1812860 (Refugee)

[2023] AATA 2633

1812860 (Refugee) [2023] AATA 2633 (26 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Anthony Nicholas SILVA (MARN: 9901579)

CASE NUMBER:  1812860

COUNTRY OF REFERENCE:                   Sri Lanka

DEPUTY PRESIDENT:  Antoinette Younes

DATE:26 June 2023

PLACE OF DECISION:  Sydney

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

Statement made on 26 June 2023 at 10:24am

CATCHWORDS

REFUGEE – Protection Visa –Sri Lanka – race – Tamil ethnicity – having worked in LTTE controlled areas as a nurse – actual or imputed political opinion – a member of the Tamil National Alliance – a perceived sympathiser/supporter of the LTTE – membership of the particular social group – a failed seeker of refuge – a nurse who provided medical assistance to Tamils injured by conflict in areas that had been under LTTE control – inconsistent evidence – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 91, 499

Migration Regulations 1994, Schedule 2

CASES

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 22 August 2012 and the delegate refused to grant the visa on 18 October 2012.

3. This matter was before the Tribunal (differently constituted) on two previous occasions.  On the last occasion and on 29 March 2018, the matter was remitted by the Federal Court to the Tribunal for reconsideration.

4. The applicant appeared before the Tribunal on 4 May 2023 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

5. The applicant was represented in relation to the review.

   RELEVANT LAW

6. The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, 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.

   Refugee criterion

7. 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).

8. 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.

9. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

10. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

11. Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

12. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

13. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

14. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

15. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

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

    Complementary protection criterion

17. 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’).

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

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

    Mandatory considerations

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Entry interview on 11 June 2012

21. On 11 June 2012, the applicant was interviewed by an officer of the Department.  A record of this interview (‘the entry interview’/EV) appears on the Department’s file.  In this interview, the applicant confirmed that:

    ·He was born in [Town 1] in the Eastern province of Sri Lanka.

    ·He was a qualified nurse and between 1993 and 2008, he worked at [a] hospital in [Town 1].  In 2008 he worked for a year at [another] hospital at [Town 1] before returning to work at the [previous hospital] at [Town 1] until May 2012.   Prior to leaving Sri Lanka, he lived on [a] [Road].  His wife, two children, his wife’s sister, his niece, his mother-in-law and father-in-law lived at this address.

    ·He unsuccessfully applied for a visa to travel to Australia in March 2012. He wanted to go to a [event], but did not have sufficient funds.  He travelled to [Country 1] for a wedding in March 2011 before returning to Sri Lanka.

    ·When asked about why he left Sri Lanka, he did not mention the claims made in his Protection visa application that he was detained and tortured by the Sri Lankan authorities between 2009 and 2010[1].

    [1] In accordance with s424AA, this was put to the applicant by the previous Member in matter 1509813.

22. In support of the application for a Protection visa (APV), the applicant provided a statement, dated 22 August 2012 in which he made the following claims:

    A.He was born on [date] in [City 1], Sri Lanka.  He is a Christian of Tamil ethnicity.  He is married and has children who live in Sri Lanka.  He left Sri Lanka illegally in early 2012 to seek protection.  He arrived in Australia on [date] May 2012 and he fears returning to Sri Lanka.

    B.He is a nurse by profession and whilst he was working in [a] Hospital in 1995, he volunteered to join [ORGANISATION 1] as a nurse.  From 1995 until 2005, he worked for the [ORGANISATION 1] on a casual basis and the majority of his work was done in LTTE-controlled areas.  His work with the [ORGANISATION 1] finished in 2005 when the civil war started. 

    C.During the period from February 2007 until May 2008, he worked in [Town 2] hospital, formally controlled by the LTTE.  On his workdays, he used to commute from [Town 1] to [Town 2], which is an LTTE dominated area.  He was repeatedly targeted by military groups such as the Karuna group (KG), Pillayan, and the Sri Lankan Army (SLA), and this mostly happened when he was travelling to and from work.  He was physically assaulted, interrogated, and accused of being associated with the LTTE.  Due to this constant harassment, he stopped working at [Town 2] in May 2008.

    D.On 28 October 2008, his brother-in-law was abducted by the KG.  He was an [Occupation 1] and was involved in human rights activities.  His death certificate was issued without his body being recovered.  His wife and children lived in the applicant’s house. 

    E.He suffered harm from 2009 to February 2011.  He was taken by the SLA and other paramilitary groups more than 15 times.  On each occasion, he was blindfolded, taken to military camps, detained for 7-8 days, interrogated about his past activities and medical clients, and tortured. 

    F.From February 2011, he decided to stay at nights in the hospital where he was working and his wife brought him food from the house which was not too far.  He lived in constant fear but he could not relocate to other parts of Sri Lanka because persecution of Tamils occurs across all Tamil inhabited areas in Sri Lanka.  It is also a requirement to register when moving into a new area and that would have raised suspicion.   

    G.He fears harm on the basis of his Tamil ethnicity, having worked in LTTE controlled areas as a nurse, and past harm.  The Sri Lankan authorities would not protect him.

23. In submissions accompanying the original application, the representatives noted that the applicant believed that he would be harmed because he was a Tamil and that for this reason he would be subject to general discrimination and persecution at the hands of the Sri Lankan authorities.  They claimed that his fear of harm was aggravated by the fact that he had worked in LTTE-controlled areas as a nurse and had subsequently come to the attention of the Sinhalese authorities who had repeatedly detained, harassed, tortured and interrogated him.

24. The applicant was interviewed on 28 August 2012 in relation to his protection claims.  During that interview, the applicant told the delegate that:

    ·   When he travelled through SLA checkpoints on the way to LTTE controlled areas he did so with official papers and stayed close to foreigners so he would not be mistreated by the SLA. He was treating people generally for medical issues and it was possible they were LTTE members.

