1809941 (Refugee) - [2022] AATA 2769

1809941 (Refugee) [2022] AATA 2769 (15 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1809941
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Nicole Burns
DATE:15 June 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 15 June 2022 at 5:03pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Court remittal – ethnicity and imputed political decision – Tamil imputed with involvement with LTTE – relative with links to another Tamil political party killed – applicant last to see him alive and accused of killing him or knowing who did – detained, interrogated and tortured – continued harassment of applicant until departure and family since – participation in protests and commemorations in Australia not for sole reason of strengthening claims – detailed, consistent and credible evidence – country information – economic and political conditions – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), 65
Migration Regulation 1994 (Cth), Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
MIMA v Haji Ibrahim (2000) 204 CLR 1
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 Immigration and Border Protection to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 5 December 2012, and the delegate refused to grant the visa on 6 January 2014. He sought review of that decision and the Tribunal (differently constituted) affirmed the Department’s decision on 28 January 2016. Following an appeal from the Federal Circuit Court of Australia (FCCA)[1] where the first Tribunal’s decision was upheld, the FCCA matter was remitted to the Tribunal for reconsideration by orders of the Federal Court of Australia (FCA) on 27 February 2018.[2]
[1] AJQ16 v Minister for Immigration and Border Protection [2017] FCCA 661.
[2] AJQ16 v Minister for Immigration and Border Protection [2018] FCA 244.
The applicant appeared before the Tribunal on 6 April 2022 where he gave evidence and presented arguments about the issues in his case. The Tribunal also received oral evidence from a Member of Parliament (MP) in Sri Lanka, [Mr A], over the telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
The issue in this review is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the relevant law and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Sri Lanka there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and, generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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 a protection 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 the applicant 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’).
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The most recent country information report on Sri Lanka was published by DFAT on 23 December 2021.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevant background (including nationality findings)
The applicant is a [Age]-year-old Tamil man originally from [Town 1], [City 1], in northern Sri Lanka. He is also Catholic. He worked as a fisherman in Sri Lanka. He left Sri Lanka (by boat) [in] July 2012, arriving in Australia [in] November 2012 as an unauthorised maritime arrival. The Department’s file contains a photocopy of the biodata page of his Sri Lankan passport and the applicant claims he is a national of Sri Lanka. The delegate and first Tribunal accepted that was the case. The Tribunal is satisfied the applicant is a national of Sri Lanka, against which it has assessed his protection claims.
At hearing the applicant confirmed his parents and [siblings] ([brothers] and [sisters]) have remained living in northern Sri Lanka. He is in regular contact with them. Presently he is single, lives with friends in Melbourne and works full time in a [workplace].
Claims, evidence, and findings
In summary, the applicant claims to fear persecution from the Sri Lankan authorities as a young Tamil male from the north, as someone suspected of being involved with the Liberation Tigers of Tamil Eelam (LTTE), and because he is suspected of knowing who was responsible for the murder of his relative – [Mr B] – [Date 1] October 2006, allegedly by the LTTE in [City 1]. He claims to have been subject to detention, interrogation and mistreatment at the hands of the security forces (police and army) investigating [Mr B]’s murder from October 2006 until he left the country in 2012. He claims the authorities have continued to enquire about him with his parents in [City 1].
Before the current Tribunal, the applicant indicated he has been active in Australia protesting against the Sri Lankan government, and attending Tamil commemoration events, which will add to his risk profile on return.
The applicant’s initial claims were set out in a statutory declaration provided to the Department dated 29 November 2012. Material provided to the Department included various identity documents, documents pertaining to the applicant’s education in Sri Lanka and a copy of his marine fishing pass and identity card.
Additionally, the applicant provided documents relating to [Mr B]’s death, including a copy of his death certificate,[3] a post-mortem report and post-mortem examination instructions, and a letter from the police in [Town 2] to the Human Rights Commission office in [City 1] about the matter. The applicant also provided a copy of a letter from the Divisional Secretary, [Town 2], to the Divisional Secretary, [Division], dated 20 September 2012 confirming that ‘[Mr B]’ was shot dead by unknown persons on [Date 1]-10-2006 and that he was [a relative]. At hearing the applicant explained he received these documents from a relative in Sri Lanka, who was also a close relative of [Mr B], when he was in Australia.
[3] Recording the date and place of death as [Date 1] October 2006, [Road], [Town 2], at the age of [Age], due to ‘shock and haemorrhage caused by gun shot injuries to brain’.
The Departmental file also contains copies of what appear to be newspaper articles in Tamil and what looks like information pertaining to a wake or funeral for [Mr B]; however, as they are untranslated, the Tribunal is unsure about what information is contained in them specifically.
The applicant (and his then representative) provided several submissions[4] and documents in support of his protection visa application to the first Tribunal, including medical reports pertaining to his physical and mental health at that time.[5] The submission refers to country information contained in DFAT’s country information report on Sri Lanka in place at the time, now superseded (several times[6]), as well as from other sources.
[4] Dated 6 February 2014, 19 March 2015 and 30 March 2015.
[5] A letter from [Dr C], [Medical] Practice dated 5 March 2015; a letter from [Dr D], Generalist psychologist dated 23 November 2015; a copy of a prescription for Pristiq (anti-depressant), [City 2], dated 27 March 2015; and handwritten medical reports (and scripts) from Sri Lanka dated 4 September 2010 showing investigations for abdominal pain.
