1807282 (Refugee)

[2021] AATA 782

1807282 (Refugee) [2021] AATA 782 (22 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1807282

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Irene O'Connell

DATE:22 February 2021

PLACE OF DECISION:  Sydney

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

Statement made on 22 February 2021 at 12:55pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Tamil – imputed association with the Liberation Tigers of Tamil Eelam (LTTE) through familial ties – illegal departure from Sri Lanka – incorrect information in protection visa application – prevalence of document fraud – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 57, 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

1. This is a review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Safe Haven Enterprise visa under s.65 of the Migration Act 1958 (the Act). 

2. The applicant, who claims to be a citizen of Sri Lanka, arrived in Australia at Coco Keeling Islands [in] April 2011 and was transferred to Christmas Island Immigration Detention Centre (IDC). He sought Australia’s protection on the basis that he fears serious harm from the Sri Lankan authorities because he is a Tamil with an imputed association with the Liberation Tigers of Tamil Eelam (LTTE).

3. As the applicant was an unauthorised maritime arrival his claims were assessed through the Protection Obligations Determination (POD) process of the Department and he was found to be owed Australia’s protection. He was notified of this on 14 July 2011 but also notified that the granting of a visa was subject to health, identity and character checks.

4. In December 2014 legislative amendments were made preventing unauthorised maritime arrivals, including those whose matters were not finally determined, from the grant of a permanent protection visa. As the applicant’s health and character assessments were not completed, he was informed of the need to lodge an application for a Safe Haven Enterprise (Class XE) visa.

5. On 29 October 2015 the applicant lodged an application for a Safe Haven Enterprise visa. He claimed that he has experienced past harm from the Sri Lankan authorities and fears harm on return. The harm he fears is by reason of his ethnicity (Tamil), claimed familial ties with the LTTE, illegal departure from Sri Lanka and that he would be a failed asylum seeker if required to return to Sri Lanka.

6. The delegate refused the grant of the visa on 28 February 2018 on the basis that they were not satisfied that the applicant had a profile of an LTTE associate nor that he experienced past harm from the authorities of Sri Lanka. The applicant sought review of the delegate’s decision on 18 March 2018.

   CRITERIA FOR A PROTECTION VISA

7. The criteria for a protection visa (both temporary and permanent) are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

8. 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.

9. 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).

10. Under s.5J(1)(a) of the Act, 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. For a person’s fear of persecution to be ‘well-founded’ there must  be a real chance that if the person is returned to the receiving country, they would be persecuted for one or more of the reasons mentioned in subsection (a) 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.  Notably s.5J(4) qualifies the concept of persecution by requiring that:

    ·One or more of the reasons set out in s.5J(1)(a) are the essential and significant reason or reasons for the persecution;

    ·The persecution involves serious harm to the person; and

    ·The persecution involves systematic and discriminatory conduct.

11. Section 5J(5) sets out examples of what constitutes serious harm. These are non-exhaustive and include the following:

    (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; denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

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

    CLAIMS AND EVIDENCE

    Claims made before the Department

13. The applicant was interviewed on Christmas Island on 11 May 2011 by a departmental officer. A written summary of this interview indicates that the applicant stated that his parents and one brother were at that time living in a refugee camp in Tamil Nadu in India. He stated that he and his family fled to India in1990. He claims that he returned to Sri Lanka in 2000 along with one other brother and that the return to Sri Lanka was facilitated by the UNHCR.

14. He indicated that he travelled to Australia with this brother and his family and that his brother made all the arrangements for their boat trip to Australia.

15. He stated that his eldest brother who has been missing for many years is suspected to have been involved in the LTTE, and that the Criminal Investigation Department (CID) frequently came to question the family as to the brother’s whereabouts.

16. In a Statement of Claims (dated 12 June 2011) attached to his application for a POD assessment the applicant set out the following. He stated that he left Sri Lanka because he was in fear of his life from the Sri Lankan authorities. He stated that his national identity card was confiscated by the CID and that they frequently visited the family, questioning them about the whereabouts of their eldest brother. He stated that after his NIC was taken, he was invited to the CID office to get it back, but he did not go as he was in fear:

    we realised that time that time is running out and we had to flee the country otherwise we risk being persecuted and possible killed under suspicion of have links with the LTTE.  My brother suggested we should flee to Australia and seek refuge. He made all the arrangements for us. [In] March 2011 we left for Australia.

17. The applicant also wrote the following at paragraphs 9 and 10 of this statement:

    Until 2007 we did not have any serious problems with the Government. It was only after 2007 that the problems started. We suspect that other people who are from our  area, who have been taken for questioning by the CID and have spoken up under torture about [Brother A] and his involvement with the LTTE has drawn the attention of the CID on our family. [Brother B] has been taken roughly on three occasions by the CID. He was questioned about [Brother A] and his involvement with the LTTE. He has been bashed up on these occasions.

    [Brother A] disappeared in 1990 when we left for India. He did not live with us but remained with my grandmother. We do not know at what stage after we left, he got involved with the LTTE. If my parents knew that he was involved they would have never allowed him. After he disappeared, we learnt from other people who also had children who were involved with the LTTE that [Brother A] was involved. The LTTE used to take a lot of children during this period and trained them to fight for them. When the peace talks (around 2000-2002) were going on between the Government and the LTTE, the Sri Lankan Government accused the L TTE of recruiting minors. After this the LTTE stopped recruiting minors. It was in the News that Norway and UN were accusing the LTTE of taking minors.

18. The applicant claimed that both he and his brother ([Brother B]) were assaulted by the CID and he believes that if he returns to Sri Lanka he will be taken by the CID and prosecuted “under suspicion of being linked with the LTTE.”

19. In the applicant’s application for a Safe Haven Enterprise Visa lodged on 29 October 2015, the applicant sets out the following. He states that he was born and lived at [Location 1], Northern Province, Sri Lanka until 1995. From 1995 until 2001 he lived in [a refugee camp] in Tamil Nadu, India.  He also states in another part of the application that he lived in Tamil Nadu from 1990 until 2001. In 2001 until March 2011 he lived in [Location 2] in the Northern Province of Sri Lanka. He then travelled to Australia and spent seven months in immigration detention on Christmas Island.

20. In terms of his departure from Sri Lanka and arrival in Australia, he repeats that his brother made all the arrangements. He states that “We stopped for 1-2 days which I at first thought was somewhere else in Sri Lanka but then realised we were in India. Then we continued by boat and were taken from the Cocos Islands to Christmas Island.”