    ·   From February 2007 to May 2008, he worked in [Town 2] hospital. His daily commute to work took him to a number of checkpoints operated by the SLA and other paramilitary groups such as the KG and the Pillayan.  At those checkpoints, he was routinely assaulted, questioned and accused of having an association with the LTTE because he was working in [Town 2] in an area formerly controlled by the LTTE.  As a result of that treatment, he transferred to [Town 1] hospital in May 2008. 

    ·   Between January 2008 and December 2011, he was taken from home more than 15 times. Each time he was held for 2-3 days at the camp and on the last occasion he was kept for 8-10 days. His captors were plain-clothed men but, from the way they spoke, he understood they were from the SLA.  While in detention,  he was beaten with a plastic pipe and threatened with death if he did not tell them the truth when asked about his association with the LTTE.  On each occasion, he secured his release by begging and pleading with his captors and he was released.

    ·   Community leaders spoke to him about his work with [ORGANISATION 1], asking about how many people were wounded and the number of casualties. He believes that he may have been targeted by the military to stop him from providing this information. One other staff member, an ambulance driver, was missing and it was a result of his volunteering in the LTTE area.

    ·   On 28 October 2008, his brother-in-law was abducted by the KG in a white van.  His brother-in-law was targeted because of his involvement with human rights activities.

    ·   Since leaving Sri Lanka, his wife told him that their home has been visited by men in plain-clothes who searched their home.  His wife told the men that he had left Sri Lanka and he was not coming back.

25. The delegate identified vagueness and inconsistencies in the applicant’s account and reached a conclusion that the applicant had embellished aspects of his claims. The delegate, however, accepted a number of the applicant’s claims including being questioned at SLA checkpoints, possibly detained, and ill-treated.  The delegated, however, did not accept that the applicant was abducted as claimed.  The delegate concluded that the applicant could relocate to other parts of Sri Lanka to avoid the harm that he feared. 

    The first review - Matter 1216425

26. In submissions to the Tribunal dated 24 December 2012, the representative noted that the applicant feared persecution for reasons of his race (Tamil), his actual or imputed political opinion as a perceived sympathiser/supporter of the LTTE or as someone perceived as holding views in opposition to the current Sri Lankan Government or paramilitary groups operating in his area ‘like the TMVP (Karuna or Pillayan factions)’, and his membership of two particular social groups, ‘failed asylum seekers’ and ‘[a] nurse who provided medical assistance to Tamils injured by conflict in areas that had been under LTTE control’.

27. The representative also submitted that the circumstances of the applicant’s illegal departure from Sri Lanka and travel to Australia contributed to his fears that the Sri Lankan authorities and armed paramilitary groups operating in his area would perceive him as being a sympathiser or supporter of the LTTE and would target him accordingly.  The representative contended that the applicant’s fear of harm on return to Sri Lanka as a ‘Tamil failed asylum seeker from the East’ could similarly be considered as adding further weight to his fears of facing harm for reasons of his imputed political opinion.  It was mentioned that since the applicant’s departure from Sri Lanka, he heard from his wife that their home had been visited by men in plain clothes who had searched through their home.

28. The representative referred to ‘risk factors’ including his Tamil ethnicity, the fact that he came from the Eastern Province, the fact that he had worked for [ORGANISATION 1] in LTTE-controlled areas between 1995 and 2005, his family relationship with a Tamil who had been involved in human rights activities and who had been kidnapped and killed, his history of being targeted by members of paramilitary groups ‘including those tied to the Karuna and Pillayan factions of the TMVP’, his history of being targeted by the Sri Lankan Army on suspicion of a connection with the LTTE or of having provided assistance to the LTTE, his illegal departure from Sri Lanka and his having applied for asylum in Australia.  The representative cited country information reports.

29. The applicant attended a hearing before the Member on 2 January 2013.  Among other things, the applicant gave evidence relating to his work at the [Town 1] Hospital, being targeted because he had travelled to the LTTE-controlled areas and suspected of being involved in the LTTE’s activities, being questioned at about 150 to 200 checkpoints and ill-treated, being asked about helping wounded LTTE, being taken from his house by SLA officers and other paramilitary groups more than 15 times because of his previous involvement with [ORGANISATION 1] and his work in what had formerly been LTTE-controlled areas, being detained in January 2008 for two or three days or five days and beaten, being threatened by paramilitary groups such as the Pillayan group, the KG the EPDP (Eelam People’s Democratic Party), being detained in 2010 for about seven days and on other occasions, which impacted him both mentally and physically, the abduction of his brother-in-law (his wife’s sister’s husband), [on] 28 October 2008, and his travels in March 2011 to [Country 1] to attend a wedding.  

1. In post-hearing submissions dated 2 January 2013, it was argued that the applicant had never sought to claim that his work for [ORGANISATION 1] itself was the reason he was previously targeted in Sri Lanka or why he would continue to face a risk of targeting on his return. The submissions contended that the applicant attracted adverse attention for a number of factors, namely, he was a Tamil health care worker working for [ORGANISATION 1] in an area controlled by the LTTE at a time when there was conflict between the authorities and the LTTE. While the submissions acknowledged that the representative was unable to find any evidence of [ORGANISATION 1] workers being targeted in Sri Lanka, it did refer the Tribunal to an incident in which seventeen staff members of the international NGO, Action Against Hunger (ACF), were believed to have been executed by the SLA in their office in Muttur after the town became the centre of a fierce battle between the LTTE and government troops.[2] It was submitted that the Sri Lankan security forces have previously been suspected of targeting Tamil Sri Lankan Aid Workers.

   [2] BBC News, ‘ Sri Lanka’s forces accused of massacring aid workers’ (online 3 December 2013) <>

   In essence, although the Member accepted a number of the applicant’s claims, the Member did not accept that he was targeted by the SLA or paramilitary groups, or that he was physically assaulted, interrogated or accused of having an association with the LTTE because he was working as a government employee at the [Town 2] Hospital in an area which the government had recently taken control of from the LTTE.  Furthermore, the Member did not accept that the applicant was taken away from his house more than 15 times by Sri Lankan Army officers or paramilitary groups, detained, interrogated, or physically tortured.