[6] The previous DFAT reports are dated: 4 November 2019, 23 May 2018, 24 January 2017, 18 December 2015, 16 February 2015, 3 October 2014 and 31 July 2013.
Additionally, the applicant provided a letter[7] to the first Tribunal expanding on some aspects of his claims as well as a letter from [Mr A], a Sri Lankan Tamil MP, dated 26 September 2016. These documents appear to have been received after the first Tribunal made its decision, and therefore were not considered by the first Tribunal.
[7] Dated 2 January 2017.
Before the current Tribunal, the applicant’s representative provided a comprehensive written submission[8] setting out the applicant’s background, relevant immigration history, circumstances that led to him leaving Sri Lanka, activities in Australia, and concerns if he has to return there now. Country information about the current situation in Sri Lanka including the unstable political environment, and ongoing poor treatment of Tamils is referenced, which the Tribunal has considered in making its assessment about whether the applicant’s fears on return to Sri Lanka are well founded.
[8] Dated 6 April 2022.
Other material provided to the current Tribunal in support of the applicant’s claims included:
·A copy of a letter from the applicant’s parish priest at [a] church in [City 1] dated 21 January 2021, on the church’s letterhead. In it the priest states that he was aware of the applicant’s arrest and torture by the security forces on suspicion of shooting a villager by the name of ‘[Mr B]’ by unidentified gunmen in October 2006 in [Town 2]. This became an opportunity for the security forces to harass the applicant and his family for information about any suspicious activity in the area, states the priest, which did not stop with the end of the war and intensified in the early years that followed.
·A copy of a translated letter from the applicant’s mother to her village head about a visit by police to her home, dated 11 January 2022. In it she states, among other things, that a policeman (whose police identity number she lists) came to her house and: asked whether her son (the applicant) was travelling with ‘[Mr B]’ in his [vehicle] when he was shot dead by the Liberation Tigers on [Date 1] October 2006; accused the applicant of taking part in a protest against the Sri Lankan government and supporting the Tigers (in Australia); questioned her in a threatening manner; and showed a photograph of the applicant taking part in a Tigers Heroes Day event (in Australia). The police officer also told the applicant’s mother to tell the police immediately if the applicant returns to Sri Lanka.
·A letter from clinical psychologist, [Ms E], dated 25 May 2021 whose description about what the applicant had told her of his experiences in Sri Lanka (and since) were generally consistent with his evidence to the Department, and the previous and current Tribunal.
·A further letter from [Mr A], MP, dated 15 January 2021.
In his oral evidence to the current Tribunal the applicant described his background, reasons for leaving Sri Lanka in 2012, activities in Australia, and fears if he has to return to his home country. The Tribunal found him a credible witness: he was clear, detailed and did not try to embellish his evidence if he did not know an answer to the Tribunal’s questions. Further, he was able to explain some aspects of his evidence the Tribunal had concerns with prior to the hearing. For example, about his visit to [Country 1] for a cousin’s wedding in 2011, at a time he claims to have been under surveillance (and harassment) by the Sri Lankan army (SLA). He said he had to seek the SLA’s permission to travel to [Country 1] and signed a document promising to return. SLA members threatened him, telling him that if he did not return to Sri Lanka after the wedding, they would harm his mother. The Tribunal accepts this explanation as plausible, particularly given that overall it found him to be a credible witness.
Furthermore, the applicant’s account of his sustained harassment and mistreatment at the hands of the SLA from shortly after [Mr B]’s murder in October 2006 until he left the country in 2012 accounts with country information indicating ill-treatment of Tamils in the pre and post war period in Sri Lanka. For instance, in DFAT’s most recent country information report on Sri Lanka, published in December 2021, reference is made to the findings by the Office of the UN High Commissioner for Human Rights (OHCHR) Investigation on Sri Lanka (OISL), released in September 2015, that government and LTTE forces likely committed grave violations, possibly amounting to war crimes and crimes against humanity, between 2002 and 2011.[9]
[9] DFAT Country Information Report, Sri Lanka, 23 December 2021 at 2.34.
The Tribunal notes the fact the applicant was not actually charged by the police for [Mr B]’s murder during this period (2006 to 2012) caused the delegate some concern. However, given country information indicates the authorities regularly harassed Tamils during this period, including in the immediate aftermath of the war (as noted above) – in particular young Tamil males in the north – for various reasons, including to try and intimidate them and extract information from them about local actors, the Tribunal does not share this concern.
At hearing when discussing who was responsible for [Mr B]’s murder, the applicant said it was the LTTE (allegedly), after they found out he had been working with the [Party] – a Tamil party with close links to the SLA at the time. He produced a copy of an article translated from Tamil to English, published online[10] on [Date 2] October 2006, which states that the ‘Ellalan Army’ claimed responsibility for the shooting of ‘[Mr B]’ in [Town 2] the day prior, because he was ‘involved in anti-social activities together with the Sri Lankan Army and its paramilitary group [Party]’. The applicant said he had not provided the article before (to the Department or first Tribunal) because he only recently discovered its existence through his uncle in [Country 2], who had kept a copy. At hearing, in response to the Tribunal’s concerns about the LTTE so explicitly claiming responsibility for [Mr B]’s murder as indicated in that article, the representative said this was not uncommon, and may have been part of their strategy. The Tribunal has some concerns about the veracity of this document given this and the fact it has only been recently discovered (and submitted). Nonetheless, as it found the applicant a credible witness overall, it is willing to accept his evidence about how he obtained the article and why it was a late submission.