21. In an accompanying statutory declaration (dated 26 October 2015) the applicant reiterates the claims he made in respect to his POD assessment. He states that “less than a month (two weeks) before I fled Sri Lanka my National ID Card (NIC) was confiscated by the Criminal Investigation Division” and that he and his brother were questioned about the whereabouts of their eldest brother who was suspected to have been involved with the LTTE.

22. He also states that his family had lost contact with this brother when they went to India in 1990. He states at paragraph 10 of this declaration that:

    [Brother A] disappeared in 1990 when we fled Sri Lanka for India. He separated from us as was my grandmother and therefore he did not come with us to India. He and my grandmother remained behind. He was approximately [age] years old. We do not know he became involved with the LTTE. My parents would never have allowed him to do that if they had been there. After he disappeared, we learnt from other people who also had children who were involved with the LTTE that [Brother A] was involved. The LTTE used to take a lot of children during this period and train them to fight for them. When the peace talks (around 2000 - 2002) were going on between the Government and the LTTE, the Sri Lankan Government accused the LTTE of recruiting minors. After this the LTTE stopped recruiting minors. It was in the news that Norway and The UN were accusing the L TTE of taking minors. Since there were so many people killed in 2007 and there were about 148000 unidentified bodies found in mass graves, we think it most likely that [Brother A] is dead.

23. The applicant states that his other brother who had remained in India with his parents returned to Sri Lanka sometime in 2013. This brother was approached by the CID and arrested and imprisoned [in] Jail for a nine-month period, during which time he was subject to torture. The applicant claims that the brother’s arrest and detention was because of the eldest brother’s involvement with the LTTE.

24. He states the following at paragraphs 29 to 33 of the same statutory declaration:

    Almost two years ago, my other brother [Brother C], decided he would leave the refugee camp in India and return to Sri Lanka and see whether it was safe for his family (wife and children), my parents and my cousin-sister's children to return. Living in a refugee camp is no life for them….

    When [Brother C] went back to [Location 2], he found people had moved into our house there and so he stayed with [Cousin D]. He also tried visiting [Location 1], the place we originally lived when we were young. He could not find our house there as everything was developed and lots of other people moved into the area.

    Soon after this at [Cousin D]'s house, he was visited in our village by the CID and questioned by them about [Brother A]. The authorities then put him [into] Jail. This is a horrible place. People have family members who were taken to [jail] 20 years ago and they have never heard from them since. My brother was tortured there, and he was detained for 9 months.

    At the end of 9 months, the authorities released my brother with no certificate from the Courts, nothing official. They just verbally told him they suspected he was associated with the L TTE and told him not to complain about it. My brother wrote to the Red Cross about the incident.

    I believe if I return to Sri Lanka, the same type of thing that happened to my brother will happen to me.

25. The applicant’s legal representative made a written submission (dated 28 October 2015). In this submission the applicant’s claims for protection are summarised as his Tamil ethnicity, his perceived opposition to the Sri Lankan government as a suspected member of the LTTE and his attempt to secure protection in Australia. The submission references country information in support of these claims and in conclusion it is contended that the applicant has a well-founded fear of persecution should he return to Sri Lanka.

26. The applicant was interviewed by a delegate of the Department on 17 January 2018 and on 29 January 2018 a delegate of the Department wrote to the applicant in accordance with s.57 of the Act. The following was set out:

    Contrary to your claim that you departed from Sri Lanka and travelled directly to Australia, information before the Department indicates that the boat you travelled to Australia on, codenamed [Vessel 1], departed from [City 1], Tamil Nadu state, India and travelled directly from India to Australia.

27. The applicant was invited to provide a response this information and to attached country information regarding the situation for Tamils and returning asylum seekers in Sri Lanka.

28. The applicant provided a response by letter (dated 26 February 2018) as follows:

    Why you have not declared that you commenced your journey to Australia from India rather than Sri Lanka.

    Around late 2011, or beginning of 2012, I was interviewed by the Australian Security Intelligence Organisation (ASIO). During that interview, I informed ASIO that my boat journey to Australia started from India. I voluntarily informed ASIO of this information persona1y.

    Our boat's GPS operator, [Mr E] (also known as [Alias E]), instructed us to inform the Australian Immigration office that our boat journey to Australia started from Sri Lanka rather than from India. He also said that if we say our journey started from India then our asylum claim will be refused by the Australian government. At one stage [Mr E] threatened me that "If you don't follow my instructions then you will face a lot of trouble from me" .

    At that stage, I did not know what to do. I was worried that [Mr E] will harm me and also worried that the Australian government will refuse my claim if I said my journey  started from India. Therefore, I decided to declare that my journey commenced from Sri Lanka rather than from India.

    Until now, I am still scared of [Mr E]. I heard from people on the boat that he is linked to an organised crime group. I also heard that he is living in Australia. He can easily locate me and harm me if he learned that I named him. He has a list of names of people on the boat.

    When we left Sri Lanka, all I know was we were going to Australia. I never knew we were going to stop in India. We were not informed of our travel schedules. While I was in India, the people organising the journey to Australia did not give me the exact date of our departure. When I asked them when we were leaving, they replied: "We will leave next week". The same answer was given every time I asked.

    While our boat travelled to Australia from India, my stay in India was just a transit stop to wait for our departure to Australia.

    The correct information as to when and how you last departed Sri Lanka.

    Since 2009, my brother [Brother B] and I suffered so much physical and mental abuse from the Sri Lankan Central Intelligence Department (CID) officers. After the CID men confiscated me National ID Card and my brother's National ID Card, we decided to flee Sri Lanka due to our fear for our safety and fear of death.

    Around early 2010 (April or May) we went to India from Sri Lanka to wait for our boat to Australia.

    Around early 2010 (April or May), from [Town 1] (Sri Lanka) my brother, his family and I took an auto rickshaw during the night and went to a seashore. From there, some people took us to Tamil Nadu, India on a small fishing boat. A different person picked us from Tamil Nadu seashore and took us on a bus to [a] farm. The bus journey was ve1y long, we reached [the] farm in the evening of the same day.

    We stayed in [that] farm up until we started our journey to Australia. My brorher, his family and I lived on the same [farm] in the duration of our stay in India.