   The second review - Matter 1509813

2. In submissions dated 15 February 2016, the representative contended that the applicant feared persecution from the authorities, law enforcement and military because of his race, his ‘political opinion and the political opinion imputed to him’, and his membership of a particular social group. It was argued that he had a well-founded fear of persecution because of:

   • His Tamil ethnicity;
   • Being from the Eastern province;
   • His history of working as a nurse for [ORGANISATION 1] in LTTE controlled areas between 1995 to 2005;
   • His family relationship with a Tamil who had been involved in human rights activities and had been kidnapped and killed;
   • His history of facing members of paramilitary groups including those tied to the Karuna and Pillayan factions of the TMVP;
   • His history of being targeted by the SLA on suspicion of his connection to the LTTE or as having provided assistance to the LTTE;
   • His illegal departure from Sri Lanka; and
   • Having applied in Australia for asylum.

3. The submissions contained generic content about refugee law in Australia, some of which is only applicable to applications for Protection visas lodged after 16 December 2014, and referred to the jurisprudence of Australian courts.  In essence, the submissions argued that the applicant had a well-founded fear of persecution because of his Tamil ethnicity, his political opinion, imputed political opinion as an LTTE supporter/sympathiser, membership of a particular social group, described as a ‘Tamil man from the east of the country who has been accused of acting as LTTE informant and couriers’.  

4. The submissions referred to a range of country information and provided a description of the applicant’s claims and introduced new claims:

   “…The threat to the applicant is personal and particularised given his status as a young Tamil male from the East of the Country who has had connections with members of the LTTE and is imputed to be a supporter by the police and in particular, the Criminal Investigation Division of the Police, Navy and Karuna Group. Should he be forced to return to Sri Lanka his previous profile would cause him to have to explain himself. He will also be of interest to the military and former militia groups whose leaders are members of the National and local government – in particular as a returnee from Australia he will be of interest to these groups because of his imputed connection to the LTTE, disobeying of orders to report to the police/CID, connections made in Australia with the Tamil diaspora that is feared in Sri Lanka and the possibility of extortion as a returnee from a wealthy country…” (pre-hearing submission, page 18).

5. During the hearing, the previous Member noted that the submissions contained information that did not appear to relate to the applicant. He agreed that as a man in his [age] it was not accurate to describe him as a young Tamil man.  The Member referred to the submissions that suggested that the applicant might be targeted for extortion as a wealthy Tamil.  He replied that extortion incidents do happen but he did not think it would happen to him. He noted that during the LTTE period, the LTTE used to charge everyone taxes.  It was further noted that the pre-hearing submissions referred to him being accused of acting as an LTTE informant and courier, but this appeared to relate to someone else, with which the applicant agreed. 

6. On 16 February 2016, the applicant appeared before the Member.  During the hearing, he provided a letter indicating he was a valued member of a nursing team, a picture of him working for [ORGANISATION 1], and some documentation in relation to his nursing qualifications. He also provided the Tribunal with some photos he had obtained from the internet accompanied by text in Tamil. He said that the photographs were evidence that torture was still happening in Sri Lanka in 2015.

7. As well as the previous claims, the applicant claimed that he was taken by the LTTE on two occasions, most recently in 2007, and required to provide medical services to LTTE fighters and that this caused him problems with the authorities. He also claimed that after he began working at [Town 2] hospital in around 2007 or 2008 (at which time the hospital was under government control), he discovered photographs of the shelling in that area and provided these photographs to the media.

8. During the hearing, the applicant claimed that he was a member of the Tamil National Alliance (TNA) and that there were incidents against TNA in the past.  He confirmed that he was not personally affected by those incidents or faced harm due to his support for the TNA.

9. In post-hearing submissions, the same issues were discussed and incorrect claims were repeated, such as the claim that the applicant will be persecuted as a Tamil man from the east of Sri Lanka who has been accused as acting as an LTTE informant. 

   The present review

10. In submissions dated 28 March 2023, the representative contended that:

    ·The applicant’s fear is well-founded. The applicant was targeted by the SLA and paramilitary groups because of his suspected link with the LTTE.  The applicant believes that he would be targeted in case of his return to Sri Lanka because of his past link with the LTTE due to the “fact (a) that he worked as a nurse in the LTTE controlled areas when on occasions he accompanied [ORGANISATION 1] and (b) that on two specific occasions he assisted the LTTE when they took him to attend to their wounded”.[3]

    ·The applicant worked as a nurse at a hospital in [Town 1] in 1995 until 2007.He worked as a volunteer for [ORGANISATION 1] from 1995 until 2003. 

    ·In 2007-2008, he worked at a hospital in [Town 2], an area previously controlled by the LTTE.  The LTTE took him on two occasions in 2007 to treat their wounded.  During his work at the hospital at that time, he discovered photographs of the shelling in the area.  There were a number of journalists visiting the hospital and he provided photographs of the shelling to two journalists whose names he does not recall. 

    ·During 2007-2008, he encountered problems when passing through government checkpoints; he was detained, interrogated, and tortured by various groups connected to the Sri Lankan government because of his suspected links with the LTTE.  He was also detained for a few hours at checkpoints on many occasions and he was struck with the butt of a gun in around 2008.  As a result of those events, he returned to [Town 1] around May 2008.

    ·In 2008, his brother-in-law, a human rights activist was abducted and the Sri Lankan government issued the death certificate a year later.

    ·At the end of 2010 or early part of 2011, he was abducted, detained for 7-8 days, interrogated, and tortured.

    ·From early 2011, soon after his abduction, he stayed overnight at the hospital where he worked, in order to avoid further abductions.  He felt that if he could stay within the hospital, the authorities or paramilitary groups would not come into the hospital to cause him harm.  Consequently, he did not go home after work and he stayed at the hospital accommodation, as there were other nurses.  He continued to stay at the hospital until he fled Sri Lanka.  Since his departure, his wife has reported that the SLA had searched their home.

