1809947 (Refugee)

[2020] AATA 3187

1809947 (Refugee) [2020] AATA 3187 (29 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1809947

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Deputy President Jan Redfern

DATE:29 May 2020

PLACE OF DECISION:  Sydney

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 29 May 2020 at 4:19 PM

CATCHWORDS

REFUGEE – Protection (Class XA) (Subclass 866) visa – Sri Lanka - application for protection on the basis of the refugee and complementary protection criterion - applicant claims to fear persecution for reasons of Tamil ethnicity, imputed political opinion and membership of the particular social group – association with LTTE – association with Black Tigers – fear of arrest, interrogation and torture - returning asylum seeker who departed Sri Lanka illegally - consideration of refugee criterion in s 36(2)(a) of the Migration Act 1958 – applicant found to be a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 –decision under review remitted with direction.

LEGISLATION

Migration Act 1958 (CT), ss. 5AAA, 65, 36(2)(a), 36(2)(aa), 36(2)(b), 36(2)(c), 91R, 91R(1), 91R(1)(a), 91R(1)(b), 91R(1)(c), 91R(2), 91S

Migration Regulations 1994 (Cth), Schedule 2

CASES

Applicant A v Minister for Immigration and Ethnic Affairs (1996-97) 190 CLR 225

Chan v MIEA (1989) 169 CLR 379
Chan Yee Kin and Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
SZWAY v Minister for Immigration & Anor [2017] FCCA 1814
SZWAY v Minister for Immigration and Border Protection [2018] FCA 268

1820986 [2020] AATA 973

SECONDARY MATERIALS

Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)

Department of Home Affairs, Procedural Advice Manual 3 (PAM3) ‘Refugee and Humanitarian - Complementary Protection Guidelines’
Department of Home Affairs, Procedural Advice Manual 3 (PAM3) ‘Refugee and Humanitarian - Refugee Law Guidelines’
Department of Home Affairs, Country of Origin Information Services Section, “Situational Update: Sri Lanka – Elections”, 29 November 2019
Department of Foreign Affairs and Trade Country Information Report on Sri Lanka, 4 November 2019
Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on his mission to Sri Lanka, (27 February- 24 March 2017)
Minister for Immigration and Border Protection (Cth), Ministerial Direction No.84 - Consideration of Protection Visa applications, 24 June 2019
Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967).
UK Home Office, Report of a Home Office fact-finding mission to Sri Lanka, 20 January 2020

United Nation High Commissioner for Refugees, Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka, 21 December 2012

STATEMENT OF DECISION AND REASONS

1. 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 (‘the Act’).

2. The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 11 December 2012. The delegate refused to grant the visa on 27 March 2014. The applicant applied to the former Migration and Review Tribunal – Refugee Review Tribunal, which is the predecessor of the Migration and Refugee Division of this Tribunal, for review of the delegate’s decision. In December 2014, a member of the former Tribunal affirmed the decision not to grant the applicant a protection visa.

3. The applicant applied to the Federal Circuit Court of Australia for judicial review of the decision. The application for review was dismissed and the applicant then appealed to the Federal Court of Australia. On appeal, the Tribunal was found to have overlooked important evidence that had been given to the delegate by the applicant. The Federal Court quashed the decision and remitted the matter for reconsideration according to law. [1]

   [1] SZWAY v Minister for Immigration & Anor [2017] FCCA 1814 (Nicholls J); SZWAY v Minister for Immigration and Border Protection [2018] FCA 268 (Allsop CJ).

4. The applicant appeared before the Tribunal on 6 August 2019 to give evidence and present arguments. The 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 who appeared at the scheduled hearing in person. Following the hearing, there were changes to the government of Sri Lanka in November 2019 and the applicant was requested to provide any updated submissions or evidence in support of his claims. On 9 March 2020 the applicant provided additional submissions to support his claims, including further country information about the impact of the change in the government.

5. In summary, the applicant claims Australia has protection obligations to him as a refugee under the Refugee Convention or, in the alternative, the complementary protection grounds set out in the Act. The applicant claims he meets the criteria based on his imputed political opinion and that he falls within a particular social group of people targeted for family association with the Liberation of Tamil Tigers (‘LTTE’). He further claims that there is a real risk he will suffer serious or significant harm if he returns to Sri Lanka.

6. For the following reasons, I find that the applicant is a person in respect of whom Australia has protection obligations and remit the matter for reconsideration the delegate’s decision with the direction that the applicant satisfies s.36(2)(a) of the Act.

