1812480 (Refugee)

[2022] AATA 5094

1812480 (Refugee) [2022] AATA 5094 (20 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Angela Dwyer

CASE NUMBER:  1812480

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Justin Meyer

DATE:20 December 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 20 December 2022 at 12:02pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – ethnicity, imputed political opinion and membership of particular social groups – Tamil imputed as LTTE supporter – later claim of working in support role – injured and scarred and father and brother killed – obtained passport and departed lawfully, then entered Australia as unlawful maritime arrival – adverse security assessment, immigration detention and protracted application and review processes – mental health – country information – low risk of harm for low-level former members and supporters – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5J, 5L, 36(2)(a), (aa), (2B)(a), 65

Migration Regulations 1994 (Cth), Schedule 2

CASE

MIAC v SZQRB [2013] FCAFC 33

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 April 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2.    The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 1 July 2015. The delegate refused to grant the visa on the basis that the applicant did not hold a well-founded fear of persecution on account of being a failed (Tamil) asylum seeker who departed Sri Lanka illegally, nor was there a real risk he would be subject to a risk of torture or other Complementary Protection-related significant harm. If the applicant had a subjective fear of harm, it would be reasonable for the applicant to relocate to a place in Sri Lanka as per s 36(2B)(a), an area of the country where there would not be a real risk that he will suffer significant harm.

3.    The applicant appeared before the Tribunal on 28 July 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

4.    The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

Criteria for a protection visa

5.    The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6.    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

7.    A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

8.    Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

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

Mandatory considerations

10.      In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF Claims and evidence

11.      The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J of the Act in Sri Lanka and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

The Delegate’s Decision:

12.      A summary of the applicant’s claims as detailed in the delegate’s decision of 13 April 2018 are detailed below. The details provided below are verbatim from the decision of the Department of Home Affairs decision. 

Summary of Claims for Protection

Entry Interview.

In his Entry Interview on 13/04/2010 at Christmas Island IDC, the Applicant made the following claims:

The Applicant's name is [the applicant], he was born on [Date, Year] in [Town 1], Jaffna District, Sri Lanka, and he is a Sri Lankan citizen. He had resided in Jaffna from the time of his birth until he departed Sri Lanka in 1995 when he stayed at [Town 2] in the Vanni, Sri Lanka until 2008. He said that that during 2008 he resided at [City] in a place called [Town 3] in Sri Lanka for about three months. From May 2008 the Applicant was residing in [City, Country 1], until October 2009. He said that he is an ethnic Tamil and a Hindu.

The Applicant studied up to grade 8 and worked as a self-employed [worker] doing [work] on [worksites].

The Applicant's father was born in 1941 and he used to work as [an Occupation 1]. The Applicant's fa her was killed in 1987. The Applicant's mother was born in 1944 and resides in Jaffna.

The Applicant has a sister ([Ms A]) who resides in Sri Lanka, a brother ([Mr B]) who resides in [Country 1], another brother ([Mr C]) who resides in Jaffna, and a third brother ([Mr D]) who had passed away.

The Applicant left Sri Lanka legally by a flight to [Country 1] with a three month tourist visa but remained there unlawfully until he departed [Country 1] illegally by boat in [Year].

The Applicant said that because he lived in the Vanni and he had injuries so the Sri Lankan Army (SLA) had a heightened suspicion that the Applicant was an LTTE member.

In the period February to May 2000 the Applicant was required to report daily to sign his name, and after this he went to reside in [City].

In the Vanni the Applicant was travelling in a van and the SLA tried to stop it. The van driver didn't stop and the SLA opened fire on the van and the driver was killed. The Applicant was shot in the [Body part 1], the [Body part 2], and twice on his [Body part 3]. The other survivors in the van were also injured and they were admitted to hospital. The Applicant took 7-8 months to recover.

·The Applicant went to [City] that was an SLA controlled area and young men who resided there were being detained under suspicion of being LTTE members. They were constantly harassed and would be taken out of the camps blindfolded and shot. The Applicant feared for himself because of his bullet wound scarring and decided to flee to [Country 1].

·When the Applicant was on the boat that was travelling illegally out of [Country 1] the boat was taken to [Location] by the [Country 2] Navy but he and the others on the boat managed to escape because nobody was guarding the vessel.

·The Applicant travelled by car to [City, Country 2]] and then bought air tickets to [Island]. The Applicant and others boarded a small boat to travel before they were stopped by the Australian Navy and taken to Christmas Island.

RSA Application and RSA Interview claims:

·The Applicant assisted the LTTE from 1995 to 2000. He was conscripted because he was young and he worked in a support role in the LTTE camp and helped with cooking, ceremonies, looking after the wounded and notifying families of the dead.

·In 1997 the Applicant was transferred to the second front and was tasked with moving ammunition to the front line. Because the Applicant was not a fighter he was not regarded as a member of the LTTE.

·In June 2000 the Applicant applied for a discharge from the LTTE on the grounds of long service and the following month (July) he was released.

·The Applicant returned to Jaffna and obtained a National Identity Card. He then spent the next three years working on the family's [farm].

·Because the Applicant had lived in the Vanni and he had injuries, the SLA had a suspicion that the Applicant was an LTTE member. The Applicant was obliged to sign at the SLA camp every seven days and sometimes he was questioned. He was not mistreated but he did hear screams of other people.

·During 2003 the Applicant went to reside with his brother [Mr D] in [City].

·The Applicant was on his way in a white van when the SLA tried to stop the van but the driver did not comply. The SLA opened fire on the van and the driver was killed as well as two other people. The Applicant said that they had passed the checkpoint and the SLA soldiers were hidden on the side of the road in LTTE territory. The Applicant was badly wounded and local people took him to [Town 2] Hospital where he was treated and remained for the next six months.

·The Applicant returned to Jaffna and stayed there for one year before he returned to his brother's shop in September 2004. When he was in Jaffna, the SLA soldiers saw the scars on his body and after he was examined at [a] Camp he was told to report weekly to the camp.

·In August 2008 while the Applicant was leaving the SLA camp, men in a van fired on the men in front of him and killed two of them.

·The Applicant's [Body part 4] was broken in August 2008 by SLA soldiers during a questioning session. The Applicant was then taken to hospital by soldiers for treatment. The Applicant's parents wanted the Applicant to leave the area ([City]) and he went to the Vanni during [Year], and this was an LTTE controlled area where the Applicant did not have as much trouble.