    ·World Report 2023[4] referred to potential harm that could come to those who have been victims of past abuses. The applicant believes that in case of victimisation, he would not receive protection. The applicant fears past atrocities committed on Tamil people will not be healed soon. Mr Wickremesinghe and his administration are not sincere and have no interest in addressing concerns of the Tamil population.  Those who persecuted the applicant have not been punished and it is therefore likely that they would continue to persecute the applicant.

    [3] Submissions dated 18 March 2023, [1].

    [4] Human Rights Watch, ‘World Report 2023: Sri Lanka’ (online, no date) <World Report 2023: Sri Lanka | Human Rights Watch (hrw.org)>.

    Independent Country Information

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

12. The Tribunal will now refer to country information relevant to the applicant’s claims.

    Overview

13. DFAT’s most recent Country Information Report on Sri Lanka (‘DFAT Report’)[5] provides the following summary:

    2.1 Sri Lanka, formerly Ceylon, achieved independence from the United Kingdom (UK) in 1948. Historically, relations between Sri Lanka’s majority Sinhalese and minority Tamil communities have been tense. Tamils received preferential treatment during British rule, including in education and civil service employment. After independence, successive Sinhalese-led governments introduced measures to promote the primacy of the Sinhalese community. These developments created a sense of marginalisation within the Tamil community and encouraged calls for an independent Tamil state, Tamil Eelam, in the predominantly Tamil-populated north and east of the country.

    2.2 A number of militant groups emerged to advance the cause of Tamil statehood. The most prominent of these, the Liberation Tigers of Tamil Eelam (LTTE, commonly known as the Tamil Tigers), formed in 1976 and launched an armed insurgency against the Sri Lankan state in 1983. Government forces re-took the north and east of the country from 2007-09, culminating in the military defeat of the LTTE in May 2009. The UN and human rights organisations documented serious violations in the final stages of the war when Mahinda Rajapaksa was President, during which up to 40,000 civilians may have been killed. In total, Sri Lanka’s 26-year civil war is estimated to have claimed 100,000 lives and displaced over 900,000 people. Civil society groups and NGOs have criticised the Rajapaksas for enabling and covering up alleged war crimes and atrocities against civilians.

    2.3 In 2015, Maithripala Sirisena, who defected from the Mahinda Rajapaksa Government to a rival political grouping, was elected President. Sirisena promised a new era of “clean” government, free of corruption, and embarked upon a path of reconciliation with the Tamil minority that appeared to make some progress. His government faced a constitutional crisis when he briefly appointed Mahinda Rajapaksa as his Prime Minister in a move that was not approved by parliament.

    2.4 On 21 April 2019, local Islamic extremist groups inspired by Daesh (also known as Islamic State), carried out coordinated terrorist attacks against Christian churches and hotels. The attacks, comprising suicide bombers, killed more than 250 people and injured another 490 — the deadliest bout of violence and the first known terrorist attacks in Sri Lanka since the end of the civil war in May 2009….

    2.5 In November 2019, Gotabaya Rajapaksa was sworn in as Sri Lanka’s President, choosing his elder brother Mahinda Rajapaksa, a former two-term President, as his Prime Minister. The UN Office of the High Commissioner for Human Rights (OHCHR), in its report of January 2021, said: ‘Sri Lanka seemed to be on a new path towards advancing reconciliation, accountability and human rights. The developments since November 2019, however, have reversed that direction and, instead, threaten a return to patterns of discrimination and widespread violations of human rights experienced in past decades’….[6]

    [5] DFAT Country Information Report Sri Lanka (December 2021)(‘DFAT Report 2021’).

    [6] DFAT Country Report (n 5) [2.1]—[2.5].

    Tamils

14. In relation to Tamils, the DFAT Report noted:

    3.4 According to the most recent census (2012), Tamils are the second largest ethnic group in Sri Lanka (15.3 per cent of the population). Tamil political parties are active, with the largest coalition of parties operating under the umbrella of the Tamil National Alliance (TNA). In the 2020 parliamentary elections, the TNA won 10 seats (of a total 225) during the landslide victory of President Rajapaksa’s Sri Lanka People's Freedom Alliance (SLPFA). There are two Tamil parties in the Government’s ruling SLPFA coalition: the Tamil Makkal Viduthalai Pulikal (TMVP) (formerly known as the Karuna group), and the Eelam People's Democratic Party (EPDP), which have a combined total of three seats in the Sri Lankan Parliament. There is one Tamil cabinet minister as of November 2021: Minister for Fisheries, Douglas Devananda of the EPDP. This represents a decline in political influence for Tamils from the previous Sirisena Government.

    3.5 Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs, though other sources suggest this is because many Tamils speak neither Sinhala nor English. Even the Tamil-dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil-speaking police officers and military personnel in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities. In April 2021, Sri Lanka Police announced plans to recruit 2,000 Tamil speakers for the north and east, given that very few of the mostly Sinhalese officers (with around 700 police officers working in the Northern Province and 1,100 in the Eastern Province) speak fluent Tamil. All police basic training is reportedly conducted in Sinhala limiting accessibility to most Tamils.

    3.6 DFAT assesses there is no official discrimination on the basis of ethnicity in public sector employment. Rather, Tamils’ under-representation is largely the result of language constraints and disrupted education because of the war.

    3.7 DFAT is aware that some Sinhalese from the south have resettled in the north and east with government assistance in the post-war period. Local sources in the north expressed concern about the construction of Buddhist statues and temples in non-Buddhist populated areas. DFAT is unable to verify claims that Sinhalese settlers in the north and east have received preferential treatment to establish businesses.

    Monitoring, harassment, arrest and detention

    3.8 Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested or detained by security forces during the war. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner….

    3.9 Members of the Tamil community and NGOs report that authorities continue to monitor public gatherings and protests 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…

    3.10 Communities in the north and east report that monitoring is undertaken by military intelligence and the Police Criminal Investigation Department, though in many cases officers dress in plain clothes and do not identify themselves. According to local sources, those participating in public gatherings and protests are often photographed. In the east, local informants within the community (including neighbours and business owners) reportedly undertake monitoring on behalf of the authorities. Intelligence agencies also monitor links to foreign groups, including some in the Tamil diaspora...

