1812822 (Refugee)

[2023] AATA 3618

1812822 (Refugee) [2023] AATA 3618 (3 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Chellappah Ambikaipalan (MARN: 9905055)

CASE NUMBER:  1812822

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Shahyar Roushan

DATE:3 August 2023

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 03 August 2023 at 12:41pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Court remittal – ethnic Tamil – imputed political opinion – active Tamil National Alliance (TNA) member – opposed the Pillayan group (also known as Tamil Makkal Viduthalai Pulikal (TMVP) or the Karuna group) – visible scars – imputed LTTE links and anti-government sentiments – failed asylum seeker – illegal departure from Sri Lanka – participation in Tamil commemorative events in Australia – physical and mental health issues – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

BACKGROUND

1. The applicant is a [age]-year-old national of Sri Lanka. He is of Tamil ethnicity and a Hindu. He arrived in Australia [in] June 2012 as an Irregular Maritime Arrival (IMA) and lodged an application for a protection visa on 19 November 2012.

2. On 11 September 2013, a delegate of the Minister refused to grant a protection visa under

   
   

   s 65 of the Migration Act 1958 (Cth) (the Act) and the applicant applied for a review of the delegate’s decision to the Administrative Appeals Tribunal.

3. On 26 March 2015, a differently constituted Tribunal (the first Tribunal) affirmed the delegate’s decision.

4. On 17 April 2015, the applicant applied to the then Federal Circuit Court of Australia for a review of the first Tribunal’s decision. [In] 2017, the Court dismissed the application and the applicant applied to the Federal Court of Australia. [In] 2018, the Federal Court of Australia quashed the first Tribunal’s decision and remitted the matter for redetermination according to law.

5. The matter is now before the presently constituted Tribunal (the Tribunal) for reconsideration.

   CLAIMS AND EVIDENCE

   Entry interview

6. Soon after he arrived in Australia, the applicant attended an Entry Interview with the Department on 2 August 2012. At that interview, he described the incidents prompting his departure from Sri Lanka. The applicant expanded upon these claims in written and oral evidence subsequently provided to the Department and in support of his review application, as detailed below.

   Protection visa application

7. According to his protection visa application, the applicant was born in [Town 1], Batticaloa and predominantly resided in the Eastern Province of Sri Lanka. He completed 10 years of schooling and worked in various occupations before travelling to Australia. The applicant’s wife, his [number] children and his siblings continue to reside in Sri Lanka.

8. In a statement accompanying his protection visa application, the applicant made the following claims.

9. He grew up in [Town 1], but also spent ‘some years’ in [City 1]. His father is retired, and his mother has passed away. He is married and has [number] children. Before coming to Australia, he worked in ‘[specified industry]’.

10. His family have been involved in politics for a ‘very long time’. He became interested in politics at the age of 20 after his uncle won the provincial elections. However, it was not until 2010 when he became ‘more actively’ involved in politics by supporting the Tamil National Alliance (TNA), which advocates for the rights of the Tamil people. He organised and attended rallies, spoke ‘in front of crowds’, went door knocking and took on a ‘marketing role’, preparing posters and sending out fliers.

11. During the election campaign in 2010, he was returning from a conference when members of the opposition party damaged his motorbike and broke the windows of his house. ‘Fights’ between opposing parties were ‘common… during such times’.

12. On 27 May 2012, he was invited to attend a conference to discuss the upcoming provincial elections, which were scheduled to be held on 13 August 2012. On the evening before the conference, the applicant received a phone call, warning him that he would be ‘shot and killed’ if he attended the event. He informed the party leader, who told him not to worry and insisted that the applicant should attend. During the conference, a group of men arrived at the venue and began to damage property and broke the windscreen of a bus. Despite this disruption, the conference continued, and the applicant was put in charge of marketing for the election and coordinating rallies for the area.

13. Later that night, he was in the backyard of his home working when two armed men came to his house searching for him. His wife told them that he was not home, but they forced their way in. The applicant, however, was able to escape through the back fence and fled to a temple. He was subsequently taken to Batticaloa by his brother.

14. On the following day, the two men visited his house again, searching for him. His brother told him that the situation was dangerous and opposition groups linked to the ruling party, including Pillayan’s group, were after him because of his support for the TNA. Pillayan’s defeat and TNA’s victory at the provincial elections that year fuelled the ‘animosity and hatred’ towards him. The situation had also led to his eldest son relocating to live with his grandmother in order to avoid any harm that might be directed towards him because of the applicant.

15. Following the applicant’s departure from Sri Lanka, two others who held similar roles as him in TNA were abducted and shot. He fears being kidnapped, tortured, or killed for his role in ‘campaigning for the TNA in their ultimate victory.’

    Supporting documents

    The applicant submitted the following documents to the Department in support of his protection visa application:

    ·Copy and translation of a letter from a [Mr A] (also referred to elsewhere as [Alias A]), a Member of Parliament for [District 1] in Sri Lanka and addressed to the appellant as ‘[Position 1]’ and advised that the 14th annual conference of the local TNA was to be held on 27 May 2012 and contained an agenda for the meeting.

    ·Translation of a document titled ‘Illanka Tamil Arasu Kachchi’s (Federal Party)’ featuring the applicant’s name (with variation in the English spelling) and his position as ‘[Position 1]’, [named] Branch, [Town 1].

    ·Copy and translation of a document titled ‘Invitation for [specified] celebration’. The date of the event is recorded as [date] January 2013. A program is attached to the document, listing the names of speakers at the event.

    ·A translated document titled ‘Extract from the information book of [Town 1] Police station’ dated [in] March 2011. This appears to be a record of a statement made by the applicant to the police reporting that he had lost his identity documents, including his driver’s licence during a visit to Colombo in February 2011.

    The interview

16. The applicant attended a protection visa interview with the Department on 4 February 2013. The interview was conducted with the assistance of an interpreter in the Tamil and English languages. Where relevant, the applicant’s oral evidence to the delegate is referred to in the Tribunal’s analysis below.

    The delegate’s decision

17. The delegate accepted that the applicant was an active TNA member. She also accepted that he had received a threatening phone call and that his property had been damaged. The delegate, however, was not satisfied that the applicant had held a significant leadership role in the TNA. On the basis of country information before her at that time, the delegate found that TNA members with the applicant’s profile would not be targeted for serious harm by paramilitary or political opposition groups. The delegate was not satisfied that there is a real chance or a real risk that the applicant would be seriously or significantly harmed if he were to return to Sri Lanka.

    The review application

18. On 1 October 2013, the applicant applied for a review of the delegate’s decision and on 28 January 2014 he appointed [Ms B] from the Refugee Advice & Casework Service (RACS) as his representative.

    Pre-hearing submissions

19. On 28 January 2015, the Tribunal received a submission from [Ms B] in support of the review application. The submission essentially repeated the claims previously made by the applicant to the Department and provided the following additional information.

20. The applicant believes that the persons who were searching for him in Sri Lanka belong to opposition groups, such as the Pillayan group (also known as Tamil Makkal Viduthalai Pulikal (TMVP) or the Karuna group). They are connected to the United People’s Freedom Alliance (UPFA), the ruling party in Sri Lanka.

21. The applicant has been informed by his wife that ‘men’ have visited his house on two separate occasions in 2013 and December 2014. In 2013 they threatened his son and in 2014 they searched for his son, but he was ‘at class’.

22. The applicant fears harm ‘as someone known as a Tamil activist in Sri Lanka, supporting Tamil rights’. He fears harm from members of groups working against the TNA, namely the Pillayan and Karuna groups. He also fears harm ‘generally’ from Sarath Fonseka, the former commanding chief of the Sri Lankan Army who was given a full pardon following the 2015 elections and ‘is rumoured to be about to start renewed persecution against Tamils and Tamil activists in the future in Sri Lanka’.

23. The applicant is aware of acts of violence committed against and arrests of TNA activists around the 2015 elections. He fears that if he returns to Sri Lanka, he would not be free to engage in political activities in support of the TNA if he were to return to Sri Lanka. [Ms B] referred to one report relating to the arrest of three TNA members in Manipay for putting up posters in support of Maithripala Sirisena around the time of the 2015 elections and the attempted abduction of four TNA activists in Kilinochchi by Sri Lankan military operatives while they were on ‘a Sirisena propaganda mission’. [Ms B] also noted that the TNA unanimously extended their support to Maithripala Sirisena during the 2015 elections, despite the fact that he is from the majority Sinhala Buddhist community and previous reports that he had expressed animosity towards the Tamil community.

24. [Ms B] submitted that the applicant comes from the [named] Divisional Secretariat in [District 1], which is a predominantly Tamil area. Being from this area and having engaged in political activism would impute him with holding pro-Tamil political views. The applicant strongly believes that Tamils should be able to live freely without persecution or problems; and there should be democracy in Sri Lanka, in the sense that Tamils should be free to campaign and elect who they choose as the country’s leaders.