   RELEVANT LAW

7. The criteria for a protection visa 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 ss.36(2)(a), (aa), (b), or (c) of the Act. That is, the applicant must be a person in respect of whom Australia has protection obligations either under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or the applicant must be a member of the same family unit as such a person where that person holds a protection visa of the same class. In this case the applicant does not make a claim to be a member of a family unit and makes his claims for protection under the Refugees Convention and, in the alternative, the complementary protection grounds set out in s 36(2)(aa) of the Act.

8. Accordingly, the issues for determination are whether Australia has protection obligations to the applicant on the basis that he is a refugee, namely that he has a well-founded fear of persecution on one or more of the relevant grounds, or, if the applicant is not a refugee, does Australia have protection obligations on the complementary protection grounds.

9. 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).

10. 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.

11. 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’). ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

12. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

13. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Section 499 Ministerial Direction

14. In accordance with Ministerial Direction No.84[2], made under s.499 of the Act, the Tribunal is required to take into account policy guidelines prepared by the Department – Procedural Advice Manual 3 ‘Refugee and humanitarian - ‘Refugee Law Guidelines’ and Procedural Advice Manual 3 - ‘Complementary Protection Guidelines’ 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.

    [2] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84 - Consideration of Protection Visa applications, 24 June 2019.

15. The most recent report from DFAT is the Country Information Report for Sri Lanka dated 4 November 2019. I have considered this report, together with other relevant country information, including country information referred to by the applicant’s representatives. I have also considered the Department guidelines to the extent that these are relevant to the consideration of the decision under review. Generally, these guidelines contain an analysis of the law, examples of how the law has been applied in various jurisdictions and guidelines to decision-makers on how the law is to be applied. There is little by way of policy and the guidelines were of limited assistance in the circumstances. My analysis of the country information and any relevant guidelines is set out later in these reasons.

    BACKGROUND

16. The applicant was born [removed] in the [removed] District, Sri Lanka in [month and year]. He arrived in Australia by boat in July 2012 and was detained as an irregular maritime arrival in Christmas Island IDC. The applicant applied for a Protection visa in December 2012. The visa was refused in March 2014 by a delegate of the Minister.

17. The applicant sought review of this decision and the decision of the delegate was affirmed on 24 December 2014.The applicant’s evidence before the previous Tribunal was to the effect that his brother held a senior role with the Black Tigers, that his family was closely associated with the Black Tigers at the top of the LTTE hierarchy and that the applicant himself was involved in the activities of the LTTE and had undergone training. The previous Tribunal found that the applicant’s claims had “significantly changed” because the applicant did not make these claims in his initial application and as such, “the shift in claims represent[ed]….the applicant’s lack of credibility”. Ultimately, the previous Tribunal did not accept that the applicant had been truthful in his claims.

18. In brief, the Federal Court found the claims made by the applicant about his association with the Black Tigers of the Tamil Tigers through his family connections were claims that were in fact made before the delegate, contrary to the Tribunal’s findings. Relevantly, one of the claims made was that that the death of the applicant’s brother was commemorated as part of an annual function by former Tamil Tigers for [x] Black Tiger families, of which his family was one. According to the Federal Court the Tribunal had overlooked that this important evidence had been given to the delegate by the applicant when questioning the applicant’s credibility.

19. According to his application for protection, the applicant stated that he feared returning to Sri Lanka for the reasons set out in a written statement attached to his application. The written statement dated 3 December 2012 described the applicant’s fears that if he was returned to Sri Lanka he would be arrested and interrogated and possibly killed by the Criminal Investigation Department (‘CID’) because of his LTTE connections and the long and significant involvement of his three brothers, one of whom was a commando who had been killed in [year] and the other two had been had been conscripted to the LTTE and imprisoned for a period by Sri Lankan authorities because of their involvement with the LTTE. According to the applicant he had been interrogated by the CID but was released with reporting conditions on a daily basis for around 5 to 6 months. This was said to have been extended to reporting every three or four days, but he was still on reporting conditions when he left Sri Lanka. The applicant stated that he had wanted to leave Sri Lanka since about 2010 for his safety but did not have the opportunity until July 2012 when he was able to board a boat. The applicant left his [family] in Sri Lanka but stated that since this time the CID had visited his house on a number of occasions.

20. In September 2013 the applicant was interviewed by an officer of the Department. At this time the applicant’s representative provided further written information to the Department in support of the applicant’s claims. This information included a photograph and article, which the applicant claimed to be about his brother, who was said to have been an active member of the LTTE holding the rank of [‘senior position’] and known within the LTTE as [senior position] [name removed]. The applicant repeated his claims in the interview with the delegate, including the claim in relation to his deceased brother. The delegate gave little weight to the information about the death of his brother in [year] because the article referred to a person with a different name from the applicant’s brother. In the interview, the applicant told the delegate that he was questioned by the CID about his brother and that he had been shown a photograph of his brother and questioned about his brother’s whereabouts. While the delegate accepted that the applicant’s three brothers were members of the LTTE and that one of his brothers was a member of the Black Tigers who was killed in [year], the delegate did not accept the applicant’s evidence about being interrogated and tortured by the CID. Ultimately, the delegate found the applicant’s evidence to be inconsistent, vague and that certain aspects of his evidence had been embellished to support his claim for protection.