·The Sri Lankan Air Force (SLAF) bombed the LTTE camp near the shop of the Applicant's brother and the Applicant was hit with shrapnel and hospitalised for a further 15 days. The Applicant decided that as the Vanni was being targeted he would go to [City] that was under the control of the SLA. However in [City] SLA soldiers would question the Applicant and several other young men, and their relatives would come and plead with the SLA that the men were innocent. Also, people from the Vanni were being shot.

·During August 2008, after fearing his injuries would cause him to come to the attention of the authorities he decided to leave for [Country 1] after his brother organised agents to assist him. The Applicant went from Sri Lanka to [Country 1] by plane. The Applicant resided in [Country 1] until October 2009 and resided with his older brother.

·The Applicant set out for Australia by sea until after four days he was intercepted by the [Country 2] Navy and brought to [Location]. The Applicant and others on the boat refused

·to disembark but managed to escape because no one was guarding the boat. The Applicant then made arrangements to travel to Australia from [Island].

·The SLA continued to target young Tamils in Jaffna. There were no young men left there. The Applicant's brother [Mr D] was found dead shortly after he was questioned by the SLA.

RSA Decislon of 03/09/2010:

·     The Decision Maker was concerned that the Applicant's involvement with the LTTE was greater than he was admitting and the Assessor noted many minor inconsistencies in the Applicant's claims as put forward. However, the Applicant had been seriously injured and suffered head injury and may have been affected by the ordeal he went through. The Decision Maker was willing to accept that the Applicant was not a combatant for the LTTE and the injuries he has suffered were not as a result of being an LTTE fighter.

·     The Applicant did not appear to have been identified by the Sri Lankan authorities as an LTTE member and the attention he received from the SLA appears to have been based around the time he spent in the Vanni region and based on his physical scarring rather than from any intelligence about his other activities. The Applicant could have been at some risk as the conflict entered its final years.

·     The Applicant was able to depart Sri Lanka without difficulties, although his account was inconsistent regarding how he obtained his passport and the role his brother played from [Country 1] in obtaining the Applicant's ticket.

·     Although the Applicant would not be regarded as an LTTE member based on the claims he presented, the Sri Lankan authorities had developed a process for dealing with former LTTE cadres based on the release of the most junior members, rehabilitation of mid-level fighters and activists, and prosecution of those linked to terrorism or other offences. The Decision Maker considered that the process established by the Sri Lankan government for dealing with former LTTE members was appropriate.

·     Although extra-judicial killings and abuses towards captured and suspected LTTE members occurred during the conflict and its immediate aftermath, the Decision Maker did not consider that LTTE prisoners faced such treatment in the then current environment.

·     The Decision Maker found that the Applicant's evidence he was never an LTTE member meant there were no real concerns raised regarding the then current UNHCR guidelines.

·     The Decision Maker found that the Applicant's scarring may attract some attention from the Sri

Lankan authorities, but given the conflict had lasted for 25 years and was mainly fought in the north and east of Sri Lanka, a significant number of Tamil civilians were injured in the fighting and would bear scars from the ordeal.

·     Information held by the Department was not able to confirm the Applicant's claims that he was aboard the [Location] vessel in [Country 2]. Whilst [Country 2] authorities had arranged the departure of the last groups from the boat [in] 04/2010, it is known that a number of persons departed without authorisation and the names of some of these persons were not all recorded. The Decision Maker accepted the Applicant may have been on board the [Location] vessel, but was not satisfied this of itself would cause the Applicant to be at risk of being persecuted. The Applicant said he was never an LTTE member and the interest of the Sri Lankan government in questioning the organisers of the voyage was a criminal issue rather than Convention related.

·     The Decision Maker found that the Applicant might have a subjective fear of persecution but this fear was not objectively well founded. Failed asylum seekers who had come under international media attention were likely to be subjected to the same screening as other failed asylum seekers and this would not amount to persecution.

·     The Decision Maker found the Applicant would not be a person of any interest to the Sri Lankan authorities and there were no criteria he met from the then most recent UK Home Office Report that may generate adverse interest from the Sri Lankan government, including having an outstanding arrest warrant, a criminal record, or being someone thought to have a connection with the LTTE, someone involved with the media or NGOs, or someone lacking an ID Card or other documentation.

·     The Decision Maker was not satisfied that the Applicant had a well-founded fear of being persecuted for a Convention reason in Sri Lanka.

Independent Merits Review Claims Submitted post 21/09/2010.

The Applicant submitted the following claims to the IMR:

·     The Applicant was a [Age 1] year old Sri Lankan national who was born in Jaffna City.

·     There was a common perception amongst Sri Lankan authorities that Tamils from the North were likely to be connected to the LTTE.

·     If the Sri Lankan authorities perceived the Applicant as having connections to the LTTE or being an LTTE member this would result in his being persecuted by the Sri Lankan authorities and his visible scarring would increase this risk. Whether the Applicant supported the LTTE or not was irrelevant.

·    The Applicant's father was killed by the Indian Army during 1987 and the Applicant moved with his mother and siblings from Jaffna to the Vanni during 1995 and this was an area controlled by the LTTE. The duties of the Applicant included helping to distribute food, clothing, and transporting the injured to hospital.

·    In 2000 the Applicant was granted a discharge from the LTTE and then worked on his family [farm] for three years before starting to work in his brother's [workplace].

·    In 2003 the Applicant was injured in a shooting attack on a van he was travelling in from [City] to Vanni. He was hospitalised for six months and then returned to Jaffna. He continued working in his brother's shop from about 2004.

·    In 2007 the Applicant was injured when his brother's shop in the Vanni was hit by an attack. The Applicant sustained shrapnel injuries to his [Body part 5] and was hospitalised.

·    Following his release from hospital the Applicant's scars were detected at a routine check by the SLA and although he could produce his hospital discharge papers, the SLA officers demanded he report to their camp each week.

·    In August 2008 when the Applicant was reporting to the SLA camp he was walking with others but two armed men opened fire out of a van and killed two of the group. The Applicant learned that the EPDP were hunting and killing many suspected LTTE members in similar incidents.

·     In December 2008 the Applicant decided to leave Sri Lanka when the war intensified. He feared that as an ex-LTTE member he could be hunted and killed because of his visible scarring.

Independent Merits Review Decision of 11/05/2011.

The IMR Reviewer made the following findings:

·     The Applicant was a Sri Lankan citizen and a Tamil Hindu.

·     The Applicant was a credible witness and he acknowledged there had been inaccuracies in his description of events, around the dates he had given for injuries he sustained and some events. His scarring and his description of events affecting him whilst he resided in Sri Lanka was consistent with the relevant objective country information.

