out of the Eastern Province had attained that objective by July 2007, with assistance provided by members of the TVMP. The Tribunal notes that the Applicant was in [Country 1] during the early parts of 2007; and has claimed not to have even returned to Sri Lanka until the eve of the birth of his first child, in [specified month] of 2007.
Local authority elections in the Eastern Provence were held on 10 March 2008, and the TVMP were successful in securing positions for candidates in 9 local authorities during those elections. At this stage, the LTTE had already been a spent force since July of the year prior, meaning that there would appear to have been little practical utility in reporting on the [campaign] of Pilliyan to the LTTE in early 2008. The TVMP then ran on a joint ticket with the UPFA – the party of the then Sri Lankan President Mahinda Rajapakse - as part of a coalition in the Eastern Provincial elections, which were held on 10 May 2008. Pilliyan - who had campaigned as part of the TVMP on a platform of “needing to do better things for Tamil people through the political process, rather than by means of armed struggle” was elected in May 2008, and the UPFA coalition secured 20 of the 37 seats on the Provincial Government. Pilliyan was sworn-in as the Chief Minister of the Eastern Province on 16 May 2008. From approximately [month in] 2007 until 2010, [the applicant] has claimed that he was back working for [Agency 1], which has been accepted by the Tribunal. In his spying claims (as excerpted, above), [the applicant] now also claims to have simultaneously worked for Pilliyan, in a volunteer capacity, as a [Position 3], from 2009 until 2011.
Although it is accepted as plausible that [the applicant] may have undertaken some volunteer work for Pilliyan, as a logical adjunct to the work undertaken by him for [Agency 1], the Tribunal assesses the further claims of his also having spied upon Pilliyan on behalf the LTTE as inherently improbable. By this stage Pilliyan was a mainstream Tamil politician, intent on improving the lives of Tamil citizens by working from within the system of democratically-elected representative government. Pilliyan’s expressed aims at this stage are consistent with [the applicant’s] own welfare and development orientation, as revealed from his work history with both [Agency 1] and the Rural Development Society, which were each entities directed at efforts to improve the lives of ordinary citizens in conventional ways; and Pilliyan’s aims at this point were also consistent with [the applicant’s] previous denials of his having been part of the LTTE. Again, the Tribunal notes that his ‘non-LTTE’ status had been appraised and accepted by members of the military by as early as January 2007. In light of these things, it appears to the Tribunal as inherently implausible that [the applicant] would now seek at this stage (ie: from 2009 until 2011) to spy on Pilliyan on behalf of whatever vestigial remnants of the violently militant LTTE may still have existed in the Eastern Province. Again, the Tribunal notes that the LTTE had been assessed as a ‘spent force’ by no later than July, 2007.
The Tribunal does not accept the claims by [the applicant] regarding his spying on Pilliyan on behalf the LTTE, and assesses these as implausible, and as an embellishment raised in an attempt to bolster his claims for protection.
In the Tribunal’s assessment, [the applicant] is unlikely to have an existing separatist profile on any Government of Sri Lanka watchlist. Nor is he likely to be perceived as having taken any ‘active’ role in any Tamil separatist agitation prior to his departure from Sri Lanka, or to have had any associations with the LTTE.

January 2012 visit to the family [product 1] store by CID Officers enquiring about his whereabouts:

[The applicant] claims that in January 2012 when he was already in Colombo, he was advised by his wife that CID Officers had come into their [product 1] store, asking about his whereabouts. He claims that this information caused him to decide he needed to leave Sri Lanka, altogether. He has no direct knowledge of these things and relies on the information given to him by his wife.
During the Tribunal hearing, [the applicant’s wife] was asked about this, and denied that CID officers had come into the [product 1] store on any occasion asking about her husband.[6] In a post-hearing submission dated 23 September 2022, Mr Le Vay submits that [the applicant] has always been consistent in his evidence about the January 2012 [product 1] shop CID visit, and that [the applicant’s wife] was nervous during the Tribunal hearing, and is now simply mistaken in her recollection, having not previously addressed this incident in her written statements made on either 18 September 2014 or 27 November 2017.
[6] Transcript, p. 50, lines 14 – 15.
The Tribunal accepts that it is conceivable that [the applicant’s wife] is now unable to recall this particular incident, and accepts the possibility that police officers did enter her [product 1] store one day in January 2012.
In light of DFAT Country Information regarding a widely-held generally discriminatory stance towards female-headed households in Sri Lanka, the Tribunal considers that it is also plausible that these officers could also conceivably have made some pejorative remark to [the applicant’s wife] regarding the absence of her husband, and that [she] then relayed the fact of that exchange, in a later telephone conversation with her Husband; who then inferred it to mean that the officers were looking for him. Ultimately, the Tribunal is not prepared to accept that this incident affords evidence that Sri Lankan authorities were in fact looking for [the applicant] in January 2012.