21. The applicant gave evidence before the former Tribunal on 17 December 2014.

22. An extract of the transcript of the hearing, which was provided to the Federal Court on appeal, was provided by the applicant to the Tribunal. In summary, the applicant repeated his evidence about his brothers and, in particular, his evidence about the brother who joined the Black Tigers and was killed. He referred to the fact that he and his family were invited to a commemorative function and gave evidence that his brother was a prominent member of the Black Tigers. Relevant to the ultimate grounds that succeeded on the appeal, it was noted by the Tribunal that the applicant had not previously referred to the commemorative function and had not referred to the fact that his brother was a Black Tiger in his submissions. There was discussion about how the applicant could prove to the Tribunal that the person in the photograph was in fact his brother. The applicant responded to the effect that these details could be confirmed by accessing a particular website. This was not done, nor does it appear that the applicant provided the Tribunal with these details after the hearing. This is relevant because this issue was raised and became particularly important in the hearing before me. The applicant gave evidence that he was interrogated, put on reporting arrangements and that his [family] had been questioned about his whereabouts. Overall, the applicant’s evidence was consistent with the evidence he gave to the delegate.

    OUTLINE OF EVIDENCE AND FINDINGS

23. The applicant provided to the Department information in support of his application including a statutory declaration dated 3 December 2012 together with identity documents and a letter from the applicant’s representative enclosing an article containing a photograph of the applicant’s older brother who he claims was an active member of the LTTE.

24. After the matter was remitted to this Tribunal for reconsideration, the proceedings were reconstituted and scheduled for hearing on 6 August 2019. Prior to the hearing, I conducted a telephone directions hearing and made directions that the applicant provide any further evidence, in particular relating to the allegations he made that the profile of his family was such that he would be exposed to serious or significant harm on his return to Sri Lanka.

25. In accordance with those directions, the applicant provided to the Tribunal:

    (1)An additional statement dated 26 July 2019, which, amongst other things, provided more details about his brother’s involvement in the LTTE, details about his work for an organisation associated with the LTTE and an explanation why this latter information was not previously mentioned;

    (2)A written submission dated 26 July 2019 which included references to country information, some of which was general in nature and did not refer to the source, together with legal submissions about the application of the law to the applicant’s circumstances;

    (3)Four LTTE posters of his deceased brother (including a poster notifying of his brother’s death);

    (4)A link to a LTTE propaganda video said to relate to the applicant’s deceased brother, together with a transcript and translation of the video;

    (5)An employee ID card for the applicant for [former place of employment];

    (6)A research paper headed [details of research paper removed];

    (7)A letter from the Australian Tamil Congress dated 25 July 2019;

    (8)Radiology reports from the [removed] Hospital; and

    (9)A report from the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) being summary of psychological treatment dated 26 July 2019.

1. The report from STARTTS records that the applicant was treated from October 2017 to July 2019. He attended 45 sessions in this period and his treatment was said to comprise counselling. The report was prepared by a social worker and was generally descriptive in nature. It outlined a previous history of a suicidal ideation and a diagnosis of depression and anxiety together with post-traumatic stress disorder. The description of this diagnosis appeared to be a summary of previous tests undertaken. The methodology adopted in relation to these tests, the identity of the person who undertook the tests and whether person was suitably qualified was not detailed in the report. This report therefore carries little weight as an authoritative diagnosis of any psychological condition suffered by the applicant. It does, however, confirm that the applicant has been seeking and obtaining psychological treatment over a sustained period. For the reasons later outlined, this report is not determinative either way. It is merely one piece of evidence that supports the applicant’s claim that he has mental health issues and is depressed. The fact the applicant has mental health issues and is depressed is not of itself significant because there could be several causes for anxiety and depression. The report itself refers to the fact that the applicant feels depression and anxiety about the uncertainty he faces on the outcome of his claims for protection and the fact that he has not had any work since 2015.

2. The report states there is a minor asymmetry of the applicant’s skull which “may reflect cranial synostosis or related to previous trauma”. There was also a scan on the applicant’s left shoulder which recorded numerous metallic foreign bodies consistent with the “given history of shrapnel”.