[10] At eelampage.com.
The Tribunal notes that in their decision record, the delegate commented on the applicant’s lack of knowledge of [Mr B]’s involvement with the [Party], which caused them to doubt his claims in this respect. The Tribunal does not necessarily find it surprising that the applicant was not aware about [Mr B]’s supposed links with the [Party], given the dangers in doing so, as evidenced by his unfortunate murder allegedly at the hands of the LTTE in October 2006.
The Tribunal found the oral and written evidence of [Mr A] – a Tamil politician and member of the [Political party] on the [Electoral district] electoral list[11] in Sri Lanka – credible and compelling. He corroborated the applicant’s core claims about what happened to [Mr B] and the applicant’s mistreatment at the hands of the SLA thereafter.
[11] >
[Mr A] told the Tribunal he had known the applicant and his family for a long time, before he was an MP, as they are from [Town 2] and part of the same church community. He was aware of the reason why the applicant had fled the country – due to the murder of [Mr B], after he had dropped the applicant off in his [vehicle] in October 2006 – and that afterwards the authorities had questioned him many times, including after the end of the war under the pretext of the Prevention of Terrorism Act (PTA) wherein many Tamils were targeted, arrested, harassed and punished. [Mr A] added that the harassment and mistreatment of Tamils in some respects continues to this day and given the applicant’s circumstances, he considered it likely he will be detained under the PTA if he returns to Sri Lanka, and subject to arbitrary arrest and imprisonment.
[Mr A] confirmed the authorities have continued to enquire about the applicant after he left Sri Lanka, as told to him by his mother who he met at a church festival in [City 1] recently. [Mr A] also spoke of the extant risk to the applicant as a Tamil suspected of murder (and involved in diaspora activities in Australia) from the authorities if he returns to Sri Lanka, discussed in more detail below when considering if the applicant’s fears on return to Sri Lanka in the reasonably foreseeable future are well founded.
Based on the evidence before it and for these reasons, the Tribunal accepts the applicant’s claims (articulated at hearing and in the material provided to the current and previous Tribunal, and Department) about his past experiences and profile in Sri Lanka, summarised as follows.
·In Sri Lanka the applicant lived with his parents and siblings in [City 1] and worked as a fisherman, as did his father and [brothers].
·On [Date 1] October 2006 the applicant’s [relative], [Mr B], who was [an Occupation], drove the applicant to [Town 3] (near [Town 2], [City 1] district). [Mr B] was shot and killed shortly after. When told of the murder by his brother, the applicant went to the scene. He saw police and army officers there but did not tell them he had seen [Mr B] earlier that day, fearful he would be implicated in his murder, as a Tamil.
·Not long after – on [Date 3] October 2006 – the applicant was taken to an army camp for questioning about [Mr B]’s murder. There an SLA officer held a gun to his head, and he was questioned and told to confess to the murder. The second time this occurred was [in] November 2006 and thereafter every two or three months until just before he left the country in July 2012. The last time – [in] June 2012 – he was questioned by new officers who were particularly brutal and threatening, making him fear for his life and leading to his decision to flee the country.
·The applicant was tortured, beaten and threatened many times when detained and questioned at the army camp during this period. He was questioned about the murder, who was behind it and more broadly about LTTE activities in the area. He was also accused of [Mr B]’s murder, although the applicant was never charged. Subsequently it came out that the LTTE were responsible for [Mr B]’s death, due to his suspected links to the [Party].
·The applicant is unsure if anyone was actually charged (and convicted) in relation to [Mr B]’s murder.

The applicant claims that since he left Sri Lanka the authorities have regularly visited his parents’ house in [City 1], asking for his whereabouts. The last time this happened was on 7 January 2022 when a police officer visited his parents’ home and spoke to his mother, details of which were set out in a letter from his mother to the village head, as described earlier. The police officer asked about the applicant’s whereabouts, noted he was a suspect in relation to [Mr B]’s murder, and showed photographs of the applicant at demonstrations and commemorative events in Australia. The police officer told the applicant’s mother to advise them when he returns to Sri Lanka.
As evidence of the visit by police to his parents’ house in [City 1] in January this year the applicant provided a copy of the letter his mother sent to the village head following the police officer’s visit, as noted. Additionally, at hearing he showed video footage on his mobile phone of the incident, allegedly taken by his brother discreetly through a window from inside their house. The Member viewed the video, aided by the interpreter, which appeared to have been filmed on 7 January 2022. It shows a police officer asking a woman (purportedly the applicant’s mother) about the applicant’s whereabouts, his activities in Australia, and mentioning he was of interest in the past in relation to [Mr B]’s murder. It also shows the police officer producing photographs of what appears to be of the applicant at protests in Australia.
After the hearing the representative provided an English translated transcript of the CCTV and home video recording viewed at hearing, which generally matched what the interpreter said at hearing when viewing the video.
What appears to have transpired during the police visit as recorded in the video (and transcript) was generally consistent with the details of this visit as described in the applicant’s mother’s letter to her village head, and the applicant’s oral evidence about what his mother had told him had occurred. It is also consistent with country information that indicates monitoring of Tamil returnees in the north and east continues, including visits to their home and telephone calls by the CID.[12] Accordingly, the Tribunal accepts the applicant’s claims that police have continued to enquire after him since he left Sri Lanka, most recently on 7 January 2022. It accepts during this visit the police officer asked about the applicant’s involvement in diaspora activities in Australia, showing photographs of his participation at such events, and told his mother to tell the authorities if he returns to Sri Lanka.