·     The Applicant's scarring would likely draw him to the attention of any person interested in locating persons perceived as having been involved in the former conflict.

·     The Applicant was a passenger on the [Location] vessel based on his description of the events surrounding it. Some occupants on the vessel were specifically denounced by the SL government as being LTTE cadres based on having been identified by photographs of LTTE cadres, and the SL government was interested in having those people returned to them.

·     If the Applicant was to return to Sri Lanka and his involvement with the [Location] vessel became known he would be subject to detention and interrogation as a suspected LTTE member or sympathiser for this reason alone.

·     The Applicant was an unwilling and unpaid employee of the LTTE for the period 1995 to 2000. He assisted the LTTE during this time by performing administrative duties, but he was not actively involved in fighting for the LTTE. The Applicant's former employment was known to the SLA at the time he departed Sri Larika and that this period of unpaid employment with the LTTE

·     would identify the Applicant as a person of interest to the Sri.Lankan authorities. This would in all likelihood lead to the Applicant being detained and interrogated upon return to Sri Lanka.

·     The Applicant departed Sri Lanka in 2009 when his previous LTTE involvement was known and he was of interest to the SLA. The Applicant was required to report regularly to the SLA checkpoint because of his previous involvement, and he was a young male Tamil from Jaffna.

·     Other people in the Applicant's position were shot and killed after reporting to the SLA with him during 2008. The Applicant was of sufficient interest to the Sri Lankan authorities that they enquired about his absence and were suspicious of the reasons given after the Applicant's departure from Sri Lanka.

·     Soon after the Applicant departed Sri Lanka, the Applicant's brother was taken by the SLA and was killed. It was reasonable to infer that the death of the Applicant's brother ([Mr D]) was linked to the disappearance of the Applicant and his failure to continue reporting to the Sri Lankan authorities.

·     The fears of the Applicant including detention, interrogation, torture and death constitute serious harm and do amount to persecution, and there is a real chance that if he were to return to Sri Lanka as a consequence of the combined factors mentioned above that the Applicant would be detained, interrogated, and possibly tortured or killed as a young Tamil male from the North of Sri Lanka, and as having been a former passenger on the [Location] vessel in 2009. The Applicant has a profile as a former LTTE member who spent time in the Vanni and had obvious physical scarring. Relocation to another part of the country was not an option in the Applicant's case. For these reasons the Applicant met the criterion for a protection visa.

Temporary Protection Visa CTPV) claims:

In his Application for a TPV, the Applicant lodged a statement. The Applicant submitted in his statement as follows:

·     He was found to be owed protection in Australia on 11/05/2011.

·     He left Sri Lanka in fear of his life due to his Tamil ethnicity and imputed pro-LTTE political opinion.

·     He already provided a lot of information to the Department and ASIO about his history and protection claims. He has visible scars from shelling by the Sri Lankan Army and if he returns to Sri Lanka this could make the authorities suspect that he was an LTTE member.

·     He was also aboard the infamous asylum seeker boat in [Location], [Country 2], during October 2009. The Sri Lankan authorities made public statements that LTTE members were on that boat.

·     His previous adverse security assessment by ASIO would also raise suspicion in the minds of the Sri Lankan authorities.

·     He feared that if he returned to Sri Lankan that he would face serious harm or even death.

·     He feared that he would face harm from the Sri Lankan authorities wherever he goes. Sri Lanka is a small country and it would not be safe for him anywhere.

In his TPV Interview held on 15/02/2018 The Applicant submitted the following claims:

·     The Indian Army shot his father in 1987 when they were advancing and the Applicant's family had to leave their house for a local temple. The Applicant's family had been unable to bring clothing or food. When the Applicant's family returned to the house to get food and clothing the Indian Army ordered him to raise his hands but he didn't understand and was shot three times in the chest in front of the family home. The Applicant was [Ages] years old at the time.

·     The Applicant left school in [Year] at grade 10 because the war was very intensive and he was unable to continue his studies.

·     In 1996 or 1997 the Applicant resided in the Vanni. He was forced by the LTTE who controlled the area to be either a member of the LTTE or to be a 'volunteer'. He 'volunteered' for the LTTE two weeks per month over 7-8 months and he was taken to do different jobs. The Applicant said that he was the only one from his family taken by the LTTE because his brother [Mr C] was very young and his brother [Mr D] was slightly disabled. He said the family had a small shop in the Vanni that [Mr D] looked after.

·     The Applicant would cook rice and curry for the LTTE at their camp. He also helped injured LTTE soldiers in the hospital by feeding them and giving them medication. He said he would do this in the LTTE part of [Town 2] Hospital. The Applicant said he had no choice but to assist the LTTE. The Applicant stopped working for the LTTE after he was injured by the shells, then there was a time gap, and gradually he stopped working for them.

·     The Applicant was injured in two shelling incidents (one near the temple and the other near the family shop). He claimed that he was also injured in a shooting incident (when the van the Applicant was travelling in was shot at). The Applicant claimed that the shelling incidents were misdirected fire. He claimed he received shrapnel scarring to his [Body part 2] from the second shelling incident. He said he suffered these injuries in the period 1995 to 2000.

·     The Applicant stated that until 2002 the people in the Vanni were unable to move to Jaffna because the roads were blocked. He said that after the ceasefire started the authorities opened the roads. He said that in the period from 2002 to 2004 the Applicant helped his mother operate a lorry business in Jaffna by taking orders for the paid drivers.

·     The Applicant was issued a passport in 2003 in the name '[Alias] ', although his National ID Card was issued in the name [the applicant], and the reason for this was his grandfather's name was shown on his birth certificate and that was the name they used for his family name. Although he noticed the error after he left the passport office he never went back to have it corrected because he would have to stay in Colombo and that was hard for him.

·     His elder brother had been residing in [Country 1] for the past 32 years. The Applicant went to join his elder brother in [Country 1] with a tourist visa. This was because the Applicant had too many problems in his country and he left.

·     The Applicant was one of five siblings, although his brother [Mr D] was deceased. [Mr D] had died sometime after the Applicant left Sri Lanka during 2004. The Applicant did not find out about [Mr D]'s death until approximately 2008-2009. The Applicant said that in Jaffna after the family returned there from the Vanni one day at night time, all the youths in the area were taken. The Applicant said that after this, his family received the dead body of the Applicant's brother, but the family did not inform the Applicant about this at the time.