3. The letter from the Australian Tamil Congress was to the effect that the applicant was referred by the Congress to provide evidence to the [international organisation] in [year] about war crimes the applicant was said to have witnessed during the civil war in Sri Lanka. It was also noted that the applicant was referred by [an international organisation] who visited Australia in [month] [year] to take statements from witnesses as mandated by the [an international organisation].

4. The research paper provided by the applicant’s representative noted that [details contained in research paper removed]. Whether the information contained in the paper is correct is not something the Tribunal is able to determine. However, this research paper discloses that [at the time of its publication], [the former employer] was publicly identified as being associated with the LTTE.

5. The applicant provided details about his work with [former employer] and the evidence that he said he gave to [an international organisation] which was presented to [an international organisation] in his statement of July 2009. The applicant also stated that he spoke with delegates from the [international organisation] in Sydney.

6. According to the applicant’s statement dated 26 July 2019, the additional statement was to “clarify misconceptions that arose from his previous application” as well as provide “additional information” in support of the review. The need for an additional statement was raised by the applicant’s representative at the directions hearing.

7. The statement provided additional details about the applicant’s family and his three brothers. According to the applicant, two of his brothers who served with the LTTE were imprisoned after the Civil War. One of his brothers was imprisoned for around two years and his other brother was imprisoned for around eight months. They were taken into rehabilitation but were subsequently able to leave Sri Lanka. One brother lives in [country] and the other in [country]. According to the applicant he no longer has any contact with them. His other brother joined the LTTE in [year] and served as a Black Tiger under the name [senior position] [name removed]. The applicant noted that details of his brother could be found on the Internet. The applicant provided the relevant website details. According to the applicant’s statement, following the death of his brother he was actively involved in Black Tiger celebrations.

8. The applicant also stated that he began working with [former employer] in about 2003 as a [position]. His role was to supply medicine to LTTE hospitals, and he became injured during a shell attack in 2006. After he recuperated, he continued his work as a [position] for the [former employer]. According to the applicant, this was not new information as it was included in his application for protection. It was also noted in the applicant’s first statement that he had been working as a [position] with a non-government organisation when he was hit by shrapnel shelling in 2006. What was not included in the original application statement was the applicant’s evidence that the [former employer] was associated with the LTTE.

9. After the war ended, the applicant stated that he re-joined his [family] and they spent time in a camp for internally displaced persons. The applicant, [and his family] were released to their native town but after he was released, the applicant states that he was visited by the CID on several occasions. They questioned him about his association with the LTTE. He was initially accused of being his brother. The applicant denied this, and he was later released but told to report every day. This gradually reduced to a few times a week. In [month] 2012, the applicant states that he was questioned by the CID about a list of people who were said to be on their watchlist. The CID also stated that the applicant was on the watchlist. Because the applicant felt intimidated and unsafe, when he saw an opportunity to leave Sri Lanka illegally by boat in July 2012 he did so.

10. According to the applicant, since departing Sri Lanka [removed] has told him that the CID had visited their house on numerous occasions and have taken identity documents. The applicant believes that the CID will question and arrest him on his return.

11. At the hearing the applicant gave evidence about his family, his living arrangements with his [family], the role of his brothers with the LTTE and his questioning by the CID. This evidence was generally consistent with the evidence the applicant had previously given to the delegate and in his first statement to the previous Tribunal. The following is a brief outline of the key aspects of that evidence.

12. The applicant gave evidence about his brother who he said was a [senior position] in the LTTE and died in [year]. At the annual function in memory of the applicant’s older brother held in [year], the applicant met a LTTE member who offered him a position to work at [former employer], the applicant accepted this offer as it paid more than his former position. At the hearing the applicant was asked why he did not mention that the [former employer] was associated with LTTE, the applicant stated that he did not think it was relevant as the lawyer who assisted him with his statement asked him about his brothers’ involvement with the LTTE.

13. According to the applicant, in late 2010 the CID came to his house and questioned him about whether he was a member of the LTTE. They showed him a photo of his brother asking if it was him, the applicant told the CID that they had mistaken his identity. The applicant was taken to a camp by the CID and tortured and beaten, the CID took the applicant’s shirt and beat him with their fists. The CID questioned the applicant about his scars asking if he was a member of the Tamil Tigers the applicant told the CID that he was not a member, however, he told them his older brother had been as were his two [removed] brothers who were being held in detention. He was released from the camp that night.

14. The applicant said he was requested to report to the CID the following day and was asked by the CID officer to inform the CID if he saw anyone involved in the LTTE. He was also asked to report to the CID again the next day. The applicant returned to the CID the next day where he had to sign his name in a book and was asked to continue to report to the CID every day for the next 2 to 3 months. On one occasion the applicant informed the CID that he was unable to report daily as he had a family and a job and was unable to spend 3 to 4 hours of his day reporting to CID. The CID officer agreed that the applicant could report twice a week. The applicant continued to report twice a week until he departed Sri Lanka.