[12] DFAT Country Information Report, Sri Lanka, 23 December 2021 at 5.29.
At hearing the applicant gave evidence about his involvement in diaspora activities and events in Australia, as well as his reasons for getting involved in such activities. Specifically, he said since sometime in around 2017 he has attended several anti-Sri Lankan government protests organised by [Organisation], held for example at [a Venue] in Melbourne, most recently [in] May 2021. He also attended a Martyr’s Day (Marvareer Naal) commemoration ceremony in Melbourne [in] November 2021, which is held on that date each year to commemorate LTTE members who have died. (He said that during the event he discovered photographs of [two relatives].) He claimed that these events are attended by members of the Tamil community and the Sri Lankan authorities regard these events as highly suspect. In her written submission, the representative argued that given the number of people who attend such events, it is probable the Sri Lankan government monitors these events actively and cross matches photographs of attendees with those of its own records.
The representative provided to the Tribunal several photographs, including of the applicant at the [May] 2021 protest [at a Venue], [doing something], and of the applicant in front of several photographs of what look like late LTTE members. Also provided was a Tamil Guardian piece titled ‘In Pictures – Thousands commemorate Madera Naal across Australia’, dated 1 December 2021.
At hearing the Tribunal asked the applicant why he become involved in such events in Australia from around 2017 given he had been in Australia since late 2012. He explained that he became involved after moving to Melbourne from Queensland in 2017, where there was a Tamil community (and organisers of such events, such as [Organisation]). He said he also became involved because he was free to do so. At hearing the representative said the applicant’s explanation about why he became involved in these events, and the timing, is entirely plausible. She added that if he had wanted to do so to strengthen his refugee claims, he would have done so beforehand.
Based on his oral evidence describing his involvement in diaspora activities in Australia and his motivations for doing so, as well as photographs provided showing his attendance at these events, the Tribunal accepts the applicant has attended anti-Sri Lankan government protests and Tamil commemorative events in Australia since around 2017. Although he may have several motivations for doing so, the Tribunal is satisfied this included because he wanted to and felt free to do so as claimed, not for the sole reason of strengthening his refugee claims. It accepts the Sri Lankan authorities have come to know about his involvement in such activities in Australia and the police asked his mother about it during a visit to the family home in [City 1], Sri Lanka, in January this year. Country information indicates that monitoring of diaspora events by the Sri Lankan authorities continues, particularly since the Rajapaksas came to power.[13]
[13] Immigration and Refugee Board of Canada, ‘Sri Lanka: Situation and treatment of returnees, including failed asylum seekers (2020 – March 2022)’, Research Directorate, 2 May 2022, LKA200988.E.
Well-founded fear of persecution in the future
Given these findings about the applicant’s past experiences and profile, the Tribunal has considered whether the applicant’s fears of persecution on return to Sri Lanka are well founded, taking into account the passage of time and change in the country situation (relevant to his claims), considered below.
It is submitted the applicant faces a well-founded fear of persecution on return to Sri Lanka from the authorities as a Tamil male with an imputed allegiance to the LTTE, who has previously come to the adverse attention of the SLA in relation to the murder of his relative, [Mr B]. He remains of adverse interest to the Sri Lankan authorities, it is argued, due to these past events in Sri Lanka as well as his more recent involvement in protest and commemorative activities in Australia.
In the representative’s submission to the Tribunal, she notes the change of government in Sri Lanka since the delegate and first Tribunal decisions, which has seen a return of the Rajapaksas to power, specifically: Gotabaya, who was the Secretary of Defence during the latter part of the war, as President, and his brother, Mahinda, who was the President at that time, to Prime Minister, until very recently (discussed in more detail below). Other military personnel allegedly involved in war crimes against Tamil civilians have been appointed to senior positions in government and the security forces, causing Tamils (and the applicant) concern. Additionally, the COVID-19 crisis has been used to impose authoritarian measures in Sri Lanka, which impact particularly harshly on Tamils, she submits. Reference is made to relevant country information from a variety of sources to support her contentions in this regard. She also refers to reports about the ongoing mistreatment (including human rights abuses) of Tamils who assert their rights, and continued impunity of perpetrators in Sri Lanka.
The representative also notes that DFAT’s 4 November 2019 country information report on Sri Lanka (now superseded) was extensively criticised and rejected by three judges of the United Kingdom Upper Tribunal (Immigration and Asylum) in the decision KK and RS v Secretary of State for the Home Department[14] (KK and RS) because it contained factual inaccuracies and unreliable sources. She submits the most recent DFAT country information report on Sri Lanka published on 23 December 2021 should be approached with similar caution, and that other sources clearly demonstrate that violence, abduction and murder are still being perpetrated against Tamils at all levels of society in Sri Lanka.
[14] In particular, paragraphs 185-187 (provided to the Tribunal by the representative as an attachment to her submission).
Further it is submitted that the applicant’s fears are not fanciful in light of recent reports[15] of Tamils from the north of Sri Lanka being interrogated and threatened by the military, as they are considered part of a conspiracy to revive the LTTE. The representative submits that fear of being subject to interrogation and torture is in itself oppressive, and a single act of oppression may suffice, referring to the following case law: Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1 at 34 and Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 430.
[15] For example: The Guardian, ‘Tamils fear prison and Torture in Sri Lanka, 13 years after civil war ended’, 27 March 2022.