    3.11 LTTE cemeteries in the north and east were destroyed by government forces during and after the war. Some have subsequently been restored. It is illegal to commemorate the birthday of LTTE leader Prabhakaran (26 November), or Maaveerar Naal (‘Great Heroes’ Day’ in Tamil, 27 November), although some Tamils are known to defy this ban. The public display of LTTE symbols, including the LTTE flag and images of Prabhakaran, is also banned.

    3.12 Tamils have been arrested in 2021 under the Prevention of Terrorism Act (PTA) for commemoration of the war... In May 2021, on the eve of commemoration of the end of the civil war in Mullaithivu district, the location at which various estimates suggest up to 40,000 civilians died in the closing phase of the war, authorities placed the district under strict COVID-19 quarantine isolation. According to local sources, Tamils who tried to commemorate the day were harassed or arrested by police. For example, 10 Tamils including two women were detained from 19 May 2021 until at least late July for holding a socially-distanced candle-lit vigil on a beach in [City 1], Eastern Province. On 19 May 2021, the Government of Sri Lanka, including President Rajapkasa, celebrated the same occasion as War Heroes Day.

    3.13 DFAT assesses that surveillance of Tamils in the north and east continues, with particular surveillance of those associated with politically-sensitive issues. DFAT also assesses that physical violence against those being monitored is not common, and that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment.[7]

    [7] DFAT Country Report (n 5) [3.4]—[3.13].

    Political opinion

15. In relation to political opinion, actual or imputed and the LTTE, the DFAT Report states:

    3.38 Sri Lanka has held regular democratic elections since independence. Large-scale violence and vote rigging have never been features of elections, but nor have elections always been described as entirely free and fair. DFAT assesses that political parties are able to operate freely across Sri Lanka and contest elections. There are no constitutional, legal or other restrictions preventing minorities from participating in politics. Sri Lanka has a diverse political landscape, with 70 registered political parties representing ethnic, religious and ideological interests. Political representation in parliament of each ethnicity is broadly proportional to the ethnic make-up of the overall population. The current parliament includes 27 Tamils and 19 Muslims among its 225 members. There is a single Muslim and Tamil respectively in the current cabinet, with another two Tamil state ministers.

    Liberation Tigers of Tamil Eelam (LTTE)

    3.39 At its peak in 2004, the LTTE had an armed force of approximately 18,000 combatants. The LTTE was proscribed as a terrorist organisation by a number of countries, including Australia. It was supported by foreign funding, primarily from the Tamil diaspora, and both voluntary and forced recruitment of Tamils. Funding from the Tamil diaspora was sometimes attained through means of intimidation and coercion, including threats against local family members and kidnapping for ransom. Within Tamil Eelam, the LTTE imposed its authority in a brutal fashion, reportedly murdering Tamil rivals and critics.

    3.40 Towards the end of the war, in 2009, government security forces arrested and detained a large number of LTTE members. Most were sent to government-run rehabilitation centres. A smaller number were prosecuted through Sri Lanka’s court system. Security forces also questioned or monitored many civilians for possible LTTE activity, and for civil resistance or anti-government sentiment. Although not officially mandated, in many areas the military took a visible and active role in civilian life. The previous Sirisena Government publicly committed to reducing military involvement in civilian activities, but observers have expressed concern that this has reversed and the military’s role is growing again.

    3.41 While the LTTE was comprehensively defeated, Sri Lankan authorities remain concerned over its potential re-emergence, and to separatist tendencies in general. Sources report that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members, supporters and other separatists, including ‘stop’ and ‘watch’ electronic databases. DFAT understands these databases remain active. ‘Stop’ lists include names of those individuals who have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals whom the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities.

    3.42 Former LTTE members face no legal barriers to participating in public life, including politics. In the August 2015 parliamentary elections, the TNA did not allow ex-LTTE members to run on their ticket, but ex-combatants established the Crusaders for Democracy party and ran for election. While the party did not win any seats, its participation demonstrated the relative openness of the electoral process. The party did not contest the 2020 parliamentary elections.

    3.43 The LTTE has not carried out any attacks since 2009; however, individuals linked to the LTTE have been involved in what are alleged to be thwarted attacks. DFAT assesses that the LTTE no longer exists as an organised force inside Sri Lanka, and any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans. Local sources told DFAT that the Tamil community had abandoned militancy and was committed to addressing its grievances through political means.

    3.44 The International Truth and Justice Project (ITJP), an NGO which documents torture and sexual violence by the security forces in Sri Lanka, claims that, while ex-LTTE cadres exist, they are no longer affiliated in any way with an extant LTTE, and are subject to harassment and discrimination by the Government. The Sri Lankan Government may not accept that the LTTE is finished, arresting several Tamils in 2021 under the Prevention of Terrorism Act (PTA) for alleged LTTE-supportive behaviour... In July 2021, a Tamil man was deported from Qatar to Sri Lanka at the request of Counter-Terrorism Investigation Department (CTID) for allegedly promoting the LTTE. In its May 2021 decision on the refugee status of Tamil activists in the UK, the UK Upper Tribunal found that the present Government of Sri Lanka was possessed of a ‘determination to prevent any form of resurgent separatism’.

    …

    High-profile former LTTE members

    3.47 ‘High-profile’ former LTTE members are individuals who held senior positions in the LTTE’s military wing and civilian administration. The LTTE’s former leadership face the highest risk of monitoring, arrest, detention or prosecution, regardless of whether they performed a combat or civilian role during the war. Although most of the LTTE’s leadership died during the war, a number surrendered or were captured and sent to rehabilitation centres or prosecuted/detained. Some former leaders may have left Sri Lanka before, during or after the war... Others considered ‘high-profile’ include individuals suspected of terrorist or serious criminal offences during the war, or of providing weapons or explosives to the LTTE. Other former leaders, such as Karuna Amman (previously a leader of the TMVP, now a member of the Sri Lankan Freedom Party (SLFP), part of the President’s ruling coalition), defected and are allied with the Government.