Visit to his home by CID Officers [in] March 2012, at a time when he was already in India

[The applicant] has no direct knowledge of these events, and now relies upon what he was subsequently told about the CID visit, by his wife. The details of this event are considered in the separate reasons by the Tribunal pertaining to [the applicant’s wife].
Although the Tribunal now accepts that [the applicant’s wife] received a visit by CID Officers (or at least by plain clothes male persons purporting to be CID officers) on or about [a day in] March 2012, at a time when her husband was residing in India; the Tribunal has determined that this visit was not because [the applicant] was a person of interest to the authorities. The basis for that reasoning are now more fully expressed in the separate reasons for decision referable to [the applicant’s wife]. The fact of [the applicant’s wife] having informed her husband of the fact of this visit - which is a matter now accepted by the Tribunal - is not assessed as objectively sufficient to give rise to a well-founded fear of persecution on the part of [the applicant].

Visits to Mother-in Law’s Home in 2014, from men claiming to be from the CID because of the website disclosure in Australia:

[The applicant] also claims that, sometime after the 2014 website disclosure in Australia, his mother-in-law in Sri Lanka was approached by men from the CID, ostensibly because of the website disclosure. [The applicant] has no direct account to give in relation to this claim, and similarly relies upon the evidence of his [wife].
In a statement dated 27 November 2017, [the applicant’s wife] states that, after the website disclosure in February 2014, some ‘unknown people’ (later described by her during her oral evidence at the hearing before the Tribunal on 9 September 2022 as male plain-clothes police officers from the CID) went to her mother’s shop (connected to her mother’s home) asking about the applicants and their children, and informing that they were ‘from Sri Lankan Immigration’, and that ‘Australian immigration had wanted them to get information’, about the Applicants. [The applicant’s wife] claims that her mother confirmed for the men that the Applicants were in Australia, yet that [her mother] did not hear from them, very often. The statement from [the applicant’s wife] then continues:
[29]…She asked them again who they were, this time they confirmed they were from the CID and they want to know what were the statements that my husband and I gave Australian immigration.
[30]Before they left they said that they will return and asked that she gets more details about the statement we have given. They also took my mother’s phone number before leaving. This information has been given previously to the Department.
[31]After this incident my mother went to the [Agency 2] and told them about this incident and that she was scared. They told my mother to provide the bike number and names, she was not able to provide these details. They advised her if they come back again to get these details.
[31]The CID phoned my mother two days later, she said she did not have any information to give to them. They said they will come back again, they did not.
[33]I fear that if we were made to return to Sri Lanka they will find us and they will be certain that we have sought asylum in Australia.
As is apparent, the account here given by [the applicant’s wife] is a second-hand one, made on the basis of things that are claimed to have taken place in Sri Lanka at a time when [she] was in Australia, yet which were later relayed to her, by her mother. No statement of evidence, or direct testimonial evidence has been provided by the Applicants from the mother of [the applicant’s wife], yet in circumstances in which the Applicants informed the Tribunal that they remain in regular telephone contact with her.
On the available evidence, the Tribunal is not able to assess whether there was a visit to the mother of [the applicant’s wife] in Sri Lanka after the website disclosure in the manner now claimed, or whether any such visit, if it did in fact transpire, was transacted in the manner as now claimed, by the Applicants.
The Tribunal is aware of the importance of adopting a reasonable approach towards evidence in protection visa matters and in particular the note of caution sounded by Foster J. in Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151 at [194], wherein his Honour had said:
“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 be reasonably accepted…”
Similarly, the Tribunal notes that, generally, if the Applicant’s account appears credible, then it ought, unless there are good reasons to the contrary, be given the benefit of the doubt, and be accepted. However, in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1992) at paragraph [204], the UNHCR cautions that:
“….The benefit of doubt should, however, only be given when all available evidence has been obtained and checked and 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…” [emphasis not in the original, yet included here, by the Tribunal].
The Tribunal records that it is not satisfied as to [the applicant’s] general credibility, and considers that he has shown a propensity to embellish his claims. Moreover, evidence that is clearly and logically relevant to an assessment of the key facts in issue – in the form of a direct eyewitness account from [the applicant’s mother-in-law] - has not been provided by the Applicants; such that the Tribunal is unable to move beyond its current state of dissatisfaction regarding these claims. The Tribunal is not required to accept the Applicant uncritically, nor even to have rebutting evidence available to it before it can find that any particular assertion by an Applicant has not been made out. The Tribunal accordingly records that it finds that [the applicant’s] particular claim – regarding visits to the home and shop of the mother of [the applicant’s wife] in Sri Lanka after the inadvertent disclosure of the Applicant’s details on a Departmental website in Australia in 2014 has not, as a matter of evidence, been established to the Tribunal’s reasonable satisfaction. SZSMQ v MIBP [2013] FCCA 1768 at [58] – [60]; and DAT17 v MIBP [2018] FCCA 3750 at [30] - [31].
As such the Tribunal makes no express findings in relation to this claim, other than to indicate that the Tribunal remains in a state wherein it is unable to be affirmatively satisfied regarding the factual basis of it.
Moreover, the extent of any dissemination of data in consequence of the website disclosure is speculative.[7] The details that are known to have been disclosed consisted only of name, date of birth, nationality, gender, details about location of immigration detention in Australia, and whether there were other family members also being held in detention. The disclosed details did not extend to including information regarding the substance of any protection claims. Although Sri Lankan authorities may now be aware of the fact of the Applicants being in Australia, and of their having arrived in Australia by irregular maritime means; and may have deduced the fact of their having made asylum claims, there is no basis to infer that the Sri Lankan authorities are aware of the actual substance of any of [the applicant’s] asylum claims.
[7] Department of Home Affairs Country of Origin Information Services Section (‘COISS’) Standard ‘Q & A’ Report, 28 April 2023, Analysis regarding question 2: Are there any reports that the SLG became aware of the data breach, or has referred to it as a basis for adverse attention?
Nor is there any information available to the Tribunal to suggest that failed asylum seekers returning to Sri Lanka from countries such as Australia are being differently treated upon their arrival in Sri Lanka, solely on the basis of their having spent time in immigration detention whilst in Australia.[8]
[8] Department of Home Affairs Country of Origin Information Services Section (COISS) Standard ‘Q & A’ Report, 28 April 2023, Analysis regarding question 1: Are there any reports to suggest that the Sri Lankan Government (SLG) has taken an adverse interest in persons detained in Australia, on
Even if the Tribunal were to accept that [the applicant’s mother-in-law] was visited by officers from the Sri Lankan CID after the website disclosure (a state of affairs in relation to which the Tribunal expresses no concluded view), the putative visit took place in August 2014, which is now nearly nine years ago. On the basis of [the applicant’s wife’s] claims in her statement, there have been no other, follow-up visits to her mother by CID officers, and both her mother and her [sibling] continue to reside in Sri Lanka in the same house, and continue to operate the same [product 1] shop, from the same location as was the case at the time of the alleged visit. These factors, coupled with the Tribunal’s findings that neither of the Applicants are persons with any profile of interest when they left Sri Lanka; when also coupled with the Tribunal’s other findings - further below - in relation to more recent Sur place activities by [the applicant] whilst in Australia now leads the Tribunal to conclude that the chance that [the applicant] is at risk of facing harm in Sri Lanka by reason of the fact of the website disclosure is remote. As such, the Tribunal concludes that [the applicant] does not face a ‘well-founded’ fear of persecution in consequence of the website disclosure.

Sur place activities: claims of Tamil activism, since arrival in Australia:

In his most recent SHEV application [the applicant] now also claims involvement in Sur place activities, claiming that during his residence in Australia he has become an ‘active’ member of the Tamil diaspora. This includes his being [social media connected to] the [Community Group 2], [details deleted]. [The applicant’s] own [social media] is claimed to contain many [stories] about the human rights situation in Sri Lanka, and in which he celebrates LTTE heroes. He also claims to have been [actively involved with Community Group 3].
On the basis of a letter of support from [Community Group 3], the Tribunal is prepared to accept that [the applicant] has engaged in voluntary work for the Tamil community in Queensland for over six years, and has attended many Tamil cultural, family, and religious events in Queensland. The Tribunal is also prepared to accept that [the applicant] may have been active on social media in the sense of his ‘liking’ posts, and ‘sharing’ some of these; and has been active within [Community Group 3].
In relation to Sur place activities, the Tribunal notes the revised country guidance provided by the United Kingdom Upper Tribunal, on 27 May 2021 in its guidance decision in KK and RS (Sur Place activities: risk) Sri Lanka CG ([2021] UKUT 00130 (IAC)). Therein, and after having received extensive expert evidence in relation to Sur place activity by members of the Tamil community in the United Kingdom (where the Tamil expatriate community is far larger than is the case in Australia), the UK Upper Tribunal recorded, in part:
4.GoSL [Government of Sri Lanka] views the Tamil diaspora with a generally adverse mindset, but does not regard the entire cohort is either holding separatist views or being politically active in any meaningful way.
5.Sur place activities on behalf of an organisation prescribed under the 2012 UN regulations is a relatively significant risk factor in the assessment of an individual’s profile, although its existence or absence is not determinative of risk. Prescription will entail a higher degree of adverse interest in an entire organisation and, by extension, in individuals known or perceived to be associated with it. In respect of organisations which have never been proscribed organisation that remains de-proscribed, it is reasonably likely that there will, depending on whether the organisation in question has, or is perceived to have, a separatist agenda, be an adverse interest on the part of GoSL, albeit not at the level applicable to proscribed groups.
…/
19.Returnees who appear on the watchlist will fall into one of two sub-categories: (i), those who, because of their existing profile, are deemed to be of sufficiently strong adverse interest to warrant detention once the individual has travelled back to their home area or some other place of resettlement, and (ii), those who are of interest, not at a level sufficient to justify detention at that point in time, but will be monitored by the authorities in their home area or whereever else they may be able to resettle.
20.In respect of those falling within sub-category (i), the question of whether an individual has, or is perceived to have, taken a “significant role” in Tamil separatism remains the appropriate touchstone. In making this evaluative judgement, GoSL will seek to identify those whom it perceives as constituting a threat to the integrity of the Sri Lankan state by reason of the committed activism in furtherance of the establishment of Tamil Eelam.
21.The term “significant role” does not require an individual to show that they have held a formal position in an organisation, are a member of such, or that their activities have been “high profile” or “prominent”. The assessment of their profile will always be fact-specific, but will be informed by an indicator-based approach, taking into account the following non-exhaustive factors, none of which will in general be determinative:
i.The nature of any diaspora organisation on behalf of which an individual has been active. That an organisation has been proscribed under the 2012 UN regulations will be relatively significant in terms of the level of adverse interest reasonably likely to be attributed to an individual associated with it;
ii.the type of activities undertaken;
iii.the duration of any activities;
iv.any relevant history in Sri Lanka;
v.any relevant familial connections.