25. [Ms B] submitted that the Karuna group continues to operate in the Eastern part of Sri Lanka and is responsible for serious human rights abuses for political and criminal reasons. The Karuna group frequently harasses young Tamil men on suspicion of association with the Liberation Tigers of Tamil Eelam (LTTE). Opposition politicians and political activists are ‘a specific risk profile because of repeated attacks and harassment’. It was submitted that a person such as the applicant ‘would be perceived to be an opposition supporter due to his role in the 2008 elections and would be at risk of targeting because of this profile’. She contended that there is a real chance that the applicant would be seriously harmed by the Karuna group, and that state protection would not be provided to him. In addition, there is a real chance that the applicant would be subjected to detention and significant physical mistreatment by the Sri Lankan authorities upon his arrival at the airport. He is at particular risk due to other factors, including ‘the presence of his scarring’, and his illegal departure from Sri Lanka and applying for asylum abroad. She stated that the likelihood of the applicant being detained and seriously physically harmed, ‘as a person who was accused by the Karuna group of being involved in the LTTE, is more than remote’.

26. In support of these claims, [Ms B] referred to country information sources, including the US Department of State’s Country Reports on Human Rights Practices in relation to Sri Lanka, the 2012 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, UK Home Office reports from 2011 and 2012 and reports by Human Rights Watch and Amnesty international.

27. Under the cover of her submission, [Ms B] submitted a Declaration by the applicant, dated 28 January 2015, repeating his claims that he is at risk of persecution in Sri Lanka because of his Tamil ethnicity, his actual and imputed political opinion, his past political support for the TNA, and his perceived membership of the LTTE due to his support for the TNA.

    The first hearing

28. The applicant appeared before the first Tribunal on 6 February 2015. The hearing was conducted with the assistance of an interpreter in the Tamil and English languages. [Ms B] was also present. Where relevant, the applicant’s oral evidence to the first Tribunal is referred to in the Tribunal’s analysis below.

    Post-hearing submissions

29. On 11 February 2015, [Ms B] made a post-hearing submission to the first Tribunal, clarifying aspects of the applicant’s evidence and addressing the issues raised with the applicant at the Tribunal hearing.

30. [Ms B] clarified that only two men had visited the applicant’s house prior to his departure. In relation to the applicant’s claim that since coming to Australia men had visited his house in 2013 and 2014 and had spoken to and threatened his son, it was submitted that the applicant did not know the identity of the men, but he believed that they were from a Tamil group, namely the Pillayan or the Karuna group. It was further clarified that while the questions these men had asked his son where not threatening in content, the tone of the questions was threatening and that the men had an aggressive manner.

31. Regarding why the applicant in particular would be targeted in Sri Lanka, it was submitted that, according to the applicant, his entire family are TNA supporters, he has family links with ‘famous and significant TNA members’; he is known as a ‘TNA community activist’ in an area which has a 100% Tamil constituency; he has a history of ‘community activism and liaising with MPs on Tamil community issues’; he ‘can be responsible for bringing two busloads of supporters to a TNA conference upon request’; he believes that Tamils should be able to live freely without persecution or problems, including being free to campaign and elect who they choose as the country’s leaders without interference, and that there should be Tamil representation amongst members of parliament. It was submitted that if he were to return to Sri Lanka, the applicant would continue to work for the TNA and ‘campaign MPs on community issues’.

32. In relation to whether there have been further attempts to search for the applicant since his departure from Sri Lanka, it was submitted that the news that he had left Sri Lanka has become widely known and in Christmas 2013 his sister who lives in an adjacent home in the same compound was asked about his whereabouts. He does not know how the Pillayan and Karuna groups came to know that he had left Sri Lanka, but he believes that they could have easily sought information from members of the community and the general public.

33. It was submitted that the applicant was aware of the ‘current events’ in Sri Lanka, including the fact that the head of the Pillayan group, Sivanesathurai Chandrakanthan, better known as Pillayan, had been given a Ministerial post by the new government. As a Minister, Pillayan would have more power and the ability to use arms against his opponents. [Ms B] provided links to various local news articles, including an article referred to by the applicant at the first hearing in relation to the arrest of a man with links to TNA at the airport upon returning to Sri Lanka.

34. On 20 February 2015, the first Tribunal wrote to the applicant, inviting him to comment on information contained in a DFAT Country Information Report in relation to Sri Lanka, released in February 2015. In her response, dated 4 March 2015, [Ms B] submitted that the applicant remains at risk of persecution in Sri Lanka because of his Tamil ethnicity, his actual and imputed political opinion and political activities, including his support for the TNA and opposition to the Pillayan group or the Karuna group, who are linked to the UPFA and ‘his perceived membership of the LTTE because of his support of the TNA’. She expressed doubt in relation to the veracity of the sources relied upon by DFAT in its report and stated that the information provided by DFAT is sourced from the Sri Lankan government itself. She referred to DFAT’s 2014 Thematic Report in relation to people with links to LTTE, noting that amongst LTTE prisoners there are over 2000 LTTE suspects in Sri Lanka’s prisons and that people imputed to be associated with the LTTE are reported to have been abducted or disappeared since the end of the conflict.

    First Tribunal’s decision

    On 25 March 2015, the first Tribunal affirmed the delegate’s decision. The first Tribunal expressed concern in relation to the applicant’s credibility and found him not to be a witness of truth. The first Tribunal rejected the applicant’s claims and ultimately found that there is no real chance that he would suffer serious harm or a real risk that he would face significant harm if he were to return to Sri Lanka.

    Judicial review

35. As noted earlier, [in] 2018, the Federal Court remitted the matter to the Tribunal on the basis that the first Tribunal had failed to make enquiries in relation to the letter from [Alias A] MP and that this failure amounted to a constructive failure to exercise jurisdiction. The failure to make obvious enquiries which had the potential to have a material bearing on the applicant’s credibility and some of his political involvement, constituted, on the facts of this case, jurisdictional error.

    Consideration following the remittal

36. [In] 2018, the applicant appointed Mr Chellappah Ambikaipalan as his representative.

37. On 27 March 2019, the Tribunal wrote to the applicant inviting him to attend a hearing on 11 June 2019 to give evidence and present arguments relating to the issues arising in his case.

38. On 2 May 2019, the Tribunal received a request from the applicant’s representative for the hearing to be postponed until September 2019. The request attached a medical report advising that the applicant was scheduled to be admitted to [Hospital 1] on 6 May 2019. The report, however, did not include any other information to indicate that the applicant would be unable to appear at the scheduled hearing to give oral evidence. Nevertheless, the Tribunal decided to postpone the hearing until 28 June 2019. In writing to the applicant in this regard, the Tribunal noted that any further requests for a postponement must be accompanied by relevant documentation detailing the nature of any purported medical ailment and why it would render the applicant unable to attend the hearing.

39. On 3 June 2019, the applicant’s representative wrote to the Tribunal and requested that the hearing scheduled for 28 June 2019 be postponed until four or five weeks after 1 July 2019.

1. On 5 June 2019, the Tribunal wrote to the applicant to inform him that it was not prepared to postpone the hearing unless further substantive evidence was provided to the Tribunal detailing the nature of his medical condition and why he was unable to attend the hearing.

2. On 18 June 2019, the applicant’s representative forwarded to the Tribunal medical reports relating to the applicant and advised that the applicant was not in a position to attend the hearing scheduled on 28 June 2019 due to his post-surgery symptoms. Mr Ambikaipalan stated that the applicant was due to undergo a further procedure on 1 July 2019 and requested that the hearing be postponed for five to six weeks. The Tribunal agreed to postpone the hearing.

3. On 20 June 2019, Mr Ambikaipalan made a submission to the Tribunal, repeating the claims the applicant had previously made to the Department and to the first Tribunal. It was submitted that the applicant maintains his claim to fear persecution for reasons of his past involvement with the TNA, his Tamil ethnicity, and for having illegally left the country, which has resulted in a long absence from Sri Lanka.

4. Mr Ambikaipalan stated that Sri Lanka has been in a state of emergency since the ‘Easter bombings’ on 21 April 2019 and there have also been a number of riots and anti-Muslim attacks, which have led to the applicant fearing ‘unjust persecution’ as he belongs to a minority group.

5. Mr Ambikaipalan stated that the applicant is fearful of what could happen to him if he returns to Sri Lanka, as the authorities have used ‘emergency regulation powers’ to arrest and torture Tamils suspected of being involved with the LTTE. The applicant also fears that he will be arrested and interrogated for his illegal departure. In addition, the applicant claims that the authorities are unwilling or unable to protect him. Mr Ambikaipalan attached a news article published by Al Jazeera News, in support of this claim. The article is dated 21 May 2019 and titled ‘In Sri Lanka, Muslims say Sinhala neighbours turned against them’.

6. Subsequently, due to other reasons, including restrictions imposed as a result of the COVID-19 pandemic, the Tribunal deferred the scheduling of the hearing.

7. In light of this matter’s prolonged history, on 22 December 2020, the Tribunal wrote to the applicant inviting him to attend a directions hearing on 3 February 2021.

   Submissions to the Tribunal

8. On 25 January 2021, Mr Ambikaipalan made a submission to the Tribunal and provided updated country information on the situation in Sri Lanka, including reports by Human Rights Watch published in 2020, and references to a large number of online news articles published between November 2019 and October 2020.