In his oral evidence to the Tribunal, [Mr A], a sitting MP for northern Sri Lanka, said he considers if the applicant returns to Sri Lanka he is at risk of being detained and arrested under the PTA because of his past matters, and because of his involvement in diaspora activities, such as Heroes Day. That is because people who normally attend these events – if there is evidence of such, for example, photographs – may be arrested on return and face difficulties. [Mr A] added that he believes the future would be bleak for people like the applicant on return to Sri Lanka, where they could face a denial of all forms of basic rights. He noted that more broadly the situation for Tamils in Sri Lanka is poor, with traditional Tamil lands being taken and given to Sinhalese, and Hindu places of worship being removed and/or destroyed and Buddhist statues installed.
The Tribunal has considered the applicant’s (and his representative’s) submissions on this matter, the evidence of [Mr A], as well as independent country information (below) about the situation in Sri Lanka for someone with the applicant’s past experiences and profile, to determine if his fears on return to Sri Lanka from the authorities based on his (imputed and/or real) anti-government/pro-LTTE political opinion in the foreseeable future are well founded.
Sri Lanka’s long standing civil war ended in May 2009 and the security situation, particularly in the north and east, improved significantly. When the Sirisena government took power in 2015 there were further improvements with DFAT reporting in its November 2019 country information report that the monitoring and harassment of Tamils in day-to-day life had decreased significantly under the Sirisena government, among other things. In that report DFAT also assessed that the LTTE was a spent force and Tamils with links to the LTTE were generally able to lead their lives without concern for their security as a result of their past association with the LTTE.[16]
[16] DFAT Country Information Report, Sri Lanka 4 November 2019 at 3.77.
However, there have been notable changes to the power base in Sri Lanka since, with the election of Gotabaya Rajapaksa – the Defence Minister during the last phases of the war when his brother, Mahinda Rajapaksa, was president – as the country’s president in November 2019, and Mahinda as Prime Minister, in late 2020. Under Gotabaya’s rule several other Rajapaksa relatives became cabinet ministers, up until very recently (discussed further below); this resulted in fundamental changes to policies on ethnic relations, among other things.
Shortly after Rajapaksa’s party – the Sri Lanka Podujana Peramuna – won a two thirds majority in Parliament, on 20 October 2020, the 20th amendment to the constitution was endorsed by parliament, which dismantled pro-transparency and accountability reforms in the 19th amendment (measures introduced by the previous, Sirisena government), and enhanced executive control over the legislature and judiciary. DFAT, in its latest report on Sri Lanka, notes that concerns have been raised about the amendment fundamentally eroding the independence of key commissions and institutions in Sri Lanka as a consequence.[17]
[17] DFAT Country Information Report, Sri Lanka, 23 December 2021 at 2.31.
In February 2021, in commentary about the return of the Rajapaksas, Alan Keenan, Senior Consultant from the International Crisis Group (ICG), Sri Lanka stated that Sri Lanka was firmly in the hands of its most nationalist and militarist elements. He notes that their commitment to authoritarian, militarised governance and to the political and cultural supremacy of the Sinhala and Buddhist majority pose a growing threat to Sri Lanka’s battered democratic institutions and to its political stability. Furthermore, he states that the militarisation of government administration had led to an increase in state surveillance and harassment of civil society activists, particularly in Tamil-majority districts, and the government’s Sinhala nationalistic rhetoric and discriminatory polices was also leading to a dangerous rise in religious and ethnic tensions. Mr Keenan states further that:
Meanwhile, long-running tensions between the Sinhala-dominated state and security forces and the Tamil ethnic minority continue to simmer. Although a return to violent militancy or terrorism appears unlikely, particularly in view of the state’s massive military presence in Tamil-majority districts of the north and east, animosity runs deep. Suffering from decades of political marginalisation and inequitable economic development, Tamils in the north east fear a slow but steady erosion of their cultural and demographic status in the region. With the military playing a direct role in district administration, and nationalist Buddhist practices given official state sanction, Tamils, like Muslims, are increasingly worried about further land seizures for military bases or Buddhist shrines and temples. Surveillance is tight and intimidation of political activists by police and military has increased. Small acts of resistance could easily turn violent and offer an excuse for the military to crack down and further entrench its power.[18]
[18] Alan Keenan, Senior Consultant, Sri Lanka, International Crisis Group, Commentary/Asia, ‘Sri Lanka: Prevention Should be at Heart of New Human Rights Council Resolution’, 25 February 2021.
In an oral update about the human rights situation in Sri Lanka by Michelle Bachelet, the United Nations High Commissioner for Human Rights on 13 September 2021, she observed the following concerns (among others) about the heavily militarised and authoritarian situation in Sri Lanka under the Rajapaksas:
The current social, economic and governance challenges faced by Sri Lanka indicate the corrosive impact that militarisation and the lack of accountability continue to have on fundamental rights, civic space, democratic institutions, social cohesion and sustainable development.
…
Regrettably, surveillance, intimidation and judicial harassment of human rights defenders, journalists and families of the disappeared has not only continued, but has broadened to a wider spectrum of students, academics, medical professionals and religious leaders critical of government policies. Several peaceful protests and commemorations have been met with excessive use of force and the arrest or detention of demonstrators in quarantine centres.[19]
[19] 48^th session of the Human Rights Council, Statement by Michelle Bachelet, UN High Commissioner for Human Rights, United Nations Human Rights Office of the High Commissioner, ‘Oral Update on the human rights situation in Sri Lanka’, 13 September 2021.