15. In [month] 2012, CID officers went to the applicant’s house and showed him a list of names of [X] people who they were monitoring. The applicant claimed that he knew two people on the list of names and one of those people had been abducted. The applicant’s name was on the list, and according to the applicant was told if something happened, he would be sent back to prison.

16. After this incident the applicant said that he decided he would leave Sri Lanka if he could, the applicant was afraid the CID would keep coming to question him. The applicant went to the authorities to apply for a passport to leave the country. His request was denied. As the applicant had attempted to apply for a passport, he feared the authorities would do something to him. The applicant became aware that people were travelling to Australia by boat and used the money his family overseas were going to use to sponsor him to pay for his trip to travel by boat to Australia. The applicant paid AUD 15 000 and on a [day] in July 2012, left his family and left for Australia by boat [removed].

17. The applicant gave evidence that he did not have any contact with his family when he first arrived in Australia while he was in the detention centre. The applicant claims he talks to his [family] once a week on [removed] and that his [family] lives in fear. He gave evidence that in approximately [year] his family was questioned about his whereabouts and his family’s registration details were taken by the authorities. In [year] or [year] a CID officer questioned and threatened the applicant’s [family] because the applicant had breached his conditions, the officer confiscated the applicant’s national identity card. The applicant said that [removed] said that [removed] was not in contact with the applicant. The applicant said that after this, the CID did not have further contact with his [family].

18. According to the applicant, his brothers left Sri Lanka in 2015. One brother travelled by plane to [country] with the assistance of an agent and the other brother illegally travelled to [country] by boat.

19. The applicant said that he was concerned that if he returned, he would be questioned by the CID because he believes they would still have his name on a list and that they would arrest him on his return. He was also concerned that the CID would know about the evidence that he gave to the [international organisations]. He also said that he would be concerned about speaking out and would be careful about this because he believes that he would be targeted.

20. Prior to the hearing, the applicant’s representative provided a document said to be a translation of a promotional video for the Tamil Tigers about [senior position] [name removed] and his “[removed]”. The video was nearly 5 and a half minutes in duration and, according to the transcript of the video, it is claimed that [senior position] [name removed], who was born as [name removed], became known as [removed] due to his “[removed]”. The video goes on to recount his involvement in the operations of the Black Tigers and the fact that he “sacrificed” his life [removed]. At the time of the hearing the video link could not be accessed as access was blocked. At the hearing, the applicant said that he accessed the video in [year] on YouTube. The date of the translation was 20 February 2019. The document provided was a transcript in both Tamil and English by reference to the video. The certification by the translator, who was NAATI accredited and sets out his accreditation number on the translation, records that “the foregoing is a true and accurate description and translation of a Tamil video file produced to me electronically”. I did not seek to take evidence from the translator about the video and accept the existence of the promotional video about [senior position] [name removed], who is said to be the applicant’s brother. The fact that there was a reference on the internet to the video link even though access was blocked supported the existence of the video. I also accept that the document provided is an accurate transcription and translation of the video.

21. During the course of the hearing, the Tribunal requested whether the applicant could provide access to the website referred to in his previous evidence that was said to identify [senior position] [name removed] as his brother, [name removed]. This was done during the hearing and translated by the interpreter into English. The name and date of birth of [senior position] [name removed] found on the website was consistent with the details provided by the applicant for his [remove] brother in his application for protection. It was noted that [senior position] [name removed] died as a martyr. This information was also consistent with other information on the Internet dated [removed] which was accessed as recently as just prior to the publication of this decision. The article is headed ‘[removed].[3]

    [3] [reference removed]

22. I accept the applicant’s evidence about his claims for the following reasons.

23. The claim that the applicant was the brother of a high-profile Tamil Tiger who was identified as a martyr is corroborated by independent information provided by the applicant [removed]. Whether the applicant’s brother died in the way outlined in the promotional videos is not the critical issue. The issue is whether he was identified as a high-profile Black Tiger and therefore a dissident and whether the applicant could also be imputed as a supporter or dissident by reason of his association with his older brother and his two [removed] brothers who were also members of the LTTE. The applicant’s [removed] brother was not only a Tamil Tiger, but he was a Black Tiger who was identified and was well known [removed].