    Details of your status in India when you departed in 2011, including documentation for you and any family members included in this application related to registration with the Indian authorities. If you cannot provide such documentation, please provide a reasonable explanation why you cannot.

    I cannot provide any documentation of my status in India. Our arrival and presence in India were illegal. We had to be hidden from Indian government authorities to avoid detection. We never went beyond the farm. We were like prisoners in the farm. We did not have a phone with us, and we did not have a chance to communicate with anyone else during our stay.

    Our food and necessities were provided by the people organising our journey to Australia. We were provided food daily. We cooked our food on the same farm. All we did was cooking, eating and sleeping.

    Our wait to depart India lasted nearly eight to nine months until one night a couple of people came to [the] farm and took us to an Indian seashore. From that seashore they took us on a small fishing boat and dropped us on a bigger boat in the sea. On that bigger boat we started our journey to Australia.

    Due to staying illegally in India as stated above, I am unable to provide any documentation of my status in India.

    Considering you travelled to Australia from India, why your claims as to the reasons you last left Sri Lanka should still be accepted or any other reasons not stated in your application as to why you cannot return to Sri Lanka

    I maintain that I travelled to Australia from Sri Lanka. My stay in India was a transit stop only on the way to Australia. I had no legal status in India and no effective protection  there. Despite transiting through India, I believe that my claims for protection must be accepted as I have stated on my application.

1. The applicant via his legal representative provided country information in respect to the treatment of returnees and the treatment of Tamils in Sri Lanka.

   Claims before the Tribunal

2. The applicant provided a copy of the delegate’s decision record in applying for a review of the decision.

3. The applicant, through his representative, made a written submission to the Tribunal (dated 29 October 2020) and attached an article sourced from Human Rights Watch dated 27 March 2020. The applicant contends that he has a well-founded fear of persecution in Sri Lanka because he is a young Tamil who has been of adverse interest to the authorities in the past; his perceived opposition to the Sri Lankan government by reason of an imputation that he is an LTTE supporter or member; and his attempt to secure protection in Australia by spoiling the image and reputation of Sri Lanka.

4. In this written submission to the Tribunal the following is stated:

   The applicant had three brothers and his eldest brother [Brother A] disappeared in 1990 when [Brother A] was a minor after the rest of the applicant's family left for India because of the fear to their lives from the racial conflict in Sri Lanka. [Brother A] had remained in Sri Lanka with the applicant's grandmother at that time and it was expected that he would come with her.

   However, the applicant's family learned from other people who later came to India from Sri Lanka that [Brother A] was involved with the L TTE and that the L TTE had taken a lot of children including him in that period to train them for fighting.

   In India, the applicant lived during the whole period from 1990 to 2000 with his family at [a] Refugee Camp in Tamil Nadu. From 1991 to 2000 he studied at the Government School in the Camp up to year [level], although he did not complete this level.

   In the year 2000 his family returned to Sri Lanka. His brother [Brother B] returned alone first and the others returned a couple of months after that. On return the applicant resided at [Location 2], Sri Lanka in the period 2001 to 2010. From 2000 to 2010 he worked as a fisherman on his older brother's boat and his cousin [Cousin D] 's boat.

   His parents who were living in [Location 1] and were visited by the CID inquiring about [Brother A] and because of that fear they left for India in around 2004. The applicant's brother [Brother B] was able to meet [Brother A] in around end 2006/early 2007 in [Town 1]. The applicant only started experiencing problems with the CID after 2007 possibly because [Brother B] met [Brother A] and when people whom the authorities took and interrogated from the applicant's area may have admitted under torture that the applicant's brother [Brother A] was still involved with the L TTE and that [Brother B] met [Brother A].

   The applicant came to know from his cousin [Cousin D] that [Cousin D] 's friend had seen [Brother A] in early 2009 just before the final war between LTTE and the Sri Lank.an military. The applicant also came to know from [Brother B] that there were other reported sightings of [Brother A] in between 2007 and 2009.

   After the civil war in Sri Lanka the authorities were determined to find any remnants of LTTE and to completely wipe them out once and for all and that may account for their repeated interests in [Brother A]'s whereabouts.

   [Brother B] was questioned about [Brother A] and was beaten by members of the Central

   Intelligence Department (CID) in suspicion of links with the LTTE. This occurred on three occasions from 2007 to 2010.

   The applicant left Sri Lanka in 2010 out of fear for his life because of a number of incidents that happened to him in 2010 and the incidents that happened to him and his brother mainly in 2010.

   In around April 2010 the applicant finished his work as a fisherman and was sitting in a coffee shed besides the beach when a man (whom the applicant later came to know as a CID officer) questioned the applicant about his brother [Brother A] and [Brother A]'s links to the LTTE. The CID man then slapped him hard when the applicant said that he has no business to ask the applicant about his brother.

   Six weeks after that incident and about two weeks before he departed Sri Lanka two different people from the CID came to his brother [Brother B]'s house and confiscated the applicant's National ID Card (NIC). The applicant was visiting his brother [Brother B] and his family on that day since he took meals at their house regularly although he was residing at his cousin [Cousin D]' s residence. It appeared to the applicant that the CID had wanted to speak with the applicant's brother [Brother B] at his house. But when they saw the applicant at [Brother B]'s house, the CID wanted to know who he was and what he was doing there. The applicant had to show them his NIC. One of the CID officers took the applicant's NIC and put it in his pocket. The CID also confiscated [Brother B]'s National ID Card. The CID told them if they want their NIC back they should attend the CID office and get it. They also questioned the applicant and [Brother B] about [Brother A]' s location…

5. The applicant gave oral evidence at a hearing conducted on 5 November 2020. The applicant’s migration agent was present at the hearing via a telephone link and the hearing was conducted with the assistance an interpreter in the Sri Lankan Tamil language.

6. The applicant provided the Tribunal with an untranslated document said to be his father’s death certificate. The Tribunal noted that the applicant had also provided a copy of his birth certificate and also a document in respect to the detention of his brother in 2013. The applicant stated that his documents were provided to him from his mother and brother in India.

7. The applicant was asked if he had had any involvement with the LTTE. He stated not directly. When asked to elaborate on this statement he stated that he had sometime aided in transporting goods on his brother’s and cousin’s boat.

8. The applicant indicated that he had come to the adverse attention of the Sri Lankan authorities on two occasions. He stated that the first occasion was when he was at a coffee shed at the beach where he fishes, and he was approached by some men and assaulted. He stated he could not recall the exact date, but it was perhaps late 2009 or sometime in 2010.