In its most recent country information report on Sri Lanka, published in December 2021, DFAT voices concerns about the Rajapaksa family’s consolidation of control over the machinery of government in Sri Lanka, stating that:
The family’s return to government has seen greater centralisation of power in the executive branch and the increased militarisation of civilian government (such as the filling of civilian positions with former military officers). Some observers have called these measures ‘democratic backsliding’; the weakening of institutions that provide democratic accountability.
Prime Minister Mahinda Rajapaksa’s earlier 10-year presidency (2005-2015) was also marked by allegations of democratic backsliding and accusations of corruption and human rights violations, including alleged war crimes against the Tamils, and harassment, arrest, and disappearance of government critics. The current government of Gotabaya Rajapaksa has sought to retain popularity within the majority Sinhalese community by highlighting their role in the defeat of the LTTE and by promoting strong state security, particularly following the 2019 Easter Sunday terrorist attacks. Local sources, Tamil and non-Tamil, told DFAT that the human rights improvements achieved under the government of Maithripala Sirisena (2015-2019), including in relation to freedom of expression, are now being reversed. Such sources regard the increasing militarisation of the civilian government, the 20^th Amendment’s centralisation of power in the hands of the executive, and the increasing use of the Prevention of Terrorism Act and other means to silence critics, as vindication of their fears. Presidential elections are next scheduled to be held in 2024. In July 2021, President Rajapaksa stated his intention to run for a second term in office.[20]
[20]DFAT Country Information Report, Sri Lanka, 23 December 2021 at 2.32 and 2.33.
In a December 2021 report about the growing hostility towards Muslims in Sri Lanka, the International Crisis Group (ICG) states that the Rajapaksa family’s return to government put an end to tentative efforts to address the legacy of war and brought in more centralised, militarised government, anchored in Sinhala ‘majoritorism’. It states, among other things, that Sri Lanka’s long standing ethno-religious tensions continue to linger, and the presence of hard-line Sinhala nationalists in power rules out any accommodation of Tamil political claims.[21]
[21] Alan Keenan, Senior Consultant, Sri Lanka, International Crisis Group, ‘”One Country, One Law”: The Sri Lankan State’s hostility toward Muslims Grows Deeper’, 23 December 2021.
DFAT reports that whilst military involvement in civilian life has decreased overall since the end of the war, the military maintains a significant presence in the north, and that military involvement in some civilian activities, particularly the economy, continues in the Northern Province.[22]
[22] Ibid at 2.55.
Furthermore, as noted, there are reports that indicate that the monitoring, surveillance and questioning of Tamils in north east Sri Lanka continues. For example, DFAT states that:
Members of Tamil community and NGOs report that authorities continue to monitor public gatherings and protest in the north and east, and practise targeted surveillance and questioning of individuals and groups. Security forces are most likely to monitor people associated with politically sensitive issues, including those related to the war, such as missing persons, land release and memorialisation events.[23]
[23] Ibid at 3.9.
Communities in the north and east, according to DFAT, report that monitoring is undertaken by intelligence and the Police Criminal Investigation Department, though in many cases officers dress in plain clothes and do not identify themselves. According to local sources, those participating in public gatherings and protests are often photographed.[24]
[24] Ibid at 3.10.

DFAT also reports that Tamils have been arrested in 2021 under the PTA for commemoration of the war.[25]
[25] Ibid at 3.12 and 4.20.
Overall DFAT assesses:
…that surveillance of Tamils in the north and east continues, with particular surveillance of those associated with politically sensitive issues. DFAT also assesses that physical violence against those being monitored is not common, and that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment[26].
[26] Ibid at 3.13.
With respect to treatment of those suspected of former LTTE links, DFAT states that while the LTTE was comprehensively defeated, the authorities remain concerned over its potential re-emergence, and about separatist tendencies in general. According to DFAT:
…sources report that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members, supporters, and other separatists, including ‘stop’ and ‘watch’ electronic databases. DFAT understands these databases remain active. ‘Stop’ lists include names of those individuals who have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals whom the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities.[27]
[27] Ibid at 3.41.
According to DFAT, the International Truth and Justice Project (ITJP), an NGO which documents torture and sexual violence by the security forces in Sri Lanka, claims that, while ex-LTTE cadres exist, they are no longer affiliated in any way with an extant LTTE, and are subject to harassment and discrimination by the Government. Additionally, the ITJP states that the Sri Lankan Government may not accept that the LTTE is finished, arresting several Tamils in 2021 under the PTA for alleged LTTE-supportive behaviour.[28]
[28] Ibid at 3.44.
Additionally, the ITJP reports: that some Tamils with actual or imputed LTTE links (including those who fought for the LTTE or were part of its civilian administration) continue to report police monitoring and harassment; that multiple sources in the north told DFAT that former LTTE members, including those considered low-profile, are monitored to guard against the LTTE’s re-emergence; and that testimonies provided to the ITJP show that such harassment can include frequent visits by police, visits to family members, threats, and seizure of mobile devices.[29]
[29] Ibid at 3.50.
Overall DFAT assesses that, while they may be monitored, Tamils with former links to the LTTE, and who are not politically active, are generally able to lead their lives without concern for their security as a result of their past association with the LTTE[30].
[30] Ibid at 3.52.
DFAT noted that in its May 2021 decision on the refugee status of Tamil activists in the UK, the UK Upper Tribunal found that the present Government of Sri Lanka was possessed of a ‘determination to prevent any form of resurgent separatism’.[31]
[31] Ibid at 3.44.