9. Mr Ambikaipalan submitted that, after Gotabaya Rajapaksa was elected as president on 16 November 2019, he amended the constitution to reduce the power of minority political parties and announced that the cabinet would withdraw a proposed replacement law for the Prevention of Terrorist Act (PTA), which has been associated with the use of torture, harassment, arbitrary arrest and detention by law-enforcement bodies in Sri Lanka. It was submitted that, since 1 April 2020, there have been a number of incidents where individuals have been arrested under the PTA without charge and without being produced before a Magistrate.

10. Mr Ambikaipalan expressed disagreement with the contents of DFAT’s 2019 Country Information Report in relation to Sri Lanka regarding the low risk of harm and harassment faced by returned asylum seekers. The submission also referred to a December 2019 SBS news article regarding the experiences of returned asylum seekers from Australia, including being subjected to court appearances. It was submitted that the applicant fears being subjected to ‘numerous court appearances’ and being ‘continuously monitored by the authorities’, putting him and his family’s safety at risk.

11. Mr Ambikaipalan stated that, contrary to the findings of DFAT’s report, there has been ‘clear discrimination’ against Tamil communities since President Rajapaksa was elected. The submission referred to examples from the 2019 and 2020 Memorial Day celebrations and attempts by the Sri Lankan authorities to ban the commemorations and to ‘silence the Tamil community’. It was further submitted that in September 2020, the Sri Lankan police obtained a court order, prohibiting all protests in Thileepan, and in November 2020 the courts of Vavuniya and Mannar issued restraining orders against anyone trying to commemorate the LTTE.

12. The submission further noted that since the spread of COVID-19, the Sri Lankan police have issued orders to arrest those who criticise officials involved in the response to the spread of the virus. It was submitted that this has caused concerns amongst minority groups in Sri Lanka in relation to limitations being placed on their civil and political rights, including freedom of speech and expression.

13. The Tribunal also received a statement from the applicant, dated 25 January 2021. The applicant stated that he has suffered various illnesses and mental distress since 2012. He continues to suffer from kidney malfunction and requires an operation. He is still in contact with his wife and [number] children, who he left in his village in ‘very trying and difficult conditions’ and who are ‘still suffering’ as a result of his political past. He stated that his family have insisted that it would be too dangerous for him to return to Sri Lanka, as the Eastern province is still facing ‘political rivalry’ and returned failed asylum seekers face continued problems from the Sri Lankan authorities. There are army camps in every corner of Batticaloa, and young Sinhalese soldiers constantly harass Tamils who have returned to Sri Lanka. He further stated that due to the pandemic, his family are in lockdown, travel is restricted in the Eastern province, and there is an economic standstill in his family’s area. He stated that he asked his wife to send him documents from the local MP to support his case, however, it has been difficult to obtain these documents during the pandemic.

14. The following documents were also submitted to the Tribunal:

    ·Two medical certificates from [Dr C], dated 14 and 17 June 2019. [Dr C] stated that the applicant underwent a surgical procedure [in] May 2019 at [Hospital 1] for ‘nephrolithotomy, cystoscopy and insertion of uretic stent.’ [Dr C] also noted that the applicant is distressed and worried about his medical issues and is not in a position to attend the Tribunal hearing scheduled for 28 June 2019.

    ·Hospital discharge records in relation to the applicant’s stay at [Hospital 1] from 6 May 2019 to 9 May 2019, for treatment following an operation (Cystoscopy, left RPG, JJ stent, Open Pyelo/Nephrolithotomy).

    ·A letter from [Hospital 1] dated 29 May 2019 confirming the applicant’s hospital admission date for 1 July 2019.

    The second hearing and subsequent postponements

15. On 3 February 2021, the applicant attended an initial hearing by telephone. Mr Ambikaipalan also attended the hearing. At that hearing, the Tribunal explained to the applicant the procedural history of his case, the determinative issues and timeline for further submissions to be provided to the Tribunal.

16. On 25 February 2021, the Tribunal wrote to the applicant inviting him to attend a further hearing on 29 March 2021 to give evidence and present arguments relating to the issues arising in his case.

17. On 18 March 2021, the Tribunal received an email from Mr Ambikaipalan requesting a postponement of the hearing on the basis of the applicant’s mental health issue, including ‘serious anxiety and depression’. Mr Ambikaipalan provided a letter by [Dr D], dated 17 March 2021, stating that the applicant is not well enough to attend the hearing, and that he is commencing medication and counselling with the NSW Refugee Health Service. A referral letter was also provided.

18. On 25 March 2021, the Tribunal agreed to the request and advised that any further requests for postponement on the basis of the applicant’s mental health condition must be accompanied by medical evidence which specifies why the applicant would not be fit to attend a hearing, and when the applicant would be expected to be fit to attend. The hearing was rescheduled to 5 May 2021.

19. On 29 March 2021, the Tribunal received an email from Mr Ambikaipalan requesting that the hearing be rescheduled as Mr Ambikaipalan was not available on the scheduled date.

20. On 29 March 2021, the Tribunal wrote to the applicant, agreeing to the request for postponement and rescheduled the hearing for 4 May 2021. The Tribunal also informed the applicant that any further requests for postponement made on the basis of his mental health condition must be accompanied by appropriate medical evidence, setting out the reason or the reasons as to why he would not be fit to attend a hearing, and providing a timeframe for when he would be fit to attend.

21. On 6 April 2021, the Tribunal received a further request from Mr Ambikaipalan for the hearing to be postponed. In his correspondence, Mr Ambikaipalan stated that the applicant has recently commenced antidepressant medication and has been referred to STARTTS’ counselling services. Mr Ambikaipalan submitted a letter by [Dr D], dated 31 March 2021, stating that the applicant ‘suffers with severe anxiety and depression, recently diagnosed, related to war trauma and the deaths of several loved ones during the conflicts in Sri Lanka’, and ‘will need at least two months before any benefits from medication and counselling can be expected’.

22. In light of this submission, the Tribunal wrote to the applicant on 7 April 2021, agreeing to the request for postponement. In its letters, the Tribunal noted that the hearing has already been postponed on multiple occasions. It was further noted that the hearing would provide him with an opportunity to give evidence in support of his application and that as an important step towards the resolution of his case, the Tribunal hearing cannot be delayed indefinitely. The applicant was advised that no further postponement requests would be granted by the Tribunal on the basis of his mental health condition, unless the request is accompanied by a medical report outlining the reasons as to why he would be unable to attend a Tribunal hearing for the duration specified. The applicant was also reminded that, as discussed at the directions hearing held in February, the duration of any hearing would be set to enable him to have regular breaks to assist with his participation and that if any other adjustments were required, this must be outlined in supporting medical reports.

23. On 22 April 2021, the Tribunal wrote to the applicant to notify him that the hearing had been rescheduled for 7 July 2021. In its letter, the Tribunal referred to the contents of previous correspondence and stressed that no further postponement requests would be granted in the absence of appropriate medical evidence.

24. On 22 June 2021, Mr Ambikaipalan wrote to the Tribunal, requesting a further adjournment of the hearing until such time that the applicant is able to submit a ‘fitness report’ following a surgery for the removal of kidney stones and specialist treatment. A copy of a medical report by [Dr D], NSW Refugee Health Service, dated 16 June 2021, was attached to the email. [Dr D] stated in her letter that the applicant is waiting to see a specialist within the next 90 days and that it is likely that the specialist will recommend surgery to remove kidney stones. The letter stated that the applicant is very stressed and suffering severe post-traumatic stress disorder (PTSD) symptoms and asks that the hearing be postponed until he is ‘fit and well enough’ to attend.

25. On 25 June 2021, the Tribunal wrote to Mr Ambikaipalan advising that unless a comprehensive fitness report is provided, the Tribunal would not grant the request for postponement and will proceed with the hearing on 7 July 2021.

26. On 28 June 2021, the Tribunal wrote to the applicant advising that the hearing scheduled for 7 July 2021 has been postponed due to additional COVID-19 restrictions announced on 26 June 2021. The Tribunal also reminded the applicant that requests for future hearings to be postponed must be accompanied by a detailed medical or psychological report, preferably by STARTTS, outlining the reasons as to why he would be unable to attend a hearing of the nature specified in the Tribunal’s previous correspondence.

27. On 10 May 2022, the Tribunal wrote to the applicant, requesting information in relation to his availability to attend a hearing in the coming months.

28. On 25 May 2022 and 1 June 2022, the Tribunal received correspondence from Mr Ambikaipalan, attaching a medical report in relation to the applicant’s mental health and advising that his surgery to remove kidney stones is scheduled for October 2022. The medical report included a request to delay the hearing until after October 2022.

    The third hearing

29. 19 October 2022, the Tribunal invited the applicant to attend a hearing (the hearing) on 8 December 2022. The applicant was advised that as his hearing had been rescheduled on numerous occasions in the past, the Tribunal would not agree to any further postponement requests without detailed evidence, including medical evidence outlining the specific reasons why he would be unable to attend the hearing on the scheduled date and for the duration specified.