    3.48 DFAT assesses that the number of high-profile former LTTE members living in Sri Lanka is small and that the vast majority would already have come to the attention of the authorities. DFAT also assesses that any remaining high-profile former LTTE members who came to the attention of the authorities would likely be arrested, detained and prosecuted through Sri Lanka’s criminal courts and, once they had their prison sentences, be subjected to some form of rehabilitation. The average judicial process in Sri Lanka, including appeal, is protracted... High-profile former LTTE members would likely continue to be monitored by the Sri Lankan authorities following their release from prison and completion of any rehabilitation process.

    Low-profile former LTTE members

    3.49 ‘Low-profile’ former LTTE members include former combatants, those employed in administrative or other roles, and those who may have provided a high level of non-military support to the LTTE during the war. DFAT assesses that, although the great majority of low-profile former LTTE members have been released following their rehabilitation, any low-profile former LTTE members who came to the attention of the Sri Lankan authorities now, particularly if suspected of having a combat function during the war, would likely be detained and may be sent for rehabilitation. Following their release from rehabilitation, a low profile former LTTE member might be monitored but would generally not be prosecuted.[8]

    [8] DFAT Country Report (n 5) [3.38]—[3.44], [3.47]—[3.49].

    The Prevention of Terrorism Act (PTA)

1. In relation to the PTA, the DFAT Report noted:

   The Prevention of Terrorism Act (PTA)

   4.20 The PTA was enacted as a temporary measure in 1979 to counter separatist insurgencies. It was made permanent in 1982 and remains legally in force. The PTA is not part of regular criminal law and contains special provisions on detention and the admissibility of confessions. The PTA allows arrests for unspecified ‘unlawful activities’, permits detention for up to 18 months without charge and provides that confessions are legally admissible. Prior to the 2019 Easter Sunday terrorist attacks, the PTA was used mainly to target those suspected of involvement with the LTTE. It was used only sporadically between 2016 and April 2019 following the then-government’s commitment to repeal and replace the PTA under HRC Resolution 30/1 (2015). During the civil war, authorities detained more Tamils under the PTA than any other ethnic group. The PTA has been used for many years to detain people in prolonged and often arbitrary detention. According to the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, in his 2017 report, 70 people had been in detention without trial for over five years and 12 had been in detention without trial for over 10 years. According to the HRCSL, as of 31 January 2018, about 15 per cent of PTA suspects had been in detention for 10 to 15 years, and about 41 per cent had been in detention for five to 10 years. As of 2021, many of these detainees are still being held.

   4.21 DFAT is not able to verify the precise number of individuals currently held under the PTA. One local source estimated that 300 Muslims and 60 Tamils are being held under this legislation. A large number of Muslims were detained under the PTA following the 2019 Easter Sunday terrorist attacks. In 2021, the Sri Lankan police were still arresting Muslims in connection to the bombing. For example, in April 2021, opposition MP Rishad Bathiudeen and his brother Riyadh were arrested by CID for allegedly assisting the terrorists responsible for the 2019 Easter Sunday terrorist attacks. The brothers have claimed the arrest was political. The Government has not explained the nature of their alleged connection to the bombing. The brothers have since been released on strict conditions of bail.

   4.22 The Government has used the PTA for purposes with arguably limited connection to terrorism. In May 2020, police arrested Ahnaf Jazeem, a 26-year-old teacher and Tamil poet, based on allegations that his poetry collection promoted ‘religious extremism’. In December 2021, Jazeem was charged under the PTA and released on bail. Human rights observers have reported other cases with respect to Muslims, including: Hejaaz Hizbullah, a Muslim human rights lawyer in custody since 14 April 2020 and eventually charged with an offence under the International Covenant on Civil and Political Rights (ICCPR) Act; and Ramzy Razeek, a retired government official, detained in April 2020 for posting on Facebook about religious extremism.

   4.23 The PTA has also recently been used against Tamils. Media reported a Tamil man was arrested by Eravur police in April 2021 for allegedly sharing a photo of LTTE leader Prabhakaran, while Jaffna Mayor, V. Mannivannan, was arrested by TID in April 2021 under accusations of attempting to resurrect the LTTE, allegedly because the choice of uniforms for a municipal environmental enforcement team resembled those of the LTTE. DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA.

   4.24 In 2015, President Sirisena committed to repeal and replace the PTA with improved counter terrorism legislation. This proposal, which was criticised by some human rights defenders as being as bad or even worse than the PTA, lapsed with that Government. In June 2021, the European Parliament adopted a resolution urging the EU Commission to consider temporary withdrawal of the Generalized System of Preferences preferential trade agreement from Sri Lanka, if it did not reform the PTA. In its response the Sri Lankan Ministry of Foreign Affairs rejected the claim that detention under the PTA had resulted in arbitrary detention but nevertheless promised to ‘revisit’ provisions of the Act to propose ‘necessary amendments’.

   4.25 In March 2021, the Government added ‘de-radicalisation regulations’ to the PTA which allow for arbitrary administrative detention of individuals for up to two years without trial. The Government also proscribed 300 Tamil and Muslim groups and individuals allegedly ‘linked to terrorism.’ On 5 August 2021, the Supreme Court, in response to Fundamental Rights Petitions filed by several activists, issued an Interim Order suspending the operation of Prevention of Terrorism (De-radicalization from holding violent extremist religious ideology) Regulations No. 01 of 2021. These petitioners argued that individuals arrested under these new regulations could be subject to potentially indefinite detention under the guise of rehabilitation, without judicial review. A court hearing of the matter remains stalled at the time of publication.

   4.26 In September 2021, during the UN Human Rights Council Session, the Sri Lankan Government announced a Cabinet sub-committee had been convened in June to ‘review’ the PTA within three months. Its report was not available at the time of publication, however, according to media reports, the committee presented its report to the President on 15 November 2021.[9]

   [9] DFAT Country Report (n 5) [4.20]—[4.26].