With respect to treatment of returnees (and failed asylum seekers), including those who departed Sri Lanka illegally (such as the applicant), DFAT states that on arrival in Colombo, returnees will be presented to Sri Lankan Immigration where they will be interviewed by the Chief Immigration Officer; that depending on the circumstances of their departure from Sri Lanka and their personal history, they may be interviewed by other agencies including CID, Sri Lankan State Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI); and these agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. DFAT reports that those who have departed illegally will be referred to the CID at the airport and charged accordingly under the Immigrants and Emigrants Act (1948) (the I&E Act). Once charged they are taken to the courts at Negombo where they are bailed and released.[32] Whilst penalties can include a fine and prison, DFAT is not aware of a prison sentence being given to anyone for illegal departure by itself.[33]
[32] Ibid at 5.17.
[33] Ibid at 5.21.
For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.[34]
[34] Ibid at 5.20.
With respect to monitoring and treatment of individuals involved with diaspora Tamil groups abroad on their return to Sri Lanka – as in the applicant’s case – DFAT reports that in March 2021, the Sri Lankan Government proscribed a number of Tamil diaspora groups including the Australian Tamil Congress and the Tamil Youth Organisation (Australia), as well as a number of individuals based in Australia, the UK, Germany, Italy, Malaysia, and several other countries.[35]
[35] Ibid at 3.55.
Furthermore, DFAT assesses that Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their security risk profile. The following were identified as of particular interest to the authorities: those who hold leadership positions in Tamil diaspora groups, particularly groups deemed by the Sri Lankan Government to hold radical views; those who were formerly part of the LTTE, particularly in – but not necessarily limited to – high-profile roles; those who are suspected of raising funds for the LTTE during the war; and those who actively advocate for Tamil statehood.[36]
[36] Ibid at 3.57.
In the UK Home Office’s June 2021 Country Policy and Information Note on Tamil separatism in Sri Lanka, reference is made to the country guidance case of KK and RS v Sri Lanka [2021] UKUT 130 (IAC), which held that: ‘GoSL [Government of Sri Lanka] views the Tamil diaspora with a generally adverse mindset, but does not regard the entire cohort as either holding separatist views or being politically active in any meaningful way.’[37]
[37] UK Home Office, Country Policy and Information Note, ‘Sri Lanka: Tamil Separatism’, June 2021 at 2.4.2.
The UK Upper Tribunal in KK and RS, among things, sought to develop the definition of what constitutes a ‘significant role’ in Tamil separatism, noting that the term ‘does not require an individual to show that they have held a formal position in an organisation, are a member of such, or that their activities have been “high profile” or “prominent”’[38].
[38] Ibid at 2.4.6.
In May 2022 the Immigration and Refugee Board of Canada’s Research Directorate produced a research response about the treatment of diaspora and other returnees including failed asylum seekers to Sri Lanka. In it, reference is made to analysis from several sources[39] about the Sri Lankan government proscribing several groups as ‘terrorists’ and naming individuals as terrorist, which includes diaspora groups advocating at the UN Human Rights Council and Tamil activities in the diaspora. It is stated, among other things, that: the government regularly denounces Tamil diaspora organisations as fronts for the LTTE; the government perceives political activities by members of the Tamil diaspora as a primary threat to territorial integrity and national security; and the authorities conflate advocating for Tamil issues with LTTE resurgence and Tamil separatism.[40]
[39] Including from HRW, ICG, ITJP, and academics.
[40] ‘Sri Lanka: Situation and treatment of returnees, including failed asylum seekers (2020 – March 2022)’, Response to research request LKA200988.E, Immigration and Refugee Board of Canada, 2 May 2022 [footnotes omitted].
In the same report by the Research Directorate reference is made to a report from ITJP, which indicates that since Gotabaya was elected president in 2019: a new trend of mapping the extended family members of Tamils has begun; sources indicate that family members of ex-LTTE members living abroad have been questioned on the same days in different parts of Sri Lanka about their relation to people abroad; there has been a concerted surveillance effort within the country and at diaspora events around the world; and there have also been signs of a more sophisticated intelligence operation abroad, including infiltration attempts, spoofing and impersonation and entrapment attempts.[41]
[41] Ibid.
Additionally it is noted that in correspondence with the Research Directorate, a sessional lecturer at a Canadian university (who has conducted field work in Sri Lanka with a focus on conflict prevention and peacebuilding) opined – drawing on research complied by NGOs and the country guidance of the UK Upper Tribunal decision – that returnees involved in Tamil diaspora activism, such as by being a member of a diaspora organisation or attending a protest, and individuals with any association with the LTTE, are ‘at risk of persecution on return to Sri Lanka.’[42]
[42] Ibid.
The Tribunal notes from early May 2022 (after DFAT’s most recent (December 2021) report was published) Sri Lanka has experienced massive anti-government protests, fuelled by an economic crisis, which led to the resignation of Prime Minister Mahinda Rajapaksa and several cabinet ministers. Gotabhaya Rajapaksa has, to date, resisted calls for his resignation as president, attempting instead to form a new government. Some protests turned violent, a state of emergency was called across the country, and Gotabhaya appointed Ranil Wickremesinghe to replace his brother as prime minister. As he struggles to survive politically, Gotabhaya Rajapaksa has promised (among other things) to reverse some of the constitutional changes that gave him more power.[43]
[43] Ian Bremmer, Time, ‘What the Crisis in Sri Lanka Means for the World’, 4 June 2022; Chris Barrett, Sydney Morning Herald, ‘Food shortages, violence, economic ruin: How did things get so bad in Sri Lanka’, 6 June 2022.