30. On 24 November 2022, Mr Ambikaipalan provided a submission to the Tribunal, outlining the applicant’s immigration history and summarising his protection claims. Mr Ambikaipalan also addressed the concerns raised in the first Tribunal’s decision and submitted that the first Tribunal’s findings on credibility should be rejected. It was further submitted that the applicant’s religion and race were not properly assessed in the delegate’s decision and that the applicant wishes to rely on these claims.

31. It was submitted that the applicant is an ethnic Tamil and that he is identifiable as a Tamil due to his appearance, language, and name. He is also ‘known personally by members of the community in Sri Lanka as an ethnic Tamil’. Tamils are subject to persecution in Sri Lanka due to their race.

32. In relation to the applicant’s ‘political affiliation’, Mr Ambikaipalan submitted that the applicant was an active member of the TNA and fears the Sri Lankan Government due to his past political activities, despite the resignations of the Rajapaksa brothers. He contended that their ‘replacements are supporters of the Rajapaksa brothers and have also been accused of human rights crimes, and the new President has too been described as a “tyrant”’.

33. Mr Ambikaipalan submitted that the applicant claims ‘he was significantly more involved in the process’ than what the delegate accepted, but even if his ‘full role in the TNA’ is not accepted, he would still attract the attention of the Sri Lankan authorities, and other political opponents, including the Karuna group and their associates.

34. Mr Ambikaipalan referred to a submission made by the applicant’s former representative in January 2015, stating that the applicant’s political opinion can be summarised as follows:

    ·Tamils should be able to live freely without persecution or problems; and

    ·There should be democracy in Sri Lanka, meaning that Tamils should be free to campaign and elect who they choose as the country’s leaders without interference.

35. Mr Ambikaipalan contended that these views ‘in general, align closely’ with the views of TNA, which is ‘often imputed with LTTE links’. Mr Ambikaipalan referred to a BBC report, dated July 2011, referring to TNA as a ‘proxy of the Tamil Tigers’. He submitted that being ‘Tamil alone is enough to be imputed with LTTE support’ and contended that the applicant’s activities as a member of TNA, including putting up posters, door knocking, attending meetings and speaking in public to garner support for the party would impute him with support for the LTTE.

36. Mr Ambikaipalan referred to previous DFAT reports and news articles regarding the actions of the Rajapaksa brothers when in office and their adverse impact on Sri Lanka and the Tamil community, including the increased presence of military in the north in 2021 and members of the Tamil community being ‘targeted for surveillance and questioning’, even those considered to be ‘low profile’. Mr Ambikaipalan acknowledged, however, that the government of Sri Lanka has again changed since the publication of DFAT’s 2021 report.

37. Mr Ambikaipalan stated that ‘past LTTE members are particularly targeted due to their relation to the war’ and referred to a report by the International Truth and Justice Project to contend that Tamils are targeted for the reason of their race. Mr Ambikaipalan further submitted that the applicant’s ‘religion is intrinsically linked with his ethnicity’. He inserted the following quote in his submission, which he attributed to the OHCHR’s ‘Preliminary findings of Country Visit to Sri Lanka by the Special Rapporteur on freedom of religion or belief’ dated 26 August 2019:

    increasing levels of hate speech, and security and policy measures, that appear to be discriminately and disproportionately directed against minorities, both Tamil and Muslim. (Emphasis added by Mr Ambikaipalan)

38. Mr Ambikaipalan also referred to the 2021 DFAT report which stated that police and government officials at the local level are predominantly Buddhist and are prejudiced against religious minorities.

39. With regard to the applicant’s claim that he would be returning to Sri Lanka as a failed asylum seeker, Mr Ambikaipalan referred to DFAT’s 2021 report, stating that in March 2021 ‘the Sri Lankan government modified the PTA to allow arbitrary administrative detention of individuals for up to two years without trial’ and that ‘In practice, this detention may be indefinite’. He also referred to information provided in the report as well as other sources in relation to the treatment of former members of the LTTE, including low-profile members.

40. Mr Ambikaipalan submitted that, as the applicant had departed Sri Lanka illegally, on his arrival ‘he will be referred to the CID and charged accordingly’ and that ‘penalties for departing illegally have a maximum penalty of up to five years and a fine’. He stated that there is a ‘real risk’ that the applicant ‘will be detained and sent to rehabilitation if he was forcibly returned to Sri Lanka. As he has significant injuries and is [age] (therefore ~[age] at the end of the civil war), it is highly likely he will be suspected of having a combat function.’
    Mr Ambikaipalan also referred to a number of other reports and news articles regarding detention of those fleeing Sri Lanka ‘amid economic crisis’, and certain groups, including Tamils, being vulnerable to torture and ‘crewmembers’ of boat ventures being targeted for prolonged detention.

41. Mr Ambikaipalan also referred to a number of sources, including the 2021 DFAT report and contended that the applicant would be at risk of torture if he were to be detained in Sri Lanka. He also contended that the applicant has ‘an acute fear of the repercussions of his shunning of the Karuna group’. He stated that ‘the individuals who kidnapped and tortured the applicant still likely remain in Sri Lanka, and they likely still act with impunity.’ He went on to submit:

    [Due] to his past torture, the applicant has visible scars. An individual of the applicant’s age, of Tamil ethnicity, who has fled, is likely to be assumed to have had a combat function. This will increase his chances of being detained.

42. Mr Ambikaipalan further submitted that the applicant would be perceived to be wealthy or have acquired wealth due being in Australia for over 10 years and if forced to return to Sri Lanka, he would be ‘followed, targeted, kidnapped and extorted’. Government organisations are now likely to focus their attention on wealthy Tamil families, particularly in view of the current economic situation and political crisis in Sri Lanka. In addition, he would have ‘a noticeable Australian accent’ when speaking Tamil and his ‘habits, voice and sensibilities’ will draw attention. The applicant should be considered as a member of ‘a particular social group’ of perceived wealthy Tamils and would face ‘a real risk of significant harm’ due to this. Mr Ambikaipalan submitted that Sri Lanka has declared bankruptcy and is no longer serving its debts and that there are shortages in medicine, food and fuel. In addition, political violence is on the rise affected by COVID-19 and economic mismanagement. Furthermore, Mr Ambikaipalan submitted that ‘brutal images have emerged of murdered parliamentarians, ransacked buildings and violent rallies’. Mr Ambikaipalan also noted that the Sri Lankan government is ‘likely to impute the applicant with LTTE links and anti-government sentiments’ and that the applicant will attract attention at the airport.

1. Mr Ambikaipalan submitted that the applicant’s ‘fragile mental and physical health’ should be considered in assessing risk of harm. The applicant suffers from ‘hypertension, post traumatic stress disorder, resulting in both depression and anxiety and serious and ongoing kidney stones’. Mr Ambikaipalan submitted that his anxiety and depression will result in a ‘marked increase in his subjective fear’ which will ‘greatly limit his ability to seek health care ... mental health support, to access employment and to tolerate his stay in Sri Lanka’. It was submitted that the ‘monitoring and harassment that he will suffer will exacerbate his symptoms and will greatly impede on his ability to function in society’. Furthermore, Mr Ambikaipalan submitted that there is a stigma attached to mental health and that the ‘stigma deters sufferers from seeking treatment’ and that there are a ‘limited number of qualified psychologists and psychiatrists and that there is only one hospital dedicated to mental health operations’.

2. Mr Ambikaipalan stated that, as the applicant has serious kidney stones that require frequent surgery and specialised medical treatment, any detainment would cause him serious harm as ‘he cannot stay seated for long periods of time and experiences jolting pain’ and that he is unlikely to be provided appropriate medical care upon his return.

3. Under the cover of the submission, Mr Ambikaipalan forwarded to the Tribunal copies of medical documents previously provided, a letter from the applicant’s wife, [Ms E], dated 24 February 2021, and an undated letter from [Mr F], Member of Parliament representing [District 1].

4. In her letter, the applicant’s wife stated that her husband fled Sri Lanka in early 2012 by boat ‘out of fear for his life’ if he remained in Sri Lanka. She stated that her husband parted from her and their children and this was the ‘most painful and fearful decision of their lives’. She still fears for his safety if he returns to Sri Lanka due to recent ‘escalated threats to all those who were formerly involved in Tamil political parties’ and a ‘main rival’, Pillayan, ‘who saw to many attacks and deaths of rival group members’ (sic). Pillayan was sentenced by Sri Lankan courts for the murder of her husband’s former political leader, Mr Joseph Pararajasingham, and has been recently released by the current ‘totalitarian and racist government’. [Ms E] stated that the current government is ‘hell bent’ on supressing minority rights, prosecuting past Tamil political activists, in particular those who secretly fled Sri Lanka. She believes the intention of the government is to supress ‘all minority equal rights and equal freedoms in Sri Lanka and to deter minority democratic political activists.’ [Ms E] stated that she has recently received threatening phone calls from ‘anonymous sources’ enquiring as to her husband’s whereabouts and when he would be returning. She was told not to report the threats to ‘authorities, human rights activists or media’. Because of this, she is ‘living in fear’ and she is ‘too scared’ to report these threats to police because they are ‘biased’ and ‘working with the government in supressing dissent and the minority voices’ as evidenced by ‘the mass civilian protests’ in the Eastern and Northern Provinces of Sri Lanka in February 2021. [Ms E] expressed concern for her husband’s health and well-being.