9. The second occasion was when he was at his brother’s home and the CID arrived and took his National Identity Card from him and threatened him. He stated that at this point in time he and his brother decided that they needed to leave Sri Lanka as they were no longer safe in Sri Lanka.

10. The Tribunal discussed with the applicant the inconsistent information he had provided in his application that he had departed from Sri Lanka in March 2011 and his now claim that he departed Sri Lanka in June 2010 and spent some nine months in India in hiding before coming by boat to Australia. The applicant indicated that he had provided this false information because the person smuggling them had threatened them not to disclose that their departure was from India not Sri Lanka.

11. He stated that in their ASIO interview, once they felt safe, they disclosed to them that they had left from India. The Tribunal noted that the dates for given events were therefore dates when he was in India. The applicant responded that he had provided the correct time intervals but that the date of departure from Sri Lanka was incorrect.

12. The applicant stated that his mother and brother resided in a refugee camp in India and that the death certificate of his father testified to this. The applicant indicated that he is in contact with this family in India and his brother in Australia.

    Post hearing submission

13. On 29 November 2020 the applicant’s representative submitted the following documents:

    ·His birth certificate and a translated copy;

    ·Death certificate and a translated copy issued by the Government of Tamil Nadu Department of Municipal Administration & Water Supply issued [in] 2017;

    ·A First Detention Order (dated [in] January 2013) relating to his brother;

    ·A First Extension of detention (dated [in] April 2013) relating to his brother;

    ·Extension of detention and change of place of detention to [specified jail] (dated [in] June 2013) in respect to his brother;

    ·A Detention Attestation (dated [November] 2013) from the International Committee of the Red Cross stating that the applicant’s brother was visited in prison by a delegate of the ICRC.

14. As the death certificate was issued from India and not the country of reference (Sri Lanka) the Tribunal sought verification of the death certificate through the Department of Foreign Affairs and Trade (DFAT). DFAT undertook the following verification process:

    Post has contacted the Tamil Nadu Department of Rehabilitation and Welfare of Non-Resident Tamils to authenticate the death certificate of [the applicant’s father]. Rehabilitation Commissioner ([named]) has confirmed in writing that the death certificate, including the place and date of death, are true and correct.

    We also sought advice from the Organisation for Eelam Refugees' Rehabilitation, an NGO that works closely with Sri Lankan (SL) Tamil camp administrators. OfERR Coordinator ([named]) shared [the applicant’s father]'s camp registration details and confirmed the death certificate accorded with their records with one exception - his camp of residence. [the applicant’s father] actually resided in [a named camp] and died in [a different named] refugee camp while visiting a relative/friend.

    Country information

15. 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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has had regard to the DFAT Country Information Report Sri Lanka (4 November 2019) (the DFAT Report).

16. The DFAT Report provides the following relevant background in respect to Sri Lankan Tamils who fled to Tamil Nadu:

    3.98 Approximately 95,000 Sri Lankan Tamil refugees live in the southern Indian state of Tamil Nadu, most of whom fled the war in the mid-1980s or are the descendants of those who fled (almost 60 per cent are second- and third generation). The majority of Sri Lankan Tamil refugees (approximately 60,000) reside in 107 camps administered by the Tamil Nadu Government. The remainder live in host communities outside the camps. Camp refugees are registered with India’s Department of Rehabilitation and Welfare, and are provided education, health care, social security and amenities by the Indian Government. Refugees living outside the camps are required to register at their local police station and to re-register if they move between police precincts. In addition to this cohort, there is a smaller undocumented group of refugees residing outside the camps who have not registered for fear of police harassment. Refugees living outside the camps are generally better off than those in the camps, and often run successful businesses. They are unable to move into the camps, with camp registration having closed in 2011. DFAT understands there are regular illegal boat movements carrying Sri Lankan Tamil refugees from Tamil Nadu to Sri Lanka and back, in order to visit relatives, usually with the assistance of local fishermen.

    3.99 Sri Lankan Tamils have limited work and education rights in India. They are not entitled to Indian citizenship, although in June 2019 the Madras High Court instructed the Indian Government to reassess the citizenship applications of 65 Sri Lankan Tamil refugees of Indian origin. The Indian Government was considering their claims at the time of publication. Following the High Court’s judgement, 13,805 Sri Lankan refugee families (representing over 40,000 individuals) submitted a petition to the Indian Government seeking Indian citizenship.

    3.100 Only a small number of Sri Lankan Tamils have returned from Tamil Nadu to Sri Lanka since the end of the war. According to Sri Lankan Government statistics from March 2019, 8,168 Sri Lankan Tamil refugees had returned from Tamil Nadu between 2011 and 2018, mostly with UNHCR assistance. UNHCR provides reintegration, transport and non-food item support to returnees, as well as legal advice in relation to housing, land and property issues. UNHCR support includes a free air ticket to returnees (to Colombo’s Bandaranaike International Airport); a one-off reintegration grant of LKR10,000 (approximately AUD82) for persons over the age of 18 and LKR7,500 (approximately AUD61) for those below 18; and a one-off non-food item allowance of LKR10,000 per family or LKR5,000 (approximately AUD41) for singles. UNHCR also provides LKR2,500 (approximately AUD20) per person for transportation assistance from the airport to their destination of choice (with most returning to their place of origin). Colombo’s Bandaranaike International Airport is currently the only entry point for returns, although discussions between India and Sri Lanka over the resumption of a ferry service between Chennai and northern Sri Lanka are ongoing. Those returning informally (i.e. outside of UNHCR processes) are not eligible for UNHCR cash grants or non-food items. The International Organization for Migration (IOM) also provides pre- and post-departure support services to Sri Lankan Tamil refugees from Tamil Nadu, including livelihood assistance.

    3.103 The resumption of a ferry service would likely encourage more returns, including by enabling refugees to return to Sri Lanka with more of their personal and household items accumulated in India (restrictions currently apply — see paragraph 3.104). DFAT sources estimate at least 2,000 refugees would be ready to return immediately if a ferry service were established. Others may consider the voyage if they received positive feedback from those refugees returning via this service, if and when established. India is also considering charter flights from Tamil Nadu to northern Sri Lanka, which, if introduced, could accommodate a larger baggage allowance than currently permitted under the UNHCR program, which relies on commercial flights into Colombo.