24. While a considerable period passed between the time of his brothers death and the end of the war and the claimed questioning of the applicant by the CID, it is consistent with country information that after the war the CID was concerned that identified any LTTE members or former members and either ensure they were rehabilitated or brought to justice. It is therefore consistent with the applicant’s claims that he was questioned by the CID after the war for an extended period. It is also consistent with country information that he may have been beaten during those interrogations at that time. My findings in relation to the relevant country information about Sri Lanka is set out in more detail below.

25. I also accept that the applicant worked for [former employer] during the war and that there is evidence to support that the claim the [former employer] was associated with the LTTE. This latter claim is new but the fact that the applicant worked for the [former employer] is not. I accept the applicant’s explanation about why he did not mention this in his previous evidence in support of his application. The applicant says that he was not specifically asked about this and it may be that he had not appreciated the significance of this at the time that he made his original statement. In any event, the information that suggests [the former employer] was associated with the LTTE is not new information and there is probative evidence this was publicly known, or at least the subject of speculation, from [year].

26. I accept the applicant’s evidence that he was initially asked to report to the CID on a daily basis, that he was questioned about the identity of others and that he was so fearful that he decided to leave Sri Lanka illegally[removed].

27. I further accept the applicant’s evidence that he provided statements to [international organisations] in [year]. The applicant’s evidence in this regard was consistent, plausible and independently corroborated by a letter from the Australian Tamil Congress. There is no evidence about whether the applicant’s statements were used or made publicly available, although I accept that the applicant is concerned about this.

28. The applicant’s evidence that [removed] was questioned about his whereabouts as late as [year] is also plausible. The applicant did not attempt to embellish this evidence and that he frankly agreed that she had not been contacted after this time. When questioned about his return to Sri Lanka, there was a submission made that the applicant would be outspoken but on questioning the applicant said that he would not be outspoken and that he was too fearful which could be considered as evidence that was a concession made by him which was against his interests.

29. Overall, I accept the applicant’s evidence, which was given in a responsive and cooperative manner. When asked for detail, this was provided. The applicant did not appear to embellish or exaggerate his evidence and when he did not know the answer, he provided frank evidence to this effect or made it clear when he was speculating about a matter. I cannot test the applicant’s evidence about the CID questioning of [removed] to verify his claims. The applicant’s [family] lives in a country area, communications are likely to be difficult and it is almost impossible for the Tribunal to verify the identity of the person to whom they are speaking in such circumstances. It is also difficult for the Tribunal to verify one way or the other whether the applicant is on a watch list and whether he is of interest to Sri Lankan authorities. Given the applicant’s circumstances and my analysis of the country information below, I am prepared to accept that this is a possibility.

    RELEVANT COUNTRY INFORMATION

30. There are several authoritative reports on Sri Lanka to which I have had regard, including the following:

    ·The DFAT country information report for Sri Lanka dated 4 November 2019;

    ·The Eligibility guidelines for assessing the international protection needs of asylum- seekers from Sri Lanka dated 21 December 2012 published by the United Nation’s High Commissioner for Refugees (UNHCR);

    ·Sri Lanka Situational Update: elections dated 29 November 2019 from the Country of Origin Information Services Section (COISS), Department of Home Affairs;

    ·The Report of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment on his mission to Sri Lanka in the period 29 April to 7 May 2016 dated December 2016; and

    ·Report of the UK Home Office fact-finding mission to Sri Lanka dated 20 January 2020.

31. The applicant provided references various reports and publications about Sri Lanka including, Amnesty International Report dated 7 October 2014, Freedom House report dated 19 June 2015, the US Department of State report published April 2016, the previous DFAT report dated May 2018 and the UK Home Office guidance on Tamil Separatism in Sri Lanka. The applicant’s representative also provided references to several media reports.

32. After the hearing a new country information report in relation to Sri Lanka was published by DFAT, being the report published on 4 November 2019 referred to above. In addition, on 16 November 2019 Gotabaya Rajapaksa was elected as President of Sri Lanka. Following these elections, concerns were raised by human rights groups about whether there would be a return of persecution of Tamils because the Rajapaksa family had been in power during the Civil War and the new President’s brother led the Sri Lankan government that had defeated the LTTE and the Tamil Tigers in 2009. There was also a further report in relation to a fact-finding mission conducted by the UK Home Office in late 2019.

1. On 24 February 2020, the Tribunal wrote to applicant to give him the opportunity to provide any further submission in relation to these changed circumstances and the new country information. In post hearing submissions dated 9 March 2020, the applicant’s representative provided several references to articles published by the Tamil Guardian, an extract from what is said to be a report from the International Truth and Justice Project dated January 2020 headed Sri Lanka: and the crackdown begins and an article from Human Rights Watch dated 14 January 2020 in which the author opined that there was “every reason to fear that any progress Sri Lanka has made in recent years in restoring basic rights and rebuilding democratic institutions will be overturned with a vengeance”.[4]

   [4] https: peril

2. It was submitted that the DFAT report and the UK Home Office report should not be given any weight in awareness when assessing whether there was a real chance the applicant would be persecuted if he returned to Sri Lanka.