·     When the Applicant moved from Jaffna to the Vanni in 1995 the fighting was very intensive in Jaffna at that time. The Applicant was aged [age] then, and moved to the Vanni (at [Town 2]) because he had relatives there, and he moved with his family.

·     The Applicant's brother [Mr B] was residing in [Country 1]. The Applicant's brother [Mr C] resided in Jaffna at the family home with the Applicant's mother. The Applicant's sister [Ms A] also resided in Jaffna.

·     The Applicant worked illegally in [Country 1] for three years where he learned [skills], worked at a [company], and at a [shop].

·     The Applicant was one of [Number 1] people on the asylum seeker boat at [Location] in [Country 2], and the boat departed from [Country 1], not Sri Lanka. Some of the people were failed asylum seekers from [Country 3] and [Country 4] and they had English skills. The [boat skipper] gave some media interviews and the Sri Lankan government became concerned that the boat was full of LTTE members. There were no LTTE members on the boat. Out of the [Number 1] people, [Number 2] people have successfully sought asylum in Australia.

·     The Applicant was held in Immigration Detention by the Australian government for five years as a result of receiving an adverse security assessment by ASIO. The Applicant was released from detention during June 2015.

·     The Applicant no longer has an adverse security assessment.

·     The Applicant currently works as an [Occupation 2] at [Employer] in [Suburb].

Part 5 - FINDINGS OF FACT

I interviewed the Applicant at a TPV Interview with the Applicant's Agent in respect of the Applicant's claims, on 15/02/2018.

The Applicant's father was shot dead during 1987 by the Indian Army at Jaffna.

·     At the TPV Interview, I asked the Applicant why his father was shot and killed by the Indian Army at Jaffna during 1987. The Applicant responded that the Army was advancing and his family had to leave their home and move into the local temple. The Applicant said that his family were unable to bring clothes or food with them and subsequently had to go back to get food and clothes from their home. The Applicant said that when his family did this the Indian Army demanded that the family raise their hands, but his father didn't understand, and the Army shot him. The Applicant said that his father was shot three times in his chest and died. This occurred in front of his family. He was cremated in front of the home. The Applicant said that he was [Ages] years old at the time of this incident. I asked the Applicant why his family remained in Jaffna after this event. The Applicant said that they did not have any other place and it was only when the war intensified that the family moved to the Vanni.

·     I note that the Indian Peace Keeping Force was in Sri Lanka between July 1987 and March 1990 and there were a number of complaints against it during this period.1 The Indian Peace Keeping Force (IPKF) were sent to enforce the truce between the Indian government and the Sri Lankan government that called on the LTTE to disarm, but the LTTE did not disarm and fought against the Indian troops.2 On the basis that the IPKF were fighting with the LTTE from mid-1987, I accept it is plausible that the Applicant's father in Jaffna was mistakenly shot and killed by the IPKF as a civilian in a wartime environment, on the basis that he was perceived as disobeying direct orders from the IPKF.

The Applicant assisted the LTTE from 1995 to 2000 including cooking for and feeding LTTE cadres.

At his TPV Interview, I asked the Applicant about his role with the LTTE, and how often he had to help the LTTE. The Applicant said that in the beginning it was two weeks per month. The Applicant said this continued for about seven or eight months. The Applicant said that the LTTE would take him to do different jobs because the area (the Vanni) was fully controlled by the LTTE and there was no fighting there, so they did preparation work in case the Sri Lankan Army (SLA) advanced. The Applicant said that sometimes the Sri Lankan Air Force (SLAF) carried out aerial attacks. The Applicant said that it was only himself from his family who assisted the LTTE because his brother [Mr C] was very young at the time and his other brother [Mr D] was slightly disabled and he looked after the family's shop in the Vanni. The Applicant said that he never did weapons training with the LTTE and was doing 'voluntary' duties with the LTTE. These duties included cooking rice and curry for the LTTE at their camp, and he would also assist injured LTTE soldiers at the local hospital in [Town 2] by feeding them or giving them medication. The Applicant said that he assisted at the hospital for about one to one and a half months, but not continuously. The Applicant said that he would support himself otherwise by staying at home or helping his brother ([Mr D]) who was looking after the family shop. The Applicant said that in the LTTE controlled area, to own a shop it was necessary to hold a permit or pass, and when one member of the family volunteered for the LTTE, the LTTE would usually issue the pass. The Applicant said that when he was asked to join the LTTE he would make excuses such as saying if the war came (to the Vanni) he would move to Jaffna. I asked the Applicant why he said in his statement of 07/02/2018 that he was employed by the LTTE for many years. The Applicant said that even though he didn't continuously work for the LTTE, he was working withr them for many years. He said they provided food when he was at work and would give him medical help, but not his family. I asked the Applicant when he stopped providing this labour for the LTTE. The Applicant said that when there was no work he worked at home. He said he was injured by the shells, there was a gap in his LTTE service, and grc;1dually he stopped working with the LTTE.

1 [media information deleted].

·     Based on the Applicant's testimony at his TPV Interview, he denied having a formal association with the LTTE. He denied having been paid to 'work' for the LTTE. The Applicant indicated that he avoided weapons training, and was never trained to use weapons. The Applicant stated that he avoided invitations to join the LTTE, but provided civilian support for the LTTE over a period of some months, and for some years. The Applicant provided a vague response to my question about why he said in his February 2018 statement that his LTTE service had extended 'over many years'. The Applicant did not state precisely what he had done for the LTTE after he left the hospital role, but he indicated that at this time he had to recover from his shrapnel injuries and because he was assisting his brother in the shop this meant there were gaps in his service, and he gradually stopped working for the LTTE.