Although significant, it remains too early to determine what such a political shift may look like and what it might mean for someone like the applicant, as a Tamil man from the north who has come to the adverse attention of the authorities in the past, and more recently due to his involvement in diaspora activities. Even if Gotabhaya resigns it does not necessarily follow that the changes he brought about, including increased militarisation, centralisation of power (and increased executive power) and erosion of democratic institutions, as well as increased surveillance of Tamils in the north and east and abroad will cease or be substantially wound back soon. Alan Keenan, ICG consultant, in a recent question and answer session about the current political crisis in Sri Lanka, opines that whilst the emergence of a broad based popular movement against autocratic rule in Sri Lanka is for many a welcome change, in a country traditionally divided along ethnic and religious lines, the situation is volatile and how that translates into any real progress remains to be seen, even if Gotabhaya does resign.[44]
[44] Alan Keenan, Senior Consultant, Sri Lanka, International Crisis Group Q&A/Asia, ‘Sri Lanka’s Economic Meltdown Triggers Popular Uprising and Political Turmoil’, 18 April 2022.
In the applicant’s case, the Tribunal accepts he was of adverse interest to the Sri Lankan authorities in the past as a young Tamil male from the north and in relation to the murder of his relative in October 2006. Although the applicant left Sri Lanka 10 years ago (and the war finished in May 2009) the Tribunal accepts the authorities have continued to enquire after him, via his parents in [City 1], as recently as January this year. It also accepts the applicant’s involvement in Tamil diaspora activities in Australia – including LTTE commemoration events – has come to the attention of the authorities in Sri Lanka.
Country information as set out above indicates the Sri Lankan government takes a particular interest in those who are involved in diaspora activities, and those they consider are politically sensitive issues, such as memorialisation events. In the applicant’s case, as he departed Australia illegally, and given his length of time out of the county, it is likely he will come to the immediate attention of the authorities on return. During this questioning, his links to [Mr B]’s murder and more recent involvement in Tamil diaspora events is likely to become known. Even if this does not occur immediately on arrival, given DFAT’s advice that surveillance and monitoring of returnees in the north (where the applicant is from) continues, and that he was of adverse interest to the authorities in [City] and continues to be so (evidenced by the SLA and police continuing to visit his parents and asking about him, the last time in January 2022 when they also showed photographs of him at events in Australia), it is likely the authorities would come to know about, or strongly suspect, his support for Tamil activities, including memorialisation events and anti-Sri Lankan government protests. As noted earlier, DFAT notes that surveillance of Tamils in the north and east continues by the security forces, particularly those associated with politically sensitive issues related to the war, including missing persons, land release and memorial events; and that communities in the north report that monitoring is undertaken by military intelligence and the Police CID.
If detained and questioned about [Mr B]’s murder, and his involvement in diaspora activities (and illegal departure), country information indicates that there remains a real risk of ill treatment or harm requiring international protection, including torture. DFAT reports that the PTA has recently been used against Tamils.[45] Additionally, DFAT assesses that whilst the use of torture has decreased since the end of the war, it is still used, including as a routine tool of policing. It adds that because few reports of torture are verified within Sri Lanka, it is difficult to determine the exact prevalence, but ‘multiple domestic and international sources consider it to be common’. DFAT assesses that those detained by the authorities in Sri Lanka face a moderate risk of torture, especially those who challenge or are perceived to challenge the Government.[46] The Tribunal considers the applicant – as a Tamil from the north who came to the adverse attention of the authorities in the past and more recently due to his involvement in Tamil diaspora activities in Australia – would fall into this category.
[45] DFAT Country Information Report, Sri Lanka, 23 December 2021 at 4.23.
[46] Ibid at 4.17 & 4.18.
Based on the above factors considered cumulatively, taking into account the country information set out above, as well as what the Tribunal accepts of the applicant’s profile and past experiences of serious harm at the hands of the SLA and renewed/recent interest due to his involvement in Tamil diaspora activities, the Tribunal finds that there is a real chance that the applicant would suffer serious harm as contemplated by ss 91R(1)(b) and 91R(2) of the Act at the hands of the authorities on return to Sri Lanka in the reasonably foreseeable future. Further, the Tribunal finds that such serious harm would involve systematic and discriminatory conduct and would be for the essential and significant reason of the applicant’s actual or imputed (anti-government/pro-LTTE) political opinion. Accordingly, the Tribunal finds that the applicant has a well-founded fear of persecution in Sri Lanka for a Convention reason.
The Tribunal finds that the threat which the applicant would face on return to Sri Lanka comes from the authorities themselves. Therefore, the Tribunal finds that state protection from this threat in accordance with international standards would not be available to the applicant in Sri Lanka.
With respect to whether or not the applicant could relocate internally within Sri Lanka to avoid the harm he fears, the Tribunal notes that the perpetrators he fears are the authorities, who exist nationally. Therefore, internal relocation is not an option in the applicant’s case.
For the reasons set out above, the Tribunal finds that the applicant has a well-founded fear of persecution for reason of his actual or imputed political opinion, should he return to Sri Lanka now or in the reasonably foreseeable future.
Given the Tribunal’s findings, the Tribunal has not gone on to consider other aspects of the applicant’s claims and submissions.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Nicole Burns
Member