The Tribunal has had regard for the current gazetted list of organisations and persons that are proscribed by the Sri Lankan Government,[9] and notes that neither [the applicant] or his wife, [named] are now listed on the gazette notice, as proscribed persons. The Tribunal similarly observes that none of the community organisations or Tamil diaspora entities in Australia with whom [the applicant] claims an association is on the proscribed list, either.
[9] The Gazette of the Democratic Socialist Republic of Sri Lanka (Extraordinary) No. 2291/02, Monday August 01, 2022: Amendment to the List of Designated Persons under Regulation 4(7) of the United Nations Regulations No 1 of 2012.
The Tribunal has also considered the actual Sur place activity claims made by [the applicant], and does so on the basis of an understanding that the Government of Sri Lanka does go to efforts to monitor the activities of the Tamil diaspora in Australia. Yet, the Tribunal notes that there is nothing in the Department of Home Affairs recent COISS Standard Q & A Report ‘Tamil diaspora’[10] assessment to now raise any basis for a concern that his described activities in Australia would be likely to make him a target of interest to the Government of Sri Lanka.
[10] Sri Lanka: 20230417162333 – Tamils – LTTE – Adverse security assessment – Data breach – Active in diaspora (28 April 2023): see, in particular, the analysis on page nine and following, given in response to Question 4: ‘In terms of the SLG's adverse interest in the Tamil diaspora, is there any update to the advice in LKA CI180917105145877, particularly as it relates to the Transnational Government of Tamil Eelam (TGTE) and the Tamil Coordinating Committee?’
On the basis of the evidence that has been actually received for consideration and assessment by the Tribunal in relation to his claimed Sur place activities, the Tribunal concludes that, when this is assessed against his relevant history in Sri Lanka prior to his departure [in] February 2012, that it becomes very unlikely that he will be perceived as constituting any form of threat to the integrity of the Sri Lankan State by reason of committed separatist activism undertaken whilst in Australia in furtherance of the establishment of a separate Tamil Eelam.
In order to qualify as a refugee for purposes of s.36(2)(a), the Applicant must have “a well-founded fear of persecution”, as defined in s.5J of the Act. Each of the requirements in s.5J(1)(a), (b), and (c) must be satisfied. The test for well-founded fear as enunciated by the High Court in Chan v Minister for Immigration and Ethnic Affairs ((1989) 169 CLR 379) involves both subjective and objective elements. Not only must the applicant personally hold a fear persecution; but there must also be an objectively reasonable basis for it. In this case, the Tribunal is not satisfied that there is the necessary objective basis on which to fear persecution, in the sense of there now being a real chance of [the applicant] being persecuted on any of his claimed grounds. The Tribunal therefore concludes that he is not a person to whom Australia owes protection obligations under s.36(2)(a) of the Act.
Complimentary protection criteria assessment – s.36(2)(aa):
In order to qualify under the complimentary protection criteria in s.36(2)(aa) of the Act, the Minister (or, as here, the Tribunal), needs to be satisfied that there are “substantial grounds for believing that as a necessary and foreseeable consequence” of the Applicant being removed from Australia and returned to Sri Lanka there is a “real risk” that the Applicant will suffer from “significant harm”, as described in s.36(2A) and in s.5(1) of the Act.
The Tribunal proceeds on the basis that the real risk element in the complimentary protection criterion in s.36(2)(aa) is substantially the same as that for the ‘real chance’ test in s.36(2)(a) (consider: MIAC v SZQRB (2013) 210 505).
For the reasons previously identified by the Tribunal in relation to its findings in respect of a claim of protection under s.36(2)(a), the Tribunal considers that there is also not a real risk of [the applicant] now suffering significant harm as defined in s.36(2A), if returned to Sri Lanka because of his Tamil ethnicity, an imputed political opinion, the website disclosure, or in consequence of any Sur place activities in Australia.
There is also no evidence or information available to the Tribunal to suggest that returnees to Sri Lanka are at risk of persecution solely on the basis of their having been categorised as ‘failed asylum seekers’, in Australia. In this regard, the Tribunal notes, in particular, the analysis provided by the Department of Home Affairs COISS Standard Q& A Report dated 28 April 2023, as given in response to Question One therein;[11] as well as the DFAT Country Information Report on Sri Lanka (23 December 2021), at paragraphs 5.18 – 5.32.
[11] Question One: ‘Are there any reports to suggest that the Sri Lankan Government (SLG)
As a person who illegally departed from Sri Lanka, [the applicant] may be initially detained upon his return to Sri Lanka for purposes of ensuring his appearance before a court on charges of having committed the offence of illegal departure, under the Sri Lanka Immigrants and Emmigrants Act (1948). The consequences of a conviction for that offence is understood to typically amount to only a fine.[12] That consequence is one that arises by operation of a law of general application, and does not arise because of any of the grounds now claimed as his basis for his request for protection.
[12] DFAT Country Information Report, 23 December 2021, paragraph 5.23 refers.
For the reasons now given, the Tribunal concludes that [the applicant] does not satisfy the criterion set out in s.36(2)(aa) of the Migration Act now necessary in order to qualify for a protection visa on complimentary protection grounds. It follows therefore that the other named Applicants, as family members of [the applicant], are unable to satisfy the criterion set out in s.36(2)(b), or in s.36(2)(c), and also cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the Applicants protection visas.

Andrew McLean Williams
Member

‘ANNEXURE A’ - 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.
…
5HMeaning of refugee

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.
…
5JMeaning of well-founded fear of persecution

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.

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.

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:

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;
conceal his or her true race, ethnicity, nationality or country of origin;
alter his or her political beliefs or conceal his or her true political beliefs;
conceal a physical, psychological or intellectual disability;
enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

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.

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.

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.

5KMembership 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:

the first person has ever experienced; or
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.
5LMembership 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:

the characteristic is an innate or immutable characteristic;
the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
the characteristic distinguishes the group from society; and

(d)the characteristic is not a fear of persecution.
5LAEffective protection measures

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:

the relevant State; or
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.

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.
…

Protection visas – criteria provided for by this Act

…

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:

is mentioned in paragraph (a); and
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:

is mentioned in paragraph (aa); and
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.
…

presumed security grounds?

has taken an adverse interest in persons detained in Australia, on
presumed security grounds? Department of Home Affairs COISS, Q&A Report (28 April 2023), at p. 2.

[2023] AATA 2502

19 May 2023

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Immigration

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Natural Justice

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