·     In considering the Applicant's claims, I note that in 1995 the LTTE lost its control of Jaffna and moved its military and political headquarters to Mullaitivu and Kilinochchi in the Vanni.3 This was the same time period that the Applicant stated his family moved from Jaffna to [Town 4]. Country information reports that in December 1995, 250,000 civilians fled from Jaffna after the SLA took control of this area. 4 I note that after 2002 the LTTE explicitly prohibited the abduction, harassment and intimidation of civilians, but it did bring in a 'quota system' of one child per family that were expected to join the LTTE in areas they controlled.5 From 1999 'civilian militias' supported the LTTE regular military cadres and they were made up of both male and female civilians. These people were given basic military training, physical training and were sometimes trained in casualty evacuation techniques. These forces included the Eela Padai (Eela Force), Grama Padai (Rural Force) and Thlinai Paida (Support Force). The Eela Paid was composed of roughly 5000 civilians who initially acted as home guards and who also sometimes ran various LTTE owned commercial ventures. These militia members were believed to have received a monthly salary of 2,500 Rupees from the LTTE and were used for both offensive and defensive operations in the Vanni.6 Prior to the use of formal civilian militias, the LTTE made use of 'Podians' or civilian helpers. Podians were sometimes school children or older youth who were summoned by the LTTE, trained in the use of a pistol and tasked to commit hit and run assassinations. Podians also helped in other more mundane areas including the dissemination of information, the collection of taxes and the provision of supplies and shelter to LTTE cadres.7 In 1994 children in LTTE run schools spent one or two hours per day digging bunkers as a form of militarised civic duty and were eventually asked to join the LTTE. Enlistment was supposedly voluntary but families were menaced with property confiscation or physical violence of they appeared unwilling to contribute their sons for the cause. In 1998 an estimate of LTTE combatants killed in combat revealed that 40 per cent of the LTTE fighting force were males and females between nine and eighteen years of age.8 The Applicant was born in [Year ] and would have been 15-16 years old in [Year]. I note that a UN Panel of Experts after 2009 did not find sufficient evidence to suggest the LTTE violated  international humanitarian customary law on use of human shields or deliberately moved civilians towards military targets in order to protect these targets from attack, but the Panel did find  evidence that the LTTE breached international humanitarian law prohibiting the location of military  objectives near densely populated civilian areas. 9 I assess that if the Applicant had no military training then he would not have been a member of the Eela Force, the Grama Padai or Thunai Paida. I accept that if the Applicant may have been a 'civilian helper' (Podian) who provided supplies to LTTE

2 Yael Stein & Alex Barnea Burnley, "Sri Lanka -Tamil and Sinhalese Conflict Timeline 1972-2010", GPN [Genocide Prevention Now}, 29 June 2011, CISD9559B12289 at p.9.
3 Joanne Richards, "An Institutional History of of the Liberation Tigers of Tamil Eelam (LTTE)", CCDP Working Papers, Centre on Conflict, Development and Peacebuilding (CCDP) - Graduate Institute of International and Development Studies, Geneva, 01 November 2014, CISA447F082828 at p.42.
4 Minorities at Risk, "Chronology for Sri Lankan Tamils in Sri Lanka", Center for International Development and Conflict Management (C/DCM), 01 January 2013, CIS26243 p.9.
5 Joanne Richards, "An Institutional History of of the Liberation Tigers of Tamil Eelam (LTTE)", CCDP Working Papers, Centre on Conflict, Development and Peacebuilding (CCDP) - Graduate Institute of International and Development Studies, Geneva, 01 November 2014, CISA447F082828 at p.31-32.
6 Ibid at p.29.
7 Ibid at pp 29-30.

8 Ibid at pp 31-32.cadres prior to the formation of these specific militias from 1999.

On this basis, I accept that this ctaim is plausible.  I find In the circumstances that any assistance
The Applicant provided to the LTTE was periodic and discontinuous, and he was normally otherwise engaged helping his brother operate his family business, and with [work] he did
independently, based on his Entry Interview claims. I do not accept that the Applicant worked
with the LTTE 'for years' but find that it is plausible he was periodically engaged by the LTTE
when he was a youth to perform basic tasks for them over a period of years.

The Applicant received scarring from shrapnel and bullet wounds as a civilian in three incidents.

·At the Applicant's TPV Interview, I observed what appeared to be shrapnel scarring to the

Applicant's [Body part 7]. In his previous interviews, the Applicant's scarring has been discussed and examined by the interviewers. I accept that the Applicant has sustained scarring to his
[Body part 6], [Body part 1] and [Body part 5] as well as to his [Body part 7]. I also accept that the Applicant required lengthy periods in hospital to be treated for the iniuries he sustained. I note that it is possible the Applicant might have sustained the shrapnel wounds in combat for the LTTE, because he was hit on two occasions by shrapnel and once by bullet fire over a five year period. When I asked the Applicant how he sustained the injuries, he indicated he was injured three times in the period 1995 to 2000. He stated that he received shell shrapnel injuries when he was going to the Hindu temple with others at a time when there were no LTTE soldiers in the area, and that the shelling was from the SLA. The Applicant stated he was also hit by shrapnel when the area near his brother's shop was shelled at the time when the Applicant was near the shop. The Applicant stated that he received a bullet wound injury to his lower leg when a van he was travelling in was hit and two people in the van were killed when the SLA fired upon it from a concealed position in an LTTE controlled area. According to the Applicant's protection application, he was resident in the [Town 4] area of the Vanni from 1995 to 2000. The Applicant denied being in the LTTE at this time as a fighter.

·In considering the incidence of civilian injuries in the Vanni during the period from 1995 to

2000, I note that at the end of September 1998 the SLA lost the key northern town of Kilinochchi to
the LTTE in fierce fighting which left many hundreds dead. The SLA captured the tactically more
important town of Mankulam. In December 1998 the SLA offensive linked up the key towns of
Mankul.am, Oddusuddan and Nedukerni as part of the military strategy of inching closer to the LTTE base in Mullaitivu.10 In March 1999 the SLA launched a new offensive in the north with the
objective of expanding the area controlled by the security forces in the Vanni region and the SLA
quickly recaptured 535 square kilometres of territory formerly held by the LTTE. The SLA captured a further 325 kilometres of area from the LTTE later that month including the town of Madhu, as well
as a further 102 square kilometres in the north western Mannar District.11 Although I accept it is
possible that the Applicant was injured by shooting and sustained a bullet wound and shell shrapnel
as a combatant for the LTTE, I find that there was considerable military activity and fighting
between the SLA and LTTE in areas near Mullaitivu during the period 1995 to 2000. On this basis I
accept it is plausible that the Applicant was injured as a civilian in these areas during this
period due to the significant battles between the LTTE and the SLA that occurred at this lime. For

this reason, I accept that it is plausible the Applicant did receive scarring from shrapnel and buffet wounds as a civilian in three separate incidents between 1995 and 2000.

9 Ibid at p.37.
10  UK Home Office, "Country of Origin Information Report Sri Lanka April 2003", 01 April 2003,
OGC2996EC13 at p.9.
11 Ibid at p.10.

The Applicant departed Sri Lanka on [Date, Year] rather than during 2008 or 2009.