3. Under s.499 of the Act, the Tribunal must have regard to Direction 84 which provides, among other things, that the Tribunal must take into account, where relevant, any country information assessment prepared by DFAT, although it is noted that a decision-maker is not precluded from considering other relevant information about the country.

4. I reject the submission of the applicant that the DFAT and UK Home Office reports should not be given any weight on the question of whether the applicant would be persecuted on his return. In my decision in 1820986 [2020] AATA 973 (‘1820986’) I included a detailed analysis of the country information available in relation to Sri Lanka. Some of the information provided was information also provided by the applicant’s representatives in these proceedings. While I will not repeat much of that analysis in this decision, my findings in relation to the country information are nonetheless relevant and applicable to the circumstances of this case.

5. I have reviewed a broad range of material, including country information provided by the applicant’s representatives.

6. As I concluded in 1820986 the country information contained in the DFAT and UK Home Office reports is comprehensive and authoritative. I noted at [113] that the DFAT report takes into account relevant and credible open source reports, including those produced by the US Department of State, the UK Home Office, the World Bank and the International Monetary Fund, relevant UN agencies, including the office of the United Nations High Commissioner for Human Rights (OHCHR), the UNHCR and the International Organisation for Migration (IOM); leading human rights organisations such as Human Rights Watch, and Amnesty International and Freedom House; Sri Lankan non-governmental organisations (NGOs) and reputable news organisations.[5] I also noted at [153] that the report from the UK Home Office included the findings of a fact-finding mission conducted by the Home Office between 28 September and 5 October 2019. The team interviewed a wide range of sources, including Sri Lankan government officials, journalists and non-governmental organisations and met more than 50 people during 18 face-to-face interviews. I further noted that the information contained in these reports was not inconsistent with much of the country information contained in information provided by the applicant in that case. I have reviewed the country information provided by the applicant in this case and remain of the view that the country information contained in the DFAT and UK Home Office reports is authoritative and should be given considerable weight.

   [5] DFAT country information report for Sri Lanka dated 4 November 2019 at [1.4].

7. In 1820986, relevant to the circumstances in this case, I concluded at [214]-[217]:

   214.      The situation in Sri Lanka is complex and the election of Gotabaya Rajapaksa in November 2019 and the appointment of Mahinda Rajapaksa as Prime Minister has raised concerns amongst the Tamil community, particularly in the north, about whether there will be harassment of Tamils through monitoring and arbitrary detention and torture.

   215.      There are credible reports that this occurred during war and in the period following the war but there are also credible reports that this has decreased over time. According to both DFAT and the UK Home Office, the monitoring of Tamils has reduced, particularly since 2015. Tamils do not suffer persecution simply for being Tamil and, while low-profile former LTTE members or Tamils with imputed LTTE links may be monitored, it is generally accepted by DFAT and the UK Home Office that they are able to lead their lives without concern for their security. There are no laws or policies that discriminate against Tamils although Tamils, like other minorities, may face some discrimination. There is no evidence that Tamils face poverty based on persecution or discriminatory policies.

   ……….

   217.      There are credible reports of the CID detaining and torturing suspected LTTE members during and after the war to extract confessions, after which the suspects were held in detention on remand. There are also credible reports that these techniques of detention and torture continued until at least April 2016 in relation to suspects of terrorism and national security. However, it is also clear that the landscape has changed significantly since the end of the war. The LTTE is no longer active and there is little support for a resurgence of the LTTE. Notably the Sri Lankan government took decisive and proactive action after the end of the war to deal with LTTE members and associates. The preponderance of evidence is that Sri Lankan authorities focus on high-profile former LTTE members and not low-level participants. Both DFAT and the UK Home Office report that most LTTE members or former or imputed members have either been investigated or prosecuted or have undergone rehabilitation and have been released. Those who have not been investigated or sent to rehabilitation camps have been questioned and released. According to DFAT, most Tamils no longer advocate for a separate state and have more pressing concerns about housing, employment and the return of land or accessing information about relatives who have disappeared during the war.

   [Emphasis added]

8. I remain of this view and note that I concluded at [223]:

   Asylum seekers who are deported from other countries and who have departed Sri Lanka illegally will generally be questioned at the airport by immigration officials then the CID, who make additional checks.