   RETURNEES, EXIT AND ENTRY PROCEDURES

2. DFAT reported:

   5.17 Unsuccessful asylum seekers, both those subject to removal or departing voluntarily, are returned to Sri Lanka either using commercial or charter flights. In some cases, they may be accompanied by security escorts. On arrival in Colombo, returnees will be presented to Sri Lankan Immigration where they will be interviewed by the Chief Immigration Officer. Depending on the circumstances of their departure from Sri Lanka and their personal history, they may be interviewed by other agencies including CID, Sri Lankan State Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI). These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Those who have departed illegally will be referred to CID at the airport and charged accordingly. Once charged they are taken to the courts at Negombo where they are bailed and released.

   5.18 DFAT is not aware of returnees in 2021 being detained for matters other than illegal departure (such as, for former membership of the LTTE). However, due to COVID-19, returnees have been returned to Sri Lanka in smaller numbers overall than in previous years. According to the IOM, in 2021 up to September, there had been 107 returnees, 19 of these from Australia. Local sources also report that Tamils overseas are much less likely to return voluntarily to Sri Lanka under the current Government.

   5.19 The IOM meets Australian-assisted voluntary returnees (i.e. not deportees) after immigration clearance at the airport and provides some cash and onward transportation assistance, along with legal assistance provided by the Sri Lankan Legal Aid Commission for those charged with illegal departure. Prior to departure from Australia, Australian Border Force provides removed returnees with cash to assist their return.

   5.20 For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.

   Offences under the Immigrants and Emigrants Act

   5.21 The Immigrants and Emigrants Act (1948) (the I&E Act) governs exit from and entry to Sri Lanka. Returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the I&E Act. Sections 34 and 35 (a) of the I&E Act make it an offence, respectively, to depart Sri Lanka other than via an approved port of departure, such as a seaport or airport, and/or without a valid passport. Returnees who departed Sri Lanka legally are not required to face a court, as no offence under the I&E Act applies. Sri Lanka has a mature people smuggling industry. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine, though DFAT is unaware of a prison sentence being given for illegal departure by itself. Facilitators or organisers of people smuggling ventures, including captains and their crew, are charged with more serious offences and typically refused bail.

   5.22 Those charged are required to appear in court in the location where the matter was first heard, reportedly Negombo Courts, near the airport, which involves legal and transport costs. While the frequency of court appearances depends on the magistrate, DFAT understands that most individuals charged under the I&E Act appear in court every 3-6 months, regardless of their plea, for bail hearings. In addition to their own court hearings, those charged may be summonsed as witnesses in cases against the facilitators or organisers of people smuggling ventures. The cases of those charged with illegal departure may take years to resolve, requiring on-going court appearances (and illegal departees have no reasonable prospect of a defence). It is unclear to DFAT why such cases take so long. One source suggested that cases are taken forward in court only when all members of a people smuggling venture have been located; while another local source suggested it was simply due to the workings of the Sri Lankan justice system. For many returnees, this means they are subject to the slow processes of the Sri Lankan legal system; some returnees told DFAT that it was difficult and stressful having to return periodically to Colombo for a further hearing in a case where they were uncertain of the outcome.

   5.23 While those convicted of the offence of illegal departure may theoretically face a custodial sentence, in practice, local sources suggest, a fine is always imposed and typically this fine is LKR 50,000 - 200,000 (AUD350-1400). Sources suggest those who are unable to pay the fine are permitted to pay in instalments but, if still unable, may be imprisoned for 14 days.

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

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

   5.26 DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure.

   Conditions for Returnees

   5.27 Between 2010-11 and 2018-19, 3,716 Sri Lankan nationals returned from the Australian community or were removed from Australian onshore immigration detention centres to their country of origin or a third country. Between 2002 and September 2021, the IOM has facilitated the return of 876 Sri Lankans from Australia. Many others returned from the US, Canada, the UK and other European countries. Most returnees are Tamil. Although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin and they have existing family links, or because of the relatively lower cost of living compared to the south.

   5.28 Refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. Most returnees have incurred significant expenses or debt to undertake their outward journey. Some voluntary returnees receive reintegration assistance in the form of transport and livelihood support upon return to Sri Lanka from the Government, UN agencies and NGOs, but this requires a returnee to meet strict eligibility guidelines and is minimal. Failed asylum seekers receive limited reintegration assistance. Many returnees have difficulty finding suitable employment and reliable housing on return. Those who have skills that are in high demand in the labour market are best placed to find well-paid employment. The IOM provides eligible returnees with livelihood assistance and makes regular visits to monitor the welfare of returnees.

   5.29 Multiple local sources said that some returnees, especially those in the north and east with suspected LTTE links, have been the subject of monitoring by the authorities, involving visits to returnees’ homes and telephone calls by the CID. DFAT understands that most returnees, including failed asylum seekers, are not actively monitored on an ongoing or long-term basis. DFAT is unable to verify whether monitoring, where it occurs, is specific to former LTTE cadres. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had no protection concerns and had not experienced harassment by the authorities, nor received monitoring visits, but DFAT cannot determine if this is the case for all such returnees.

   5.30 Bureaucratic inefficiencies present a significant challenge to reintegration for returnees. Refugee returnees, particularly those who returned without UNHCR or IOM facilitation, can experience delays in obtaining necessary identification documents and proof of citizenship. Lack of documentation inhibits access to social welfare schemes and the ability to open bank accounts, find employment or enrol in educational institutions. Limited job availability in the north and east further contributes to difficulties in securing employment and housing. DFAT assesses that reintegration issues are not due to failure to obtain asylum, but rather due to the employment and accommodation difficulties returnees may face. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they were able to reintegrate into their communities and find employment. DFAT understands that returnees may face financial difficulties reintegrating into their communities, including due to sale of their belongings to fund irregular ventures overseas, but do not experience societal discrimination for seeking asylum elsewhere.