5. In his letter, [Mr F] stated that he has ‘known [the applicant] for several years’ and is aware of ‘the life-threatening circumstances that he faced in Sri Lanka which led to him fleeing to safety to Australia.’ He also knows the applicant’s family members and village people, in Sri Lanka. [Mr F] stated that from his perspective, the applicant’s case is ‘genuine’ given his ‘past involvement with Tamil political activists and the current environment of impunity and totalitarianism’. He stated that ‘some of’ the applicant’s ‘former political party rivals are now freely roaming again in the village and there is an extremely high possibility that they may resort to violence targeting [the applicant]’. He stated that the political leader the applicant was ‘strongly associated with’ was assassinated and that those accused of his murder are now at large in the community. There are also many army posts in the applicant’s village area and they can be ‘very hostile towards returnees from overseas’.

6. Mr Ambikaipalan also submitted the following medical evidence:

   ·Copy of a medical report by [Dr D], dated 9 November 2022, stating that the applicant suffers from severe kidney stones. Despite having surgery a few years ago, the stones have reappeared, and he is on a waitlist for further surgery at [Hospital 2]. He also has high blood pressure and suffers from the mental health impacts of ‘the trauma from his experiences in Sri Lanka which have been compounded by many years of visa uncertainty in Australia, the lack of financial and housing security… and the prolonged strong fear of being returned to the unsafe conditions he is exposed to in Sri Lanka’.

   ·A Summary of Treatment report by [Ms G], Direct Services Counsellor/Social Worker, STARTTS, dated 24 November 2022. [Ms G] stated in her report that the applicant has been engaged with STARTTS for counselling on an intermittent basis since May 2021. The applicant had attended four sessions in 2021 before being discharged. However, he was again referred to the service in March 2022 due to the deterioration of his mental health and has attended eight sessions since then. [Ms G] stated that the applicant struggles with the ongoing separation from his wife and [number] children and fears for his safety if he were to return. He has also reported ‘hypervigilance owing to the ongoing uncertainty regarding his future’ and being highly anxious about his upcoming hearing. In the course of psychometric assessment conducted in May 2022, the applicant reported symptoms of anxiety and depression, as well as symptoms of PTSD. [Ms G] expressed the opinion that being able to be reunited with his family in a safe environment would be highly beneficial to the applicant’s mental health and overall psychosocial functioning.

7. On 8 December 2022, the applicant appeared before the Tribunal in person. Mr Ambikaipalan also attended by video. The applicant was assisted by an interpreter in the Tamil and English languages. Where relevant, the applicant’s oral evidence to the Tribunal is referred to in the Tribunal’s analysis below.

   Post-hearing submissions

8. On 27 January 2023, Mr Ambikaipalan made a submission to the Tribunal referring to the issues raised at the Tribunal hearing held on 8 December 2022. Mr Ambikaipalan referred to an attack on the office of a Member of Parliament, which was first raised by the applicant at the hearing. Mr Ambikaipalan stated that the attack had occurred on 6 December 2022 and two days prior to the hearing. He submitted that the incident demonstrates that ‘political attacks continue, especially on those who speak out against the current government’.

9. Mr Ambikaipalan stated that he had made an error in his previous submission by referring to the applicant facing difficulties posed by the TMVP and the Karuna group. The applicant, however, had explained to him that ‘his difficulties were from the Pillayan faction of the TMVP, not the Karuna faction’. Mr Ambikaipalan provided a brief history of the establishment of the TMVP and subsequent fictionalisation. He stated that the applicant considers the Pillayan group to remain a threat. Pillayan himself was charged with murder, but these charges were dropped in January 2021, and he was appointed as the Minister for Rural Roads Development. He therefore continues to ‘exert’ power in eastern Sri Lanka.

10. Mr Ambikaipalan submitted that the applicant is a Sri Lankan Tamil who was involved in ‘pro-Tamil politics’ towards the end of and after the civil war. The applicant ‘joined politics around 2000’ and was involved with the Ilankai Tamil Arasu Kachchi, consisting of several smaller Tamil political parties. The applicant’s sister was a close friend of the former MP, [Alias A], who was the applicant’s ‘direct leader’ within the party. [Alias A] provided a letter to the applicant in 2012 which was previously submitted to the Department. Mr Ambikaipalan explained that, in his evidence to the Department, the applicant did not mean to suggest that he first became involved in politics in 2012. Rather, this was when ‘the major incidents occurred’. Prior to these incidents, he was ‘a colleague’ of Mr Joseph Pararajasingham, MP, who was assassinated in December 2005 and had ‘experienced violence throughout his time in Sri Lanka’.

11. Mr Ambikaipalan submitted that the applicant fits the profile of those who ‘were involved in politics in Sri Lanka’ and ‘actively advocate for Tamil Statehood’. As such, he is at an increased risk of facing harm upon returning to Sri Lanka. Mr Ambikaipalan referred to the 2021 DFAT report identifying Tamils who would be of particular interest to the authorities.

12. Mr Ambikaipalan referred to the Tribunal’s discussion with the applicant at the hearing regarding the nature of the detention he would be likely to face upon his arrival should he return to Sri Lanka and submitted that the applicant’s profile ‘would greatly increase his chances of being detained on return for a period of time’ and expose him to ‘persecutory treatment’.

13. In support of his submission, Mr Ambikaipalan provided a document containing the applicant’s comments in relation to specific issues raised with him at the hearing. He also submitted a video ‘snippet’ from a 6 December 2022 television news broadcast in the Tamil language regarding an attack on the office of [Mr F], MP and written translation of the purported report, as well as copies of documents previously submitted to Department.

14. He also forwarded to the Tribunal a letter from [Alias A] (spelt [Mr A] in the letter), dated 24 January 2023. In his letter, [Alias A] stated that the applicant is a ‘strong supporter’ of TNA and that he was involved in ‘conversing’ for the TNA in the 2010 general elections. He stated that he recalled the applicant having joined TNA in 2000 and was an ‘active member in the later years until he fled the country’. [Alias A] stated that the applicant had ‘worked hard for the victory of Parliament election which was held on 2010 [and he] especially work hard for me because of that I won that election’ (sic). As a result, he was subjected to ‘intimidation’ and ‘unknown opponent groups’ searched for him and threatened his life. As a result, he fled the country.

15. In his covering email, Mr Ambikaipalan stated that [Alias A] is currently in hospital and unable to add his official seal and letterhead to the letter. Further, Mr Ambikaipalan asked the Tribunal to consider the current turmoil in Sri Lanka in assessing the applicant’s claims.

16. On 3 March 2023, Mr Ambikaipalan provided to the Tribunal a duplicate copy of the letter from [Alias A], dated 25 April 2012, which was also previously submitted to the Department.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The relevant law

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

18. 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).

100.   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.

1. 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’).

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

Analysis, reasons and findings

103.   For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

104.   The applicant has made a number of claims regarding his political affiliation, activities and experiences in Sri Lanka that have remained largely consistent throughout the process. Whilst the Tribunal has formed the view that the applicant has exaggerated certain aspects of his claims, it does not share the first Tribunal’s concerns in relation to the credibility of the his evidence regarding his experiences in Sri Lanka and considers any discrepancies arising in the course of the applicant narrating his claims at various stages over a period of some 11 years to be minor.

105.   According to the country information sources consulted by the Tribunal, election violence historically has been a feature of Sri Lankan politics. The high level of election violence in Sri Lanka has been explained by a variety of factors, including ethnic and religious conflict, militarisation of politics, multimember constituencies, and politicians’ reliance on ‘criminal gangs and thugs for their political survival’.[1] Armed Conflict Location & Event Data Project has reported that the period between Sri Lanka’s sixth and seventh presidential elections (2010–2014) was marked by increased political violence. During the 2010 presidential election, supporters of multiple major political parties engaged in election-related violence and there was a spike in the recorded number of riots and protests resulting in violence in 2012. This historical and contextual information lends credence to the applicant’s claims regarding his experiences in Sri Lanka between 2010 and 2012.

[1] See Bjarnegård, E, Håkansson, S, & Zetterberg, P, Gender and Violence against Political Candidates: Lessons from Sri Lanka, Politics & Gender, 18(1) 2022, 33–61. doi:10.1017/S1743923X20000471; and Melgard, E, Sri Lanka Elects: The Role of Ethnic and Religious Tensions, Tony Blair Institute for Global Change, 14 August 2015,  The Tribunal accepts that the applicant first joined the TNA (formerly known as the Ilankai Tamil Arasu Kachchi) in 2000. The Tribunal also accepts that the applicant’s family members are also supporters of the TNA. In his protection visa application, the applicant stated that it was not until 2010 that he became ‘more actively’ involved in politics by supporting the TNA and he told the delegate at the interview that prior to the election period he was not always involved. According to his oral evidence to the delegate at the interview and to the Tribunal at the third hearing, his activities increased at around the time of elections, namely the 2010 and 2012 elections. These activities included disseminating information in relation to TNA in his local area, speaking to the members of the public, putting up posters, distributing fliers, and organising and attending meetings and rallies.