9. My conclusions about the country information in 1820986 are consistent with the applicant’s submission that there is credible information that Sri Lankan authorities, particularly in recent times, may have an interest in someone with the applicant’s profile if he were to return to Sri Lanka.  This is because the applicant has a close association with a high profile Black Tiger (his brother), his other brothers were members of the LTTE and were imprisoned after the war, he had links to during the war to the [former employer] and he left Sri Lanka illegally in circumstances where, as I have accepted, he was still under reporting arrangements with the CID. While I do not accept the submissions of the applicant’s representative that the Sri Lankan government fears a LTTE revival, I accept that there has been increased vigilance since the Easter bombings in April 2019 and that a Tamil with the applicant’s profile is likely to be identified upon re-entry to Sri Lanka as someone with a profile that would warrant further questioning and possibly close monitoring.

   CONSIDERATION

   Does the applicant meet the criteria for protection under s 36(2)(a) based on the Refugees Convention?

10. To meet the criteria under s 36(2)(a) of the Act an applicant for protection must satisfy the definition for a refugee as set out in Article 1A of the Refugees Convention.

11. Firstly, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group: Chan v MIEA (1989) 169 CLR 379; Chan Yee Kin and Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429 (Mason CJ). The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality: Applicant A v Minister for Immigration and Ethnic Affairs (1996-97) 190 CLR 225 at [233] (Brennan CJ). However, the threat of harm need not be the result of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution: Chan Yee Kin v MIEA at 429 - 431 (McHugh J).

12. Secondly, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 571. A person has a ‘well-founded fear’ of persecution under the Refugees Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.[6] A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: refer Chan v MIEA (1989) 169 CLR 379; Chan Yee Kin v MIEA at 389.

    [6] Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989-1990) 169 CLR 379 at 429 (McHugh J) and 407 (Toohey J).

13. Thirdly, the fear must be based on one of the grounds set out in the Refugees Convention. In this case the applicant claims fear of persecution on the basis of his ethnicity, namely as a Tamil, together with his imputed political opinion as a supporter or former supporter of the LTTE and his association with a high-profile Tamil Tiger, and, in the alternative, as a member of a particular social group, being a returning Tamil asylum seeker who has left Sri Lanka illegally.

14. Finally, the applicant must not be able to avail themselves of protection within the country or third country protection.[7]

    [7] See SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 [19] (Gummow, Hayne and Crennan JJ) (Callinan J relevantly agreeing at [105]; see also Kirby J [69]-[70]).

15. In this case, there is no dispute that the basis for the applicant’s fear of persecution, if established, would fall within the Refugees Convention grounds. Further, there is no dispute that state protection would not be available to the applicant. Relevantly, I am satisfied about the applicant’s claims because they are based on the potential for persecution by Sri Lankan authorities. Nor is there any suggestion that the applicant can avail himself of protection in third country.

16. Having regard to the evidence and my findings, the critical issue in this case is therefore whether the applicant has a well-founded fear of persecution, namely, whether I am satisfied that there is a real chance the applicant will face serious harm on his return to Sri Lanka for reasons related to his ethnicity, political opinion and membership of a particular social group.

17. I am not satisfied that there is a real risk the applicant would face serious harm if he returned to Sri Lanka simply because he is a Tamil. Similarly, I am not satisfied that he would face persecution on the basis that he is a returning Tamil asylum seeker who was left Sri Lanka illegally. In my view, these are not matters that, on their own, would expose the applicant to monitoring and the persecution and harassment as he fears.

18. However, I am satisfied that the applicant has a profile such that he would come to the attention Sri Lanka authorities and that it is likely he would be questioned and possibly detained at the airport for an extended period or at another location so that Sri Lankan authorities could satisfy themselves about his activities and intentions. There is no objective or corroborated evidence before me that the applicant is on a CID watchlist or that there are warrants out for his arrest, although I cannot discount that possibility given the evidence he has provided. In other words, I am satisfied that the applicant has a profile that would bring him to the attention of Sri Lankan authorities because of his association with a high-profile Tamil Tiger, the association of his family with the former LTTE and his previous work with the [former employer], the claim that he left Sri Lanka illegally while on reporting arrangements (which I accept) and the possibility it may come to the attention of the authorities that he has previously given statements to third parties about war crimes, as recently as [year]. There is evidence that the authorities were still interested in the applicant’s whereabouts in [year] and while there have been many changes in Sri Lanka following the end of the war, I accept that recent tensions, having regard to the applicant’s particular circumstances, may make him more vulnerable than other returning Tamil asylum seekers.

19. Accordingly, I am satisfied that there is a real chance, in the sense that the chance is not remote, that the applicant may face serious harm on his return to Sri Lanka.

    CONCLUSION

20. For the reasons given above, I am 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

21. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Jan Redfern PSM
    Deputy President