·I note that the Applicant claimed in his Entry Interview, RSA Application and RSA Review Application that he departed Sri Lanka during 2008 or 2009. The Applicant also claimed that his brother [Mr D] was killed shortly after the Applicant departed Sri Lanka. I further note the Applicant stated in his TPV Application that he in fact travelled lawfully from Sri Lanka to [Country 1] with a valid visa on [Date, Year ], and sought and received an extension of his passport in [Country 1] during 2008 until 2013. I note that the Applicant presented a scanned copy of a Sri Lankan passport in his name that was issued in [Year] as described above. This is consistent with the Applicant having potentially departed Sri Lanka in [Year]. On this basis, I find that it Is plausible that the Applicant departed Sri Lanka on [Date Year].

After arriving in Australia the Applicant was detained because of an adverse security assessment.

·I note that the Applicant was in held immigration detention from his arrival in Australia [in] 03/2010 until 07/07/2015, a period of more than five years. There is a note on the Departmental database that the Applicant was the subject of an adverse security assessment as of 06/01/2012, and there is a further note that on 08/04/2015 the Applicant was issued a non-prejudicial security assessment. For these reasons, I accept the Applicant's claim on this point is plausible.

Tbe Applicant was subject to the data breach incident in early 2014.

·Departmental  bases show that the Applicant was in detention on 31/01/2014 and as such may have been affected by the unintentional access to personal information in the public domain. On this basis, I accept the Applicant's claims on this point are plausible.

Findings.

1. On the information before me, I find the following:

   a.    The Applicant is Tamil and a Hindu.

   b.    The Applicant was born in Jaffna District, Northern Province, Sri Lanka on [Date, Year].

   14.       He is a Sri Lankan citizen by birth.

   c.     He resided from the time of his birth until he departed Sri Lanka in Jaffna, [Town 4] and Jaffna.

   d.    His father was shot dead by the Indian Peace Keeping Force in Jaffna during 1987.

   e.    His eldest brother [Mr B] has been residing in [Country 1] for many years and works there as [an Occupation 1].

   f.    The Applicant left school at [Number] grade level in 1995.

   g.    The Applicant's family relocated from Jaffna to [Town 4] during 1995 after the SLA took over the Jaffna area.

   h.     The Applicant was compelled to assist the LTTE in [Town 4] (the Vanni) for several months over the period 1995 to 2000 as a civilian volunteer. During this time he assisted with cooking and with helping injured LTTE cadres in the local hospital LTTE ward.

   i.  The Applicant was injured on three occasions as a civilian. He was twice hit with shrapnel and was once shot in the [Body part 1] by the SLA. These incidents occurred over the five year period from 1995 to 2000.

   j.  From 2000 the Applicant moved with his family back to the Jaffna area where the

   Applicant assisted his mother with operating a [business].

   k  On [Date] the Applicant departed Sri Lanka lawfully with a tourist visa to [Country 1]. The Applicant overstayed his three month visa and remained in [Country 1] until 2009.  
   L The Applicant's brother, [Mr D], was abducted by the SLA at some point after the Applicant departed Sri Lanka, and has been missing since. The Applicant's family did not advise the Applicant at the time until some point in 2008.
   m The Applicant's mother, surviving younger brother, and a sister, currently reside in the Jaffna area of Sri Lanka.
   n  The Applicant departed [Country 1] unlawfully by boat that travelled to [Country 2]. This boat was stopped at [Location] by the [Country 2] authorities in October 2009. This boat drew media attention when [the captain] was interviewed, and the Sri Lankan Government speculated that it was full of escaping LTTE members.
   o  The Applicant eluded the [Country 2] authorities and travelled to an island where he departed [Country 2] illegally for Australia by boat in March 2010.
   p  The Applicant arrived in Australia aboard the vessel codenamed '[Codename]' [in] 03/2010.
   q  After arriving in Australia, the Applicant was detained and kept in held detention by the
   Department of Immigration for more than five years because of an adverse security assessment. The Applicant was subsequently released into the community.

   r  The Applicant was subject to the 'data breach' incident in early 2014.

The Representative’s submissions:

1. The representative provided detailed submissions to the Tribunal outlining the applicant’s claims for protection by Australia.  The applicant’s claims for refugee protection by Australia are based on his Tamil ethnicity, political opinion/s and membership of a particular social groups.

2. It is submitted by the representative that the applicant is owed protection by Australia on Refugee Convention grounds, taken individually or cumulatively.  In particular, it is asserted that the applicant faces a real chance of persecution by the Sri Lankan authorities such as the Criminal Investigation Department (CID), the Sri Lankan Army (SLA), and/or Sinhala locals, due to his Tamil ethnicity, political opinions opposing the government but supporting the Liberation Tigers of Eamil Eelam (LTTE) and his membership of a particular social group.

3. A relevant excerpt from the representative’s submission summarising the applicant’s claims is noted below:

   Outline of claims

   We continue to submit that [the applicant] is owed protection by Australia on the basis that there is a real chance that [the applicant] will face serious harm, of the type that could be accurately described as persecution, from the Sri Lankan authorities; particularly the Criminal Investigation Department (CID) and the Sri Lankan Army (SLA), and/or other Sinhala locals on account of the following Refugee Convention grounds, taken either individually or cumulatively:

   i)his Tamil ethnicity; and/or

   ii)his actual and/or imputed political opinion against the government and in support of the Liberation Tigers of Tamil Eelam (LTTE), and of being of being pro LTTE and/or pro Tamil- separatist on account of:

   a)    his having been subjected to an adverse security assessment by the Australian Security Intelligence Organisation (ASIO); and/or

   b)   his having been a passenger on the [Location] vessel; and/or

   c)    his application for asylum and prolonged presence in Australia; and/or

   d)   his prolonged detention in Australia; and/or

   e)   his Tamil ethnicity; and/or

   f)    his origins from former LTTE controlled areas / Northern province; and/or

   g)    his conscripted work for the LTTE; and/or

   h)   his numerous scars and wounds from injuries sustained during conflict between the LTTE and the SLA; and/or

   i)    the death of his father at the hands of the Indian Army and one of his brothers at the hands of the SLA; and/or

   j)    his prolonged absence from Sri Lanka since late 2003.

   iii)        his membership of particular social groups, namely:

   a)    A Tamil person who is perceived to have information relating to current and past LTTE activity within the Tamil diaspora; and/or

   b)   A Tamil person and member of the Tamil diaspora who is perceived to have information which may assist in, and/or have personal interests in, fermenting the resurgence of the LTTE or post-conflict Tamil separatism; and/or

   c)    A person who is perceived by the Sri Lankan community here, and/or the Sri Lankan government to have been a particularly dangerous former member of the LTTE for the following reasons;

   ·[The applicant] being deemed a security risk, even to Australia, on account of suspected LTTE activity and an ongoing risk to national security; and

   ·[The applicant] having been detained in Australia for over five years, with former members of the LTTE and other detainees who also received adverse security assessments;

   ·[The applicant] having fled the country at the end of the civil war and never having been rehabilitated; and

   ·[The applicant] having been on the ‘[Location] boat’ where some occupants of that vessel were specifically denounced by the Sri Lankan government as being LTTE cadres based on having been identified by photographs of the LTTE cadres, where the Sri Lankan government were interested in having those people returned to them.

   d)   ‘Tamil returnees’ / ‘failed Tamil asylum seekers’.