107.   The applicant has also been consistent throughout the process in claiming that he had not experienced ‘problems’ before 2010 and that his problems started in 2012. The Tribunal accepts this evidence.

108.   The Tribunal accepts that, in 2010, the applicant was returning from a conference when members of the opposition party damaged his motorbike and broke the windows of his house. He did not experience any other harm on that occasion.

109.   The Tribunal further accepts that in 2012, the applicant had received a threatening phone call, warning him against attending a TNA conference on the following day. The Tribunal accepts that the applicant had attended the conference, which was disrupted by members of an opposition group, who damaged property and broke the windscreen of a bus. The Tribunal further accepts that on that same evening, two men went to the applicant’s house, searching for him. The applicant managed to escape and eventually travelled to Australia.

110.   In the context of the ethno-political volatility, tensions and violence in the aforementioned post-civil war period, it’s plausible that many had died, including two TNA activists in his area, who the applicant claimed were abducted and shot following his departure from Sri Lanka. It is also plausible that those who had stood in opposition to the TNA during the 2012 elections may have retained some adverse interest in the applicant for a relatively short period after he had left the country due to his involvement in the 2012 elections, which had resulted in the TNA’s victory. However, the Tribunal is not persuaded that those who had pursued the applicant for a short period during the 2012 elections and immediately prior to his departure from Sri Lanka, continue to have an adverse interest in him.

111.   In a submission provided to the first Tribunal on 28 January 2015, it was claimed that the applicant was informed by his wife that, following his departure from Sri Lanka, men had visited his house on two occasions: once in 2013, when the men spoke to the applicant’s son and threatened him and once in December 2014, when they searched for the applicant’s son ‘but he was at class’. In a submission to the first Tribunal following the first hearing, the applicant’s former representative noted that the questions the men had asked the applicant’s son in 2013 included ‘What are you doing?’ and ‘Are you studying?’, and that he did not know the identity of these men. She further clarified that, according to the applicant, while ‘the questions asked were not threatening in content, the tone of the questions was threatening and that the men had an aggressive manner in asking these questions, according to his family who reported this to him by phone’. It was also claimed in the submission that, in December 2013, the applicant’s sister, who lives in an adjacent home in the same compound, was asked about his whereabouts. However, in his oral evidence to the first Tribunal, in submissions provided following the first hearing, in his oral evidence at the third hearing and in submissions provided to the present Tribunal before and after that hearing, the applicant did not claim that after December 2014 anyone else had visited his house asking questions or threatening any member of his family. Nor did he claim that his son or any other member of his family had been subjected to harm on account of his political activities or profile.

112.   In support of the written submissions provided to the Tribunal on 24 November 2022, the applicant forwarded a letter from his wife, in which she claimed that she had recently received threatening phone calls from ‘anonymous sources’ enquiring as to her husband’s whereabouts and when he would be returning. At the third hearing, the applicant stated that his wife has received many calls but the last one was six months ago. The Tribunal put to the applicant that it was difficult to understand why anyone, including the Pillayan group, would continue to have an adverse interest in him or to direct threats towards him for the reasons he had provided. The applicant told the Tribunal that he did not know why he was being targeted, but he also stated that his home area is a Tamil area, he had worked actively in support of the TNA and had openly opposed the Pillayan group.

113.   As it was put to the applicant at the third hearing, more than 10 years had passed since his involvement in the provincial elections in 2012 and he did not enjoy a particularly high profile at that time. It was also put to him, and he acknowledged, that it was reasonable to assume that there are many TNA members and activists who have been engaged in political activities in support of the TNA at the same level as he was in Sri Lanka over the past decade in the course of both provincial and national elections. It was further put to him that the sources consulted by the Tribunal only point to isolated incidents involving the targeting of TNA members and supporters since 2013 by the authorities or opposition groups, including the Pillayan group.

114.   In its July 2013 Country Information Report in relation to Sri Lanka, DFAT referred to one incident involving an attack on a TNA political meeting in Kilinochchi in March 2013 by a group that included former LTTE members who were employed by the Civil Defence Force.[2] In October 2014, DFAT reported that provincial Council elections held in September 2013 in Northern Province were won by the TNA. The report noted that opposition parties engaging in political activities in the north, particularly the TNA, were subject to harassment and monitoring, and that the Commonwealth Observer Mission had reported a number of incidents of election violence prior to the provincial council elections, including an attack on the house of TNA candidate Ananthi Sasitharan which injured eight people.[3] By January 2015, TNA’s position had improved after Maithripala Sirisena defeated President Mahinda Rajapaksa in the presidential election. Following a ‘peaceful’ parliamentary election on 17 August 2015, the TNA was placed in a position to lead the opposition and TNA leaders attended the 2015 Independence Day ceremony for the first time since 1972.[4] DFAT’s subsequent reports, published in January 2017, May 2018, November 2019 and December 2021 did not contain any references to any incidents of harm or harassment being directed at TNA activists, members and supporters. Whilst the November 2019 report stated that following the civil war the TMVP was accused of harassing and intimidating its political rivals, including suspected former members of the LTTE and supporters of the TNA and UNP, the report also stated that ‘DFAT understands Tamils do not receive unwarranted attention from authorities because of their political involvement, including with the TNA and that there are no barriers to Tamil political participation.[5] DFAT’s December 2021 report did not contradict the earlier report.[6]

[2] DFAT, DFAT Country Information Report, 31 July 2013.

[3] DFAT, DFAT Country Information Report, 3 October 2014.

[4] DFAT, DFAT Country Information Report, 16 December 2015.

[5] DFAT, DFAT Country Information Report, 4 November 2019.

[6] See DFAT, DFAT Country Information Report, 23 December 2023.

115.   The applicant stated at the third hearing that there had been a recent attack on the office of a TNA MP, [Mr F]. Following the hearing, Mr Ambikaipalan provided to the Tribunal a video ‘snippet’ from a 6 December 2022 television news broadcast in the Tamil language regarding this incident. He also forwarded a written translation of the purported report. According to the translation, ‘a banner’ displayed in the MP’s office in Batticaloa was damaged, a poster attached to the banner was ‘torn and removed’ and that the police are investigating the incident. The report did not contain any information in relation to the identity of any alleged suspects. The applicant did not provide any other evidence to support the view that there is ‘ongoing violence’ against TNA members and activists and the Tribunal does not accept that this isolated incident, which appears to have been confined to damaging a banner, indicates that current and former members of TNA are at risk of harm by ‘political opponents’.

116.   The Tribunal has considered the purported letter of support from [Mr F], which the applicant submitted prior to the third hearing. As noted above, [Mr F] stated that he has ‘known [the applicant] for several years’ and is aware of ‘the life-threatening circumstances’ that forced him to escape in Sri Lanka. He expressed the opinion that the applicant’s case is ‘genuine’ given his ‘past involvement with Tamil political activists and the current environment of impunity and totalitarianism’. He also stated that ‘some of’ the applicant’s ‘former political party rivals are now freely roaming again in the village and there is an extremely high possibility that they may resort to violence targeting [the applicant]’. At the third hearing, the Tribunal questioned the applicant about the nature of his relationship with [Mr F]. The applicant stated that he has not met [Mr F] personally and that when he (the applicant) was involved with the TNA, [Mr F] was not involved in politics. [Mr F] had entered politics after the applicant’s departure from Sri Lanka. He added that [Mr F] knows his family and they had asked him to provide a letter of support. When it was put to him that the letter states that [Mr F] has known him for several years, the applicant stated that [Mr F] knows his (the applicant’s) parents. The Tribunal find the letter to be contrived and to contain information that is not reflective of [Mr F]’s actual or genuine knowledge of the applicant’s’ circumstances. The Tribunal does not place any weight on the letter and its contents.

117.   The Tribunal has also considered the applicants’ evidence that his former leader, Mr Joseph Pararajasingham, was shot dead in December 2005, that he was ‘collaborating very closely with the deceased’ and that he had ‘gone on record locally to condemn the Pillayan group’. The applicant, however, had not suffered any harm, let alone serious harm in the seven years following the assassination of Mr Pararajasingham for the reason of his association with the politician or for condemning the Pillayan group publicly. In line with his own evidence, his experiences in Sri Lanka in 2012 appear to be attributable to his more active involvement in the provincial elections in support of the TNA. The Tribunal does not accept that the Pillayan group or anyone else continues to have an adverse interest in the applicant for the reason of his past association with Mr Pararajasingham. Nor does the Tribunal accept the applicant’s claims in his written comments following the third hearing that he may be suspected of having made ‘statements of accusation about the Pillayan group to the Australian Government’. The applicant did not provide any other details in relation to these accusations. However, it is clear that he was referring to the claims and evidence he has put forward in connection with his protection visa application. On that basis, the applicant’s accusations against Pillayan and his group appear to be in relation to the murder of Mr Pararajasingham and his own experiences before his departure from Sri Lanka. With regard to the former, Pillayan’s role as one of the persons suspected of criminal responsibility for the murder of Mr Pararajasingham is a notorious fact, which has been widely reported over the course of a number of years. In relation to his own experiences, the applicant has consistently claimed that he never knew the exact identity of those who had an adverse interest in him, but he believed them to belong to the Pillayan group. Again, the involvement of the Pillayan group in human rights violations and election violence, particularly in the Eastern Province prior to 2015 is well known.[7] It is difficult to see why any ‘accusations’ made by the applicant would be of any concern to Pillayan or his group and the Tribunal does not accept his claims in this regard.