    3.105 Despite these challenges, returnees from Tamil Nadu that DFAT has spoken to report they are glad to have returned to Sri Lanka and would recommend return to other refugees. While there is some social stigma attached to returnees from Tamil Nadu, sources told DFAT that locals were generally welcoming, and returnees did not feel they were treated differently. Anecdotal evidence suggests repatriation is not considered an attractive proposition for certain groups of Sri Lankan Tamil refugees, particularly those born in India (refugee youth have not been well-represented among voluntary returnees to date). Local sources said they were not aware of returnees from Tamil Nadu being subjected to rehabilitation for real or perceived links to the LTTE since 2015, although few former LTTE members are thought to have returned to Sri Lanka from Tamil Nadu. DFAT understands that a small number of low-profile former LTTE members, who performed low-level, non-combat functions for the group, returned to Sri Lanka from Tamil Nadu with UNHCR assistance in 2019. DFAT is unaware of any high-profile former LTTE members returning to Sri Lanka from Tamil Nadu in 2019. DFAT is unable to verify if any high-profile former LTTE members have returned to Sri Lanka from Tamil Nadu outside of official processes or attest to their treatment on return. According to a UNHCR survey, over 90 per cent of returnees from Tamil Nadu felt either generally or completely safe in Sri Lanka. Credible sources were not aware of returnees from Tamil Nadu being subjected to monitoring or harassment by the authorities.

17. On the issue of failed asylum seekers returning to Sri Lanka, the DFAT Report states as follows:

    5.31 The constitution entitles any Sri Lankan citizen ‘the freedom to return to Sri Lanka’. The Immigrants and Emigrants Act (1948) (the I&E Act) governs exit and entry from Sri Lanka. Sections 34 and 35 (a) of the I&E Act make it an offence, respectively, to depart Sri Lanka other than via an approved port of departure, such as a seaport or airport, and without a valid passport. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine. Returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the I&E Act. If a returnee voluntarily returns on their own passport on a commercial flight, they may not come to the attention of local authorities if they had departed Sri Lanka legally through an official port on the same passport.

    5.32 Different agencies, including the Department of Immigration and Emigration, the State Intelligence Service, the Criminal Investigation Department and, at times, the Terrorism Investigation Division process returnees at Colombo’s Bandaranaike International Airport, including those on charter flights from Australia. These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Australian officials based in Colombo may meet charter flights carrying voluntary and involuntary returnees. The IOM meets assisted voluntary returnees after immigration clearance at the airport and provides some cash and onward transportation assistance. Processing of returnees at the airport can take several hours, due to the administrative processes, interview lengths and staffing constraints. Returnees are processed in groups, and individuals cannot exit the airport until all returnees have been processed, although returnees are free to go to the bathroom and to talk to one another during this time.

    5.33 For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. All returnees are subject to these standard procedures, regardless of ethnicity and religion. DFAT understands detainees are not subject to mistreatment during processing at the airport.

    5.34 Most Sri Lankan returnees, including those from Australia, are questioned (usually at the airport) upon return and, where an illegal departure from Sri Lanka is suspected, they can be charged under the I&E Act. DFAT understands the Police Airport Criminal Investigations Unit at Bandaranaike International Airport makes most arrests. In the process, police will take photographs, fingerprints and statements from returnees, and further enquire about activities while abroad if returnees are suspected to be former LTTE members. At the earliest available opportunity after investigations are completed, police transport individuals charged with departing Sri Lanka illegally to the closest Magistrate’s Court, after which custody and responsibility for the individual shifts to the courts or prison services. The magistrate then decides on next steps for each individual; facilitators or organisers of people smuggling ventures, including the captain and crew of the boat, are usually held in custody. Apprehended individuals can remain in police custody at the Criminal Investigation Department’s Airport Office for up to 24 hours after arrival. Should a magistrate not be available before this time (for example, because of a weekend or public holiday), those charged may be detained for up to two days in an airport holding cell. DFAT is not aware of mistreatment of returnees during this process.

    5.35 The Sri Lankan Attorney-General’s Department has directed that all passengers of people smuggling ventures, not only those suspected of facilitating or organising irregular migration, be charged under the I&E Act and appear in court. Those charged are required to appear in court in the location where the offence occurred, which involves legal and transport costs. While the frequency of court appearances depends on the magistrate, DFAT understands that most individuals charged under the I&E Act appear in court every 3-6 months. In addition to their own court hearings, those charged may be summonsed as witnesses in cases against the facilitators or organisers of people smuggling ventures. Cases are taken forward in court only when all members of a people smuggling venture have been located, contributing to protracted delays. According to local sources, some cases dating from 2015 are still ongoing. The IOM provides legal assistance to individuals charged under the I&E Act who returned to Sri Lanka with the IOM’s assistance. Some returnees charged under the I&E Act report having to travel long distances to attend court hearings and have found this disruptive to their livelihoods. At the time of publication, about 800 separate court cases were pending, with most involving several people. The I&E Act does not specify minimum mandatory sentences. Returnees who departed Sri Lanka legally are not required to face a court, as no offence under the I&E Act applies.

    5.36 Bail is normally granted to fare-paying passengers of a people smuggling venture. Bail conditions are discretionary and can involve monthly reporting to police at the returnee’s expense, including for those who have subsequently relocated to other parts of the country. In contrast, facilitators or organisers of people smuggling ventures, including captains and their crew, are usually refused bail and are taken into custody. Facilitators or organisers of people smuggling ventures may be charged under Section 45 (c) of the I&E Act. DFAT understands that facilitators or organisers of people smuggling ventures convicted under Section 45 (c) normally receive prison sentences of between one and three years, depending on the extent of their involvement in the venture, with sentences usually closer to three years. DFAT could not obtain information on the number of facilitators or organisers of people smuggling ventures convicted.

    5.37 The Attorney-General’s Department, which is responsible for the conduct of prosecutions, claims no fare-paying passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally (as distinct from facilitators or organisers). However, fines are issued to fare-paying passengers as a way of deterring future illegal departures. Fine amounts vary from LKR3,000 (approximately AUD25) to LKR200,000 (approximately AUD1,633). Well-placed sources told DFAT this fine is usually between LKR15,000 and LKR20,000 (approximately AUD122 and AUD163). A guilty plea will attract a fine, which can be paid in instalments, and the defendant is free to go. Where a passenger returnee pleads not guilty, the magistrate will usually grant bail on the basis of personal surety or guarantee by a family member. Where a guarantor is required, returnees may need to wait for the guarantor to come to court.