   In regard to his actual and imputed membership of the above particular social groups, we submit as follows, with regard to the test in 5L of the Act and relevant country information:

   ·First, the groups are identifiable by a characteristic that is shared by each member;

   ·Second, [the applicant] shares or is imputed by others to share this characteristic with the groups; and

   ·Thirdly, this characteristic distinguishes the group from society in Sr Lanka.

4. Based on his former treatment (which has included physical abuse and detention by the Sri Lankan authorities) and country information reports, the representative maintains that the applicant has a well-founded, genuine fear of persecution by the state authorities in Sri Lanka.

5. Complementary protection claims have also been raised pursuant to section 36(2)(aa) of the Migration Act on the basis that “there is a real risk that he would suffer significant harm if removed from Australia to Sri Lanka, in the form of arbitrary deprivation of life; torture, cruel or inhuman treatment or punishment; and/or degrading treatment or punishment at the hands of individual members of the Sri Lankan security forces and authorities; prison guards and individual police officers/and or other Sinhala locals.” [emphasis added].

6. In relation to questions surrounding the applicant’s credibility, the representative placed reliance on Tribunal guidelines and the UNHCR Guidance note on vulnerable applicants.  Notably, the representative submitted that the applicant’s mental health has deteriorated significantly due to his adverse security assessment, his five (5) years spent in detention and the protracted nature of this application which has continued for around 12 years.  On this basis, the representative submitted that the decline in the applicant’s mental health, the ‘lengthy passage of time [and] his injuries’ should be ‘given significant weight by the Tribunal’ where issues of credibility arose in relation to the applicant’s evidence.

7. The representative also maintains that the COVID-19 pandemic, together with the current economic crisis in Sri Lanka, will exacerbate the risks to the applicant in relation to his ability to live safely and access medical care in Sri Lanka.

8. Subsequent to the hearing, the representative provided further written submissions on 15 August 2022, addressing the issue of whether the applicant’s profile was high enough to warrant attention from the Sri Lankan authorities should he be returned to Sri Lanka.  Concerns relating to the level of the applicant’s profile in Sri Lanka were raised by the Tribunal at the hearing of 28 July 2022.

9. Reference was made by the representative in their post hearing submissions to the applicant’s ‘highly vulnerable state’ (emphasis added).  It was claimed by the representative that if the applicant were returned to Sri Lanka, that his vulnerability would be heightened. 

10. It was further submitted by the representative that the applicant is a high profile LTTE member.  This representation is not only based on the applicant’s Tamil ethnicity, but on the adverse security assessment by the Australian Security Intelligence Organisation (ASIO).  It is claimed that the adverse security assessment by ASIO is due to the applicant’s imputed political opinion against the government, his ideological support of the LTTE and its use of violence, and his support for pro Tamil separatists.

11. It is claimed that the applicant would have a high profile within Sri Lanka, as ASIO is likely to have shared the adverse security assessment with Sri Lankan authorities.  Further, on 10 February 2014, the Department mistakenly published a detention report detailing the applicant’s identifying information including the reason for his detention, being the adverse security clearance of ASIO made on 5 January 2014.  According to the representative, this detention report was also published on the Internet Archive from 11 February 2014 to 27 February 2014.

12. Reference was made in the representative’s post hearing submissions to the fact that the applicant was a passenger on the ‘[Location]’ boat, a vessel of high interest, ‘widely reported around the world’ (emphasis added).  The representative submitted that “there is certainly a real chance of the applicant’s presence on that boat would be known to the Sri Lankan authorities” (emphasis added).   

13. The representative further notes the applicant would have a high profile in Sri Lanka due to the scars on his body, his prolonged presence and detention in Australia, his Tamil ethnicity, his LTTE work and the death of his family members.  It is claimed that his father and brother were killed by the Indian Army and SLA respectively. Further, according to the representative, the fact that the applicant originates from the former LTTE controlled areas, also raises his profile within Sri Lanka.

14. Reliance is also placed on the applicant’s membership of a particular social group by the representative.  It is claimed that as the applicant is a Tamil person and member of the Tamil diaspora, his profile is raised making him of interest to the Sri Lankan authorities.  In reference to this claim, the representative reiterates the points noted above regarding the adverse ASIO security finding, his five years detention in Australia with other LTTE detainees and those with adverse security assessments and his departure from Sri Lanka on the ‘[Location] boat’.  Further, it is claimed that the applicant left Sri Lanka at the end of the civil war, was never rehabilitated and is a ‘Tamil returnee/failed Tamil asylum seeker’.  These factors in combination are claimed by the representative to raise the applicant’s profile should he be returned to Sri Lanka.  

15. The finding of the IMR is quoted extensively by the representative in their post hearing submission. 

16. The relevant excerpt from the IMR referenced by the representative is copied below:

    I am satisfied that persons who suspected of being linked to the L TTE who come to the attention of the Government or Sri Lankan Army are at real risk of being detained for a considerable period (if not indefinitely), tortured or interrogated and may also be killed during periods of detention. There are sufficiently voluminous reports of such incidents generally published and acknowledged in the available country information such that I consider that the likelihood of such a turn of events taking place in [the applicant] s case is not remote or fanciful. I think it is likely that if [the applicant] was to return to Sri Lanka and his involvement with the [Location] vessel were known or to become known, he would be subject to detention and interrogation as a suspected LTTE member or sympathiser for the reason of his passage on the [Location] vessel alone.

    I accept that [the applicant] has a genuine and reasonably based fear of being detained, interrogated and/or tortured on the basis of his imputed political beliefs and his membership of two particular social groups - as a young Tamil male from the north and as having been a former passenger of the vessel detained at [Location] in late 2009. I accept that he has a profile (as a former LTTE worker who spent time in Vanni and who has obvious scarring) which is likely to bring him to the attention of the authorities if he were to be returned to Sri Lanka, which increases the likelihood.