[7] See, for example, Thuggery Reappears In Eastern Election, Colombo Telegraph, 13 August 2012, The 2021 Country Reports on Human Rights Practices by the US State Department also refers to numerous allegations of abductions, child conscription, and other human rights abuses committed by Pillayan.

118.   It’s important to note that [Ms B]’s submissions to the first Tribunal contained a number of incorrect representations and claims in relation to the applicant’s circumstances and profile. For example, [Ms B] had submitted that the applicant ‘would be perceived to be an opposition supporter due to his role in the 2008 elections…’ As already noted, in his own evidence throughout the process, the applicant repeatedly referred to the 2010 elections and his role in the 2012 elections. At no point did the applicant claim to have played a role in the 2008 elections.

119.   [Ms B] also submitted that the applicant would be at particular risk of harm by the Karuna group due to other factors, including ‘the presence of his scarring’. These claims were repeated by Mr Ambikaipalan in his November 2022 submission, which also contained numerous incorrect representations. Mr Ambikaipalan had stated in his submission that the applicant has ‘an acute fear of the repercussions of his shunning of the Karuna group’; that ‘the individuals who kidnapped and tortured the applicant still likely remain in Sri Lanka, and they likely still act with impunity’; and that due ‘to his past torture, the applicant has visible scars’. Mr Ambikaipalan contended that ‘an individual of the applicant’s age, of Tamil ethnicity, who has fled, is likely to be assumed to have had a combat function’. These representations were clearly not reflective of or grounded in the applicant’s own claims and evidence in relation to his circumstances, experiences and profile. Mr Ambikaipalan acknowledged these errors and subsequently clarified that the applicant’s ‘difficulties were from the Pillayan faction of the TMVP, not the Karuna faction’. The Tribunal, therefore, does not accept that the applicant has any scarring, that he was kidnapped and tortured or that he had faced difficulties posed by the Karuna group. The Tribunal further rejects submissions on behalf of the applicant that he was accused by the Karuna group of being involved in the LTTE.

120.   In her submissions, [Ms B] also submitted on behalf of the applicant that he would be perceived to be a member of the LTTE due to his support for the TNA. She submitted that the applicant strongly believes that Tamils should be able to live freely without persecution or problems; and there should be democracy in Sri Lanka, in the sense that Tamils should be free to campaign and elect who they choose as the country’s leaders. These claims were reiterated by Mr Ambikaipalan in his submission of 24 November 2022. He submitted that these views align with the TNA which is ‘often imputed with LTTE links’. He stated in the same submission that the applicant’s activities as a member of the TNA would impute him with support for the LTTE.

121.   The country information sources consulted by the Tribunal, including the DFAT reports already referred to indicate that the TNA is the largest coalition of Tamil political parties and has been a significant political force representing the Tamil community in Sri Lanka. It has been actively advocating for the rights and interests of the Tamil community in Sri Lanka and has called for extensive devolution of powers and a political solution to address the grievances of the Tamil people. The TNA supports a political solution under a federal system in a united Sri Lanka[8] and has ‘vacillated between invocation of the struggle for Tamil liberation through non-violent means on the one hand and interactions with the Sri Lankan Government’.[9] The applicant has never claimed to harbour or espouse separatist views and as acknowledged by his representative, his political opinion and beliefs align closely with the objectives and policies of the TNA. The country information before the Tribunal does not support the view that the TNA, its members and its supporters are, as a matter of course, being imputed with LTTE links and harmed as a result. The Tribunal, therefore, does not accept that the applicant would be imputed with support for or links with the LTTE by the authorities or the Karuna and Pillayan groups merely due to his membership of and past activities in support of the TNA or for holding the beliefs referred to earlier, namely that Tamils should be able to live free of persecution and to freely campaign and participate in elections.  

[8] See United Kingdom: Home Office, Report of a Home Office Fact-Finding Mission. Sri Lanka: treatment of Tamils and people who have a real or perceived association with the former Liberation Tigers of Tamil Eelam (LTTE), 23 July 2016, Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), Sri Lanka: COI Compilation, 31 December 2016, International Crisis Group (ICG), Sri Lanka’s Transition to Nowhere, 16 May 2017, Asia Report N°286,

[9] Expert evidence cited in KK and RS (sur place activities: risk) Sri Lanka., United Kingdom: Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021.

122.   The Tribunal, nevertheless, is cognisant of the intricate complexities of the ethno-political landscape in post-war Sri Lanka and how the Tamil community as a whole continues to be impacted. Despite the end of the civil war, the current situation in Sri Lanka has only partially improved.[10] During the war, the Sri Lankan military occupied predominantly Tamil areas designated as ‘high-security zones’, and targeted the mostly Hindu Tamil population, which is concentrated in the northern and eastern parts of the country, through the operation of the PTA.[11] After the war, the security situation in the north and east greatly improved, but the military and security forces maintained a significant presence in Tamil areas to monitor anti-Government sentiment, any possible LTTE activity and any form of civil resistance. There was also monitoring and disruption of political activities by opposition Tamil political parties in the north and east.[12] Following the change of government in 2015, Tamils’ political influence, and their inclusion in political dialogue increased.[13] Under the Sirisena government, further improvements were achieved, including in relation to human rights and freedom of expression, and the monitoring and harassment of Tamils in day-to-day life had decreased significantly.[14]

[10] Nithyani Anandakugan, The Sri Lankan civil war and Its History, Revisited in 2020, Harvard International Review, 31 August 2020, The Sri Lankan civil war and Its History, Revisited in 2020 (harvard.edu).

[11] The fear inside us: Confronting Sri Lanka’s past, Aljazeera, 2 February 2018, The fear inside us: Confronting Sri Lanka’s past | Tamils | Al Jazeera.

[12] DFAT, DFAT Country Information Report, 31 July 2013.

[13] DFAT, DFAT Country Information Report, 4 November 2019.

[14] Ibid.

123.   This situation once again changed following the election of Gotabaya Rajapaksa as Sri Lanka’s President in November 2019 and the subsequent victory of his party, Podujana Peramuna (SLPP), in the parliamentary elections. In its December 2021 country information report, DFAT reported that the human rights improvements achieved under the Sirisena government, including in relation to freedom of expression, were being reversed. DFAT also referred to the increasing militarisation of the civilian government, the increasing use of the PTA to silence critics, and the 20th amendment to the constitution, which dismantled pro-transparency and accountability reforms introduced by the previous government and enhanced executive control over the legislature and judiciary.[15] The Sri Lankan military still occupies predominantly Tamil areas designated as high-security zones, though to a lesser extent than during the war, the PTA targets mostly Tamils and the Sri Lankan government continues to disenfranchise the Tamil community through the process of ‘Sinhalisation’.[16]

[15] DFAT, DFAT Country Information Report, 23 December 2021.

[16] Nithyani Anandakugan, The Sri Lankan civil war and Its History, Revisited in 2020, Harvard International Review, 31 August 2020, The Sri Lankan civil war and Its History, Revisited in 2020 (harvard.edu).

124.   In February 2021, Alan Keenan, Senior Consultant from the International Crisis Group (ICG), Stated:

The 2019 and 2020 elections marked more than the return to power of the Rajapaksa dynasty and its Sinhala nationalist policies. The votes confirmed that Sri Lanka is now firmly in the hands of its most nationalist and militarist elements. Their commitment to authoritarian, militarised governance and to the political and cultural supremacy of the Sinhala and Buddhist majority pose a growing threat to Sri Lanka’s battered democratic institutions and to its political stability...

The militarisation of government administration has led to an increase of state surveillance and harassment of civil society activists, particularly in Tamil-majority districts. With no independent sources of protection and impunity reaffirmed for the past murders and assaults of senior journalists, self-censorship and fear run high among media personnel and civil society activists across the island…

Meanwhile, long-running tensions between the Sinhala-dominated state and security forces and the Tamil ethnic minority continue to simmer. Although a return to violent militancy or terrorism appears unlikely, particularly in view of the state’s massive military presence in Tamil-majority districts of the north and east, animosity runs deep. Suffering from decades of political marginalisation and inequitable economic development, Tamils in the north east fear a slow but steady erosion of their cultural and demographic status in the region. With the military playing a direct role in district administration, and nationalist Buddhist practices given official state sanction, Tamils, like Muslims, are increasingly worried about further land seizures for military bases or Buddhist shrines and temples. Surveillance is tight and intimidation of political activists by police and military has increased. Small acts of resistance could easily turn violent and offer an excuse for the military to crack down and further entrench its power.[17]

[17] Alan Keenan, Senior Consultant, Sri Lanka, International Crisis Group, Commentary/Asia, ‘Sri Lanka: Prevention Should be at Heart of New Human Rights Council Resolution’, 25 February 2021, Sri Lanka: Prevention Should Be at Heart of New Human Rights Council Resolution | Crisis Group. 