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

    5.39 DFAT assesses that the Sri Lankan authorities differentiate between fare-paying passengers and the facilitators or organisers of irregular migration. The authorities are more likely to pursue those suspected of being facilitators or organisers of people smuggling ventures (generally those individuals who arranged the finances for a people smuggling venture and recruited the crew, and the crew themselves) than fare-paying passengers. Unlike facilitators or organisers, fare-paying passengers are usually released on bail and generally receive only a fine for breaking the I&E Act.

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

    5.41 The Sri Lankan Government claims no returnee from Australia to Sri Lanka has been charged under the PTA. DFAT cannot verify this claim. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure. In October 2012, a court issued warrants for the arrest of a group of returnees for the theft of a vessel used to travel to Australia, for causing of grievous harm to persons, and for people smuggling.

    5.42 The Sri Lankan Government is working to replace the I&E Act, including to introduce people smuggling offences. Under the proposed new legislation, the fine for departing Sri Lanka illegally would be paid upon return at Colombo’s Bandaranaike International Airport, sparing returnees from going through often protracted and disruptive court processes. The proposed new legislation had yet to be considered by parliament at the time of publication.

    5.46 DFAT understands that some returnees, including returnees in the north and east with suspected LTTE links, have been the subject of monitoring by the authorities, involving visits to returnees’ homes and telephone calls by the Criminal Investigation Department. DFAT understands that most returnees, including failed asylum seekers, are not actively monitored on an ongoing basis. DFAT is unable to verify whether monitoring, where it occurs, is specific to former LTTE cadres. DFAT is not aware of returnees, including failed asylum seekers, being treated in such a way that endangers their safety and security. Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had no protection concerns and had not experienced harassment by the authorities, nor received monitoring visits.

1. In respect to National Identity Cards (NICs), the DFAT Report sets out the following:

   5.58 Sri Lankans generally use the National Identity Card (NIC) as their primary identification document, although birth certificates, driver’s licences and passports are also frequently used. Sri Lankan citizens are required by law to register their identity under the Registration of Persons Act (1968). Following registration, persons over the age of 16 are eligible to apply for a NIC regardless of their ethnicity, religion, language or geographic location. A NIC is obtained through one’s grama niladhari or the Department for Registration of Persons, and is required to access government services, including public health and education services. The NIC can be used to acquire all other identity documents. A NIC can be obtained only within Sri Lanka.

2. In respect to the reliability of documentation provided from Sri Lanka, the DFAT Report states that:

   5.68 The Central Registrar issues identity documents, including to populations that were in the north and east during the war. Most official records in Sri Lanka are kept in a centralised location in hard-copy format; government departments lack computerised information databases.

   5.69 Genuine identity documents can be obtained by submitting fraudulent supporting documents, including birth certificates and NICs. Counterfeit documents are the primary cause of fraud in the issue of NICs, passports and driver’s licences. People seeking illegal passports include those on the ‘stop’ and ‘watch’ lists, those wishing to falsify age to obtain employment, or those wishing to return to a country from which they have previously been deported. Sri Lanka has a mature people smuggling industry. In recent years, the Criminal Investigation Department disrupted an organised crime group that produced high quality European identity documents and visa labels on an industrial scale.

   5.70 Attempts to use fraudulent documents are common and DFAT is aware of fraudulent sponsor letters and employment letters being presented by asylum seekers. Land title deeds that have been fraudulently obtained have also been presented as evidence of an individual’s financial situation. Other asylum destination countries have reported receiving fraudulent documentation from asylum applicants, including anecdotal reports of a photography studio that took photos of individuals in old LTTE uniforms for use in asylum seeker applications. DFAT cannot verify the credibility of these reports.

   5.71 DFAT assesses that document fraud is common in Sri Lanka, and there is capacity for fraud in the process for reissuing lost documents.

3. The following relevant information is extracted below from the Report of a UK Home Office fact-finding mission to Sri Lanka conducted between 28 September and 5 October 2019 (the UK Home Office Report) published 20 January 2020:

   2. Treatment of Tamils

   2.1.1 Most sources noted that Tamils are not specifically targeted and do not suffer persecution just for being a Tamil, but they do suffer discrimination along with other minorities. According to one source there is more freedom and opportunities in the north compared to the situation pre-2015. Whilst there are increased opportunities in the north, job opportunities remain limited with the war having destroyed factories and other livelihoods and the promised economic development not happening. Housing and land for returnees remains a problem and there were a number of reintegration issues such as access to water and sanitation.

   2.1.2 After the Easter bombings the return of checkpoints (ostensibly to check for Islamist terrorists) brought back fears amongst the Tamil community who have a subjective fear and mistrust of the authorities. Tamils in the north also viewed the addition of checkpoints when entering the north as a form of harassment as there are few Muslims based there.

   2.1.3 Certain Tamils may be subject to closer scrutiny: for example, political activists and journalists and those returning from abroad may be monitored, although this was not the case for all Tamils. One source noted that they had heard stories of returning Tamils who had faced harassment and intimidation for various reasons, including being wealthy. Tamils do have more freedom of speech but fear the return of former president Rajapaksa.

   2.1.4 There have been some recent tensions between Sinhalese Buddhists and other minorities including Tamils, with several sources telling the FFT of a recent case where a Buddhist monk had laid claim to land belonging to a Hindu temple. After his death his body was cremated on land belonging to the temple, which was in violation of a court order preventing the land from being used as such. There were protests in the Tamil community, but the police were accused of doing nothing to prevent the cremation taking place.

   2.1.5 Sources also stated that they believed that there was some Buddhist colonisation of Tamil areas, possibly to attempt to change the demography of the north, although this was not to the same extent as occurred with the previous government.

   3.2 Liberation Tigers of Tamil Eelam (LTTE)

   3.2.1 When the war finished those connected to the LTTE were arrested, sent to court and ordered to go through a rehabilitation process. Some younger former cadres were given the opportunity to complete their education at school and university, some have been employed by the security forces or civil defence force with some given government employment as bus drivers and conductors. One source noted that some former cadres have gone into politics.

   3.2.2 Several sources stated that ex-cadres fear they are being monitoring by the military and intelligence. One source noted that some individuals are more likely to be monitored such as those with criminal connections.