    I also accept that [the applicant] departed Sri Lanka In 2009 in circumstances where his previous involvement with the L TTE was already known and of interest to the Sri Lankan Army. I accept that he was required to report regularly to the Army checkpoint because of his previous involvement and because he was a young Tamil man in Jaffna towards the end of the conflict. I accept that others in his position were shot and killed after reporting with him in late 2008. I accept that he was sufficiently of interest to the authorities after his departure that they enquired about his absence and were suspicious of the reasons given. I accept that soon after this his brother was taken by the Army and killed. In my view it is reasonable to infer that [Mr D]'s death may have been linked to [the applicant]'s disappearance and failure to continue to report to the authorities.

    His description of the events surrounding that vessel and his 'escape' from it are consistent with the generally published information regarding the events. Further, I accept that some unnamed occupants of this vessel were specifically denounced by the SL authorities as having been identified from photographs as 'LTTE Cadres' and that the SL government expressed an interest in having those occupants returned to them.9 I am satisfied that [the applicant], as an occupant of that vessel, would be of considerable interest to the Government of Sri Lanka, and its agencies. [The applicant]'s name and details were taken by the [Country 2] government and he is unaware if those details have been passed on to the Sri Lankan Government. I do not think that the passage of time will have lessened the interest of the Sri Lankan authorities in the passengers of the [Location] vessel.

132.   Considering the Tribunal's findings about the applicant's ASIO assessments, the personal data breach resulting in personal information about the applicant, and others being unofficially released into the public domain, the [Location] incident, the DFAT country information and material country information provided by the applicant, the Tribunal's forgoing findings and concerns, and the evidence as a whole, the Tribunal is not satisfied of the following matters: there is a real chance the applicant would be arrested at the airport, put into detention, harmed in custody, or killed, for reasons of his actual or imputed political opinions, his ethnicity or for any other reason, if he is returned to Sri Lanka now or in the reasonably foreseeable future.

Wounds

133.   I accept that there is shrapnel scarring to the applicant's [Body part 7].

134.   He has scarring to his [Body part 6], [Body part 1] and [Body part 5] as well. He has had lengthy periods in hospital to be treated for the injuries he sustained.

135.   He was hit on two occasions by shrapnel and once by bullet fire over a five-year period. He was injured three times in the period 1995 to 2000. He received shell shrapnel injuries when he was going to the Hindu temple with others at a time when there were no LTTE soldiers in the area, and that the shelling was from the SLA. He was also hit by shrapnel when the area near his brother's shop was shelled at the time when the Applicant was near the shop. The Applicant stated that he received a bullet wound injury to his [Body part 1] when a van he was travelling in was hit and two people in the van were killed when the SLA fired upon it.

136.   The applicant has not received these injuries as a LTTE fighter. He has received them when he was caught up in the incidents described. The Tribunal is unable to find that these injuries, even if noticeable to others in Sri Lanka lead to a risk, cumulative or otherwise. Persons in society can have injuries of various kinds, some more noticeable than others. Injuries and scars can be caused by a variety of occurrences. People can sustain industrial accidents, mishaps, car accidents, be the victims of non-warfare violence for example. The applicant has lived abroad for many years. It could be surmised that injuries occurred while abroad for example. While some people may think that the injuries were because of combat, it is imponderable how many people might think that and in what numbers. This is thus speculative and beyond the realm of conclusions now or in the reasonably foreseeable future.

The applicant’s father

137.   While it is accepted that his father was shot and killed by the Indian Army when it was deploying a peacekeeping force at Jaffna during 1987, this was a due to a misunderstanding. I am not able to conclude that authorities or others readily have this information at their disposal or would be motivated to search for it. There is no reason to establish that this was anything more than a historical occurrence not readily or widely known, and does not create or contribute to a real chance of serious harm.

COVID-19 pandemic, together with the current economic crisis in Sri Lanka

138.   The applicant argues that these will exacerbate the risks to the applicant in relation to his ability to live safely and access medical care in Sri Lanka.

139.   The Tribunal concludes that the worst of Covid-19 has passed in Sri Lanka. Current official figures show the lowest rate of infection and death in years, and it is one of the least affected countries.[6] There is nothing to suggest that there will be any substantial uptick.

[6]  It is also not evident that the current economic and political crisis in Sri Lanka would also make the applicant a person of high profile should he be returned to Sri Lanka. While there are reports of suppression of dissents by the government during this current period of political, humanitarian and economic crisis, it is further claimed that as a Tamil he faces the risk that Tamils within Sri Lanka face at this time of unrest.

141.   The Tribunal is unable to conclude that there is a real chance the applicant would suffer treatment amounting to persecution involving serious harm because of the increased economic and political upheaval, or due to the exacerbation of other risks because of this increase. This is because his Tamil identity in and of itself does not equate to harm being a real chance and because he has not expressed political views or had a profile in any public way, as discussed. It is speculative to envisage the applicant as a bystander in any future protest or gathering.  There is no pressing evidence or inference that he would be so involved.

Injuries and interrogation

142.   As earlier mentioned, while I accept that there was physical harm that he has claimed I do not find that harm in the past points to similar or the same in the future for the reasons outlined.

The Vanni

143.   The applicant claims that one of the elements of his profile imputing him with an LTTE /anti-government political opinion is his origin from the Vanni area in the north of Sri Lanka. Given that the LTTE had administrative control of the north and east, involvement with the LTTE was an inevitable part of life, and DFAT assessment of people at risk of serious harm on return to Sri Lanka indicates that originating from an area that was previously controlled by the LTTE does not in itself provide the applicant with a profile of adverse interest to the authorities. The Tribunal finds the applicant does not face a real chance of persecution involving serious harm, or a real risk of significant harm, from the SLA or any other Sri Lankan security authorities as a person from the Vanni in the north of Sri Lanka.

Cumulative consideration

144.   Even considering all of these matters cumulatively, I do not find them to be resultant in a real chance that, if the person is returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in the definition.

Complementary protection criterion

145.   Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).

146.   In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[7]

[7] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

147.   Considering the applicant’s circumstances individually and cumulatively, and having regard to the findings of fact set out above, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk that the applicant would suffer significant harm as set out in s.36(2A), from the Sri Lankan authorities, including the SLA; the Sinhalese community; or from any other agency, organisation, group or individual.

148.   Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

Member of the same family unit

149.   There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.  Accordingly, the applicant does not satisfy the criterion in s.36(2).

decision

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

Justin Meyer
Member

Attachment  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

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torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

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receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

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5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

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5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

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36     Protection visas – criteria provided for by this Act

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(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

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