125.   Similarly, DFAT reported:

The family’s return to government has seen greater centralisation of power in the executive branch and the increased militarisation of civilian government (such as the filling of civilian positions with former military officers). Some observers have called these measures ‘democratic backsliding’; the weakening of institutions that provide democratic accountability.[18]

[18] DFAT, DFAT Country Information Report, 23 December 2021.

126.   In 2022 Sri Lanka experienced an economic and political crisis, which led to the resignation of Mahinda and Gotabaya Rajapaksa, after protestors overran government buildings. Ranil Wickremesinghe replaced Mahinda Rajapaksa as Prime Minister in May 2022 and became President in July 2022 with the support of the SLPP, and appointed Dinesh Gunawardena Prime Minister on 22 July 2022.[19] Mr Gunawardena is also a member of the SLPP, as is most of the 20-member Cabinet. In September 2022 President Wickremesinghe expanded the ministry, appointing 37 new state ministers, all of whom are SLPP members and most held similar, or the same, positions in the Rajapaksa government.[20] Despite the resignations and reports that the new government has remained stable and has made moves towards improving relations with Sri Lanka’s Tamil community, it is too early to determine the full impact of these shifts on the Tamil population. 

[19] ‘Sri Lanka prime minister resigns, curfew imposed after clashes’, Reuters, 9 May 2022; ‘Sri Lanka names new PM in bid to address growing crisis’, Reuters, 13 May 2022; ‘Chaos Engulfs Sri Lanka as Protesters Demand Ouster of Interim Leader’, The New York Times, 13 July 2022; ‘Sri Lankan president hands in resignation after fleeing to Singapore’, Uditha Jayasinghe, Alasdair Pal and Chen Lin, Reuters, 15 July 2022.

[20] ‘Ranil expands govt. with 37 new State Ministers, draws backlash’, Meera Srinivasan, The Hindu, 8 September 2022, Ranil expands govt. with 37 new State Ministers, draws backlash - The Hindu; ‘Anger over bloated new Sri Lanka government’, Agence France Presse (AFP) - France, Radio France Internationale (RFI), 8 September 2022,

127.   As noted by Keenan, Gotabaya Rajapaksa’s first year in office saw the ‘rapid repoliticisation’ of the judiciary and police. Courts were pressured to end many of the criminal cases against members and close associates of the president’s family and some were back in senior government positions.[21] Amongst these figures was Pillayan. In his written comments in relation to specific issues raised with him at the hearing, the applicant stated that Gotabaya Rajapaksa was a ‘military tyrant’, who used his powers to pardon convicted criminals such as Pillayan, and the Pillayan group continues to enjoy immunity from the Rajapaksa regime. He further stated that the current President is ‘a puppet’ of and aligned with the Rajapaksa brothers. Regardless of President Ranil Wickremesinghe’s allegiances and Pillayan’s favourable treatment, as already noted, the Tribunal has found no persuasive evidence in sources consulted to suggest that the TNA members and supporters have been subjected to harm by the new government or the remnants of the Pillayan group for the reason of their involvement with the TNA.

[21] Alan Keenan, Senior Consultant, Sri Lanka, International Crisis Group, Commentary/Asia, ‘Sri Lanka: Prevention Should be at Heart of New Human Rights Council Resolution’, 25 February 2021, Sri Lanka: Prevention Should Be at Heart of New Human Rights Council Resolution | Crisis Group. 

128.   The Tribunal, however, accepts that the applicant would continue to express his support for and participate in activities in support of the TNA at the same level as he had previously if removed to Sri Lanka. The Tribunal accepts that his engagement in politics would extend to advocating for Tamil rights and campaigning for a free democratic process inclusive of Tamils. The Tribunal further accepts his oral evidence that he has participated in Tamil diaspora activities in Australia since his arrival, including ‘Maaveerar Naal’ or Heroes Day, which is observed on 27 November, commemorating fallen members of the LTTE.

129.   DFAT has reported that:

Members of Tamil community and NGOs report that authorities continue to monitor public gatherings and protest in the north and east, and practise targeted surveillance and questioning of individuals and groups.  Security forces are most likely to monitor people associated with politically sensitive issues, including those related to the war, such as missing persons, land release and memorialisation events.[22]

[22] DFAT, DFAT Country Information Report, 23 December 2021.

130.   In KK and RS, the UK Upper Tribunal noted that a returning Sri Lankan citizen would require a temporary travel document (TTD). It was also noted that prior to the return of an individual traveling on a TTD, the Sri Lankan government is reasonably likely to have obtained information on a number of matters, including whether the individual is associated in any way with a particular diaspora organisation or if they have attended a commemorative event such as Heroes Day.[23]

[23] KK and RS (sur place activities: risk) Sri Lanka., United Kingdom: Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021.

131.   According to DFAT, those who departed Sri Lanka illegally will be presented to Sri Lankan Immigration in Colombo upon returning to Sri Lanka. They are then interviewed by the Chief Immigration Officer. However, depending on the circumstances of their departure from Sri Lanka and their personal history, they may be interviewed by other agencies including CID, Sri Lankan State Intelligence Service and Sri Lankan Navy Intelligence. These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. DFAT reports that those who have departed illegally will be referred to the CID at the airport and charged accordingly under the Immigrants and Emigrants Act (1948). Once charged they are taken to the courts at Negombo where they are bailed and released.[24] Whilst penalties can include a fine and prison, DFAT is not aware of a prison sentence being given to anyone for illegal departure by itself.[25] For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. DFAT reported that it was not aware of detainees being subjected to mistreatment during processing at the airport.[26] DFAT, however, assessed that Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their security risk profile. 

[24] DFAT, DFAT Country Information Report, 23 December 2021.

[25] Ibid.

[26] Ibid.

132.   On the basis of the evidence before it, the Tribunal finds that there is more than a remote chance that the applicant would come to the attention of the Sri Lankan authorities if removed from Australia due to his illegal departure from Sri Lanka and his length of time out of the county. The Tribunal also finds that there is a real chance that the applicant’s participation in Tamil commemorative events in Australia and his past links to the TNA would be known to the authorities in Sri Lanka. The Tribunal, therefore, is satisfied that, in addition to being interviewed by immigration officials, there is a real chance that the applicant would also be detained and questioned by other agencies. In these circumstances, the Tribunal cannot rule out as remote the applicant’s chance of being subjected to mistreatment if detained. According to DFAT, whilst the risk of torture perpetrated by either military, intelligence or police forces has decreased since the end of the war, it is still used, including as a routine tool of policing.[27] DFAT adds that it is difficult to determine the exact prevalence of torture in Sri Lanka as few reports of torture are verified within the country due to the lack of investigative avenues. However, multiple domestic and international sources consider it to be common. DFAT assessed that Sri Lankans detained by the authorities face a moderate risk of torture and that this is especially the case for those who are perceived to challenge the government.[28]

[27] DFAT, DFAT Country Information Report, 23 December 2021.

[28] Ibid.

133.   Based on the above factors considered cumulatively, the Tribunal finds that there is a real chance of the applicant being subjected to serious harm, including significant physical harassment and/or ill-treatment if he were to return to Sri Lanka now or in the reasonably foreseeable future. In reaching this view, the Tribunal has placed weight on the applicant’s numerous physical and mental health issues, which are likely to exacerbate the impact of any period of detention, the length of questioning and the mistreatment he is likely to be subjected to.[29] The Tribunal finds that the applicant’s imputed political opinion and his ethnicity are the essential and significant reasons for his fear of persecution. The Tribunal finds that the persecution the applicant fears involves systematic and discriminatory conduct, in that it is deliberate or intentional and involves selective harassment for a Convention reason. The Tribunal is satisfied that the applicant does not have adequate and effective state protection available to him as the harm he fears is from state actors.  

[29] See AGA16 v MIBP [2018] FCA 628 where the Court accepted the proposition that in assessing the seriousness of harm, it is necessary to have regard to personal attributes such as age and frailty, as well as personal vulnerabilities: at [35]. See also SZTEQ v MIBP (2015) 229 FCR 497; SZBQJ v MIMIA [2005] FCA 143; SZBBP v MIMIA [2005] FMCA 5; and VBAO v MIMIA (2006) 233 CLR 1.

134.   The Tribunal has considered whether the applicant would be able to relocate within Sri Lanka to avoid the harm he fears. In the applicant’s circumstances he would be returning to Sri Lanka having left illegally and as a failed asylum seeker. As the Tribunal considers that the applicant is at risk of persecution by the authorities immediately upon or shortly after his return to Sri Lanka, the issue of relocation to avoid the harm he fears does not arise. Therefore, the Tribunal is satisfied that the applicant’s fear of persecution is well-founded. As the Tribunal has found that the applicant has a well-founded fear of persecution for the reasons provided, the Tribunal does not consider it necessary to assess other protection claims arising from his evidence.

135. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s 36(2)(a).

DECISION

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

Shahyar Roushan
Senior Member

^[21] DFAT, DFAT Country Information Report, 23 December 2021.