   3.2.3 Representatives from the Human Rights Commission noted that prominent LTTE sympathisers who actively support the LTTE or raised funds for them in the past may be monitored or questioned although interest in them may depend of their past involvement and any current involvement with diaspora groups.

   3.2.4 A human rights activist told the FFT that there is still interest from the security forces to look for former members of the LTTE. He stated that some activists have been summoned to the Terrorism Investigation Department (TID) and this includes former cadres who do not have an activist profile.

   3.2.5 The representative from the northern province community told the FFT that after 2015 there continued to be some surveillance and house visits by the intelligence service on former LTTE cadres, although the style of enquiry was different to pre-2015 with the authorities being more polite and nonthreatening. Some rehabilitees are targeted by the State Intelligence Service (SIS) who visit their homes, enquire about their activities and restrict their movements. Prominent people remain under scrutiny and can be called into the Terrorist Investigation Department (TID). Whilst the style of enquiry improved post-2015 the same source noted that after the local elections in February 2018 when the Sri Lanka Podujana Peramuna (SLPP) party won there has been increasing intimidation.

   3.2.6 The Secretary to the Ministry of National Policies, Economic Affairs Resettlement and Rehabilitation (MNPEA) noted that he was not aware of any complaints from former cadres that they were being monitored and stated that there is little vigilance on the average ex-cadre.

4. The same report states as follows in respect to the treatment of returnees in general:

   4.1.1 Returning failed asylum seekers would likely be questioned at the airport by immigration officials and may be passed to the Criminal Investigation Department (CID) based at the airport. CID would make additional checks with the local police in the area where the person claimed to be from. These checks can take a long time to conduct as there is no central police database. Once released it is not unusual to experience a further check at home although the period of monitoring can vary.

   4.1.2 The representative from the northern province community stated that when failed asylum seekers are deported there may be some sensitivity with some of them being arrested and released on bail to attend court.

   4.1.3 Representatives from the International Organization for Migration (IOM) told the FFT that when people return on an emergency travel document the Sri Lankan authorities are provided the details of the person, by the relevant issuing authority, prior to their arrival. Once they return and have passed through immigration control, they would be referred to the police based at the airport to check criminal records, and if there are no criminal warrants then they would be released. Where there are outstanding criminal warrants then criminal procedures will apply. Those who travel on their own passports are not recognised as readmission migrants.

   4.1.4 IOM also noted that claiming asylum aboard is not an offence and as such when someone returns to Sri Lanka who has been absent for a number of years or has an expired visa, they would not be questioned on this and there were no media reports of returnees being interrogated on such grounds. IOM have some presence at the airport and are based before immigration control to receive passengers returning on IOM programmes and they stated that in the last couple of years they have not witnessed the intense questioning of the past where returnees may have been asked what they had been doing in the UK. The police would only be interested in an individual if there were outstanding criminal offences.

   4.1.5 When asked what would happen to returning Tamils an NGO told the FFT that they were aware of 5 cases where individuals were questioned on return about forged passports but then subsequently released. IOM stated that they did not believe there was a distinction between Tamil and Sinhalese returnees and whilst there may be isolated cases there was no systematic policy of discrimination. Two other sources stated that they were not aware of ordinary Tamils being targeted on return, with several stating they were aware of family members or members of the Tamil diaspora who have returned to Sri Lanka and not encountered any difficulty. A human rights activist told the FFT that he was unable to recall any cases of ordinary Tamils being stopped at the airport and was not aware of anyone on a watchlist being stopped although he had heard anecdotally that this happens.

   4.2 Treatment of returnees with links/perceived links to the LTTE

   4.2.1 If returning failed asylum seekers were found to have links to the LTTE they would likely face further questioning although it would depend on the case. Representative from UNHCR stated that the level of security screening at the airport has decreased since 2015 and that if you are a high profile LTTE cadre you would be subjected to additional questioning, but this would not necessarily mean you would be detained .

   4.2.2 The Attorney General’s Department and the Criminal Investigation Department told the FFT that former LTTE cadres would only be of interest if there was a pending criminal case against them and that mere membership of the LTTE would not make someone of interest, this was also confirmed by an NGO .

   4.2.3 Two sources told the FFT that former LTTE cadres returning to Sri Lanka would be able to undergo rehabilitation if they requested it, although this would not apply if they had crimes outstanding.

   FINDINGS AND REASONS

5. The applicant’s claims may be summarised as follows. The applicant claims to be a Sri Lankan citizen who fears serious harm from the Sri Lankan authorities by reason of his ethnicity (Tamil) and an imputation to be associated with the LTTE by reason of his eldest brother’s claimed involvement with the LTTE.

6. The applicant claims that he and a brother came to the adverse attention of the CID commencing in 2007. He also claims that another brother who returned to Sri Lanka from India in 2013 was detained for a period of nine months. He fears that he would be subject to the same harm as his brother should he return to Sri Lanka.

7. He further claims to have departed Sri Lanka illegally and fears harm from the authorities of Sri Lanka for this reason and because he has sought asylum in Australia.

8. The Tribunal makes the following findings in respect to the applicant’s claims. In respect to the applicant’s citizenship, the Tribunal does not have conclusive evidence before it as to the applicant’s citizenship. The applicant claims to have neither a passport nor a national identity card from Sri Lanka. The latter, he claims, was taken from him by the Sri Lankan authorities. The applicant has provided a birth certificate indicating that he was born in Sri Lanka.

9. The Tribunal notes, however, that the applicant has strong ties to India. His parents have lived in India since 1990 as has one brother. The  applicant himself states that he resided in India for a period of some 10 years. Further, as set out above the applicant arrived in Australia by boat from India not Sri Lanka as he initially claimed.

10. The applicant has provided to the Tribunal a death certificate for his father indicating that his father died in a refugee camp in Tamil Nadu state in 2107. The veracity of this certificate has been confirmed through DFAT (see paragraph 42 above). The Tribunal notes and accepts  the country information (set out above at paragraph 44) as to the numbers of Sri Lankan Tamils who resided in refugee camps in India and gives the applicant the benefit of the doubt and finds the applicant to be a citizen of Sri Lanka who has resided in India.

11. The Tribunal accepts that the applicant is of Tamil ethnicity. The applicant’s birth certificate indicates that he is Tamil and he availed himself of the assistance of a Tamil interpreter for the hearing and has done so over the course of the determination of his applications. The Tribunal does not accept that the applicant’s ethnicity alone gives rise to a well-founded fear of persecution. The Tribunal makes this finding on the basis of the country information sourced from a UK Home Office fact finding mission in 2019 and set out above at paragraph 48, which indicates that Tamils are not specifically targeted and do not suffer persecution just for being Tamil.

12. The Tribunal does not accept that the applicant has been imputed to be an associate of the LTTE through familial ties.  The Tribunal makes this finding on the basis that it finds the applicant’s evidence as to his brother’s activities and claimed association with the LTTE to be speculative and inconsistent.

13. The applicant claimed at the primary level to have had no contact with this brother after he moved to India at the age of [age]. He therefore had no knowledge of his brother’s activities but surmised that he was involved in the LTTE from comments of others. He also surmised that he was missing and presumed dead. This is set out in the applicant’s evidence reproduced above at paragraph 22.

14. The delegate, in refusing the grant of the visa, indicated that he had discussed with the applicant the plausibility that the Sri Lankan authorities would commence taking a sustained adverse interest in the applicant commencing in 2007, some 17 years after he last saw his brother and much of which time he resided in India.

15. In his written submission to the Tribunal the applicant suggests that in 2007 the brother (who was associated with the LTTE) had contacted his brother and was possibly still active in the LTTE, suggesting that this sparked the adverse interest of the authorities. This is set out in the reiteration of the applicant’s evidence at paragraph 32.

16. In the view of the Tribunal this significant revision of the applicant’s evidence raises issues as to the veracity of the applicant’s claims.

17. Similarly, the applicant claimed that the adverse interest from the Sri Lankan authorities in terms of questioning him and threatening took place immediately preceding his travel to Australia and precipitated his journey to Australia. This is set out above at paragraph 16.

18. However, after an ASIO interview and a letter from the Department he acknowledged that he was in fact in India for at least nine months prior to coming to Australia.  The Tribunal is not persuaded that this significant misinformation provided in his application for protection was simply a matter of fear of the people smuggler not wishing them to disclose that the boat departed from India. In the Tribunal’s view, this undermines the veracity of this claim and leads the Tribunal to not accept that the applicant or his brother were subject to past harm by reason of an LTTE imputation forcing them to flee Sri Lanka.

19. The Tribunal does not accept that the applicant’s brother residing in India returned to Sri Lanka in 2013 was arrested and detained for a period of nine months. The Tribunal does not accept that the applicant’s eldest brother was involved in the LTTE in any significant or sustained manner and that the family thereby came to the adverse attention of the Sri Lankan authorities.  Combined with this, the Tribunal considers it unlikely that a person who has lived most of their life in India and has no adverse profile in their own right would be subject to a nine-month detention and then simply released. The country information from DFAT set out above at paragraph 44 indicates that there is no evidence that returnees from Tamil Nadu to Sri Lanka were being subject to monitoring or harassment by the authorities.

20. The Tribunal notes that the applicant has provided to the Tribunal several documents in respect to the claimed detention of the brother, which are set out above at paragraph 41. In his statements at the primary level, the applicant said he did not have any official documents in respect to the detention of the brother although he provided a Red Cross Report. The Tribunal has considered these documents but does not place weight on these documents in light of the DFAT assessment (set out above at paragraph 47) that document fraud is common in Sri Lanka in respect to asylum claims.

21. The Tribunal does not accept the applicant would face harm on his return to Sri Lanka from  the Sri Lankan authorities by reason of an imputation of LTTE association. The Tribunal makes this finding on the basis that the applicant indicated in the hearing that he was not involved in the LTTE himself. The most he suggested was that when working on fishing boats he may have transported goods for the LTTE. As the Tribunal does not accept that the applicant’s eldest brother was involved with the LTTE and as the applicant himself has no involvement, and as the applicant has resided for a significant part of his life in India, the Tribunal does not accept that he would be imputed to be associated with the LTTE.

22. The  applicant departed by boat to Australia from India but claims that his departure from Sri Lanka to India was illegal and therefore he would face punishment for this, and as a Tamil he feared additional harm. The Tribunal notes the country information above at paragraph 44 indicates that there is regular illegal movement between Sri Lanka and Tamil Nadu.

23. The Tribunal has had regard to the UK Home Office fact finding mission to Sri Lanka that took place in late 2019. The UK Home Office Report compiled as a result of this mission and quoted above at paragraph 48 indicates that returnees such as the applicant would be questioned at the airport but adverse interest in returnees is confined to those with criminal offences.

24. The DFAT Report cited above at paragraph 45 indicates that the applicant may be subject to questioning and checks on whether he has a criminal record. The DFAT Report indicates that the authorities’ particular interest is in the smugglers not the passengers. The applicant has indicted that he was in the latter category. The DFAT Report indicates that on return to Sri Lanka the applicant could be charged under the Immigrants and Emigrants Act for his illegal departure and that he would be questioned. It also indicates that as a passenger and not a smuggler he may face a court appearance, bail and a fine. The Tribunal does not accept that these events, should they occur, constitute serious harm as required under s.5J(5) of the Act and set out above at paragraph 10 and 11.

1. The applicant also claims that as a returnee who has sought protection in another country his actions would be viewed as anti-government and that this also would give rise to serious harm at the hands of the Sri Lankan authorities by way of harassment and possible imprisonment. 

2. On the basis of the country information from the UK Home Office, at paragraph 49 ,the Tribunal does not accept that the applicant faces serious harm on his return to Sri Lanka because he has applied for protection in Australia and/or because he is Tamil and/or because he departed Sri Lanka illegally .

3. For all the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

4. Having concluded that the applicant does not meet the ‘refugee criterion’ in s.36(2)(a) of the Act, the Tribunal has considered the ‘complementary protection criterion’ in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

5. The  Tribunal has carefully considered whether what has been accepted of the applicant’s claims, that he is a Tamil who has departed Sri Lanka illegally and sought protection In Australia,  leads to a cumulative or residual risk of harm that reaches the threshold of significant harm. The Tribunal finds that it does not. The Tribunal is not satisfied that, taking account of what is accepted of the applicant’s claims, there is a real risk he will suffer significant harm.

6. Having regard to all of the evidence before the Tribunal including the applicant’s claims, the submissions made and the relevant country information, the Tribunal finds that there is not a real risk that the applicant will suffer significant harm, as defined by the Act, as a necessary and foreseeable consequence of his return to Sri Lanka.

7. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

   DECISION

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

   Irene O'Connell
   Senior Member