   5.31 Some refugees and failed asylum seekers reported being pressured upon return to their communities, chiefly for being beneficiaries of financial reintegration assistance. Others experienced resentment upon return because they spent family funds on what proved to be a futile attempt at irregular migration. Overall, DFAT understands that societal discrimination is not a major concern for returnees, including failed asylum seekers. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had not experienced significant societal discrimination following their return.

   5.32 DFAT assesses that returnees face a low risk of societal discrimination upon return to their communities. DFAT further assesses that, where it occurs, surveillance of returnees can contribute to a sense of mistrust of returnees within communities.[10]

   [10] DFAT Country Report (n 5) [5.17]—[5.32].

   Prison conditions in Sri Lanka

3. DFAT reported that:

   5.10 In general, prison conditions in Sri Lanka do not meet international standards, including due to old infrastructure, overcrowding, and a shortage of adequate health and sanitary facilities. The HRCSL in its study of prisons in 2020 found that the ‘treatment and detention conditions of prisoners fall far below the threshold of basic living standards’. The US Department of State reported in 2018 that only some of the larger prisons had hospitals, and that prisoners requiring medical care in smaller prisons were typically transferred to the nearest local hospital. Some facilities reportedly do not segregate juveniles and adults, or remand and convicted detainees. In many prisons, inmates reportedly slept on concrete floors, and prisons often lacked natural light or sufficient ventilation.

   5.11 Overcrowding in Sri Lankan prisons is a major issue. According to official statistics, in 2020, the number of prisoners (approximately 90,000 prisoners on remand and 19,900 convicted detainees) exceeded prison capacity by nearly 64 per cent. Over half of the prison population is estimated to be awaiting trial. Remand detention typically lasts years and is considered as part of the final sentence at the discretion of judges. According to the HRCSL, the overcrowding of prisons is also impacted by the large number of convicted prisoners imprisoned due to the inability to pay fines and the non-payment of debt and maintenance payments.

   5.12 The International Committee of the Red Cross (ICRC) has the right to access to all places of detention and all categories of detainees in Sri Lanka, including those held under the PTA and those undergoing rehabilitation for drug-related offences. The ICRC receives notification of arrest but, given resource constraints, can take some time to visit detainees to assess their welfare. The HRCSL also has the right to access a number of places of detention without restrictions from the authorities, including for unannounced visits. The Government continued to allow the ICRC and the HRCSL full access to prisons in 2020. In addition to the ICRC and the HRCSL, the Board of Prison Visitors, an internal governmental watchdog, examines detention conditions. The Board conducts regular visits to prisoners and accepts complaints as a part of its mandate.[11]

   [11] DFAT Country Report (n 5) [5.10]—[5.12].

   Reports from other sources

4. There are reports of increased mistreatment, monitoring and harassment of Tamils in the north and east after the November 2019 presidential election, and that it continued with the change of government in July 2022. Reports of monitoring, surveillance, intimidation, and harassment of Tamils in day-to-day life by security forces in the north and east of the country increased after the election of Gotabaya Rajapaksa as president in November 2019.[12]

   [12] Sri Lanka Campaign for Peace and Justice,,'Jailing Activists and Pardoning Murderers: Monitoring Ten Issues of Concern in Sri Lanka in 2021' February 2022 19; UK Home Office, 'Report of a Home Office fact-finding mission to Sri Lanka', , 20 January 2020, 11, 49; OHCHR, 'Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka', 18 February 2020, 7.

5. In September 2022, the United Nations’ Office of the High Commissioner for Human Rights (OHCHR) said it continues to receive reports of surveillance, intimidation, and harassment of various groups in the North and East, including journalists, human rights defenders, families of the disappeared and persons involved in memorialization initiatives.[13] There have been reports of assaults, arrests and the alleged torture of Tamil civilians.[14] In one reported case in 2021, this resulted in the death of a Tamil civilian in police custody.[15]

   [13] United Nations Human Rights Council, 'Situation of human rights in Sri Lanka: Comprehensive Report of the United Nations High Commissioner for Human Rights A/HRC/51/5', 6 September 2022, 7.

   [14] Tamil Guardian, 'Tamil man hospitalised following assault by Sri Lankan military aligned thugs over Mullivaikkal commemoration' (online 22 May 2022) < United States Department of State, 'Country Reports on Human Rights Practices for 2021 Sri Lanka', 12 April 2022, 3; United Nations Human Rights Council, 'Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights', 25 February 2022, 7-8; Amnesty International, 'Sri Lanka: End the use of and repeal the draconian PTA', 17 February 2022, 5; Journalists for Democracy in Sri Lanka, 'Sri Lanka military’s latest assault weapon: Barbed wire wrapped palm frond' (online 25 January 2022) < International Truth and Justice Project, Yasmin Sooka and Frances Harrison, 'Sri Lanka: Torture and Sexual Violence by Security Forces 2020-2021', International Truth and Justice Project September 2021, 24-27; United Nations Human Rights Council, 'Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association', 5 May 2020, 13; INFORM Human Rights Documentation Centre, 'Repression of Dissent in Sri Lanka: 1 st - 31st May 2020', 29 June 2020, 10; ‘Report of a Home Office fact-finding mission to Sri Lanka’ (n 16), 11,49; ‘Report of a Home Office fact-finding mission to Sri Lanka’ (n 16), 7; Tamil Guardian, 'Tamil youth hospitalised following Sri Lankan army assault in Mannar' (online 25 August 2020) < Tamil Guardian, 'Sri Lankan police arrest ten Tamils in Jaffna' (online 11 August 2020) < Tamil Guardian, 'Falsely arrested and tortured disabled Tamil man submits complaint at Human Rights Commission'  (online 3 June 2020) < ‘'Jailing Activists and Pardoning Murderers: Monitoring Ten Issues of Concern in Sri Lanka in 2021' (n 16), 31; 'Sri Lanka: Torture and Sexual Violence by Security Forces 2020-2021' (n 18), 33; Tamil Guardian, 'Tamil youth was 'tied to a tree' and attacked before being 'beaten to death'' (online 5 June 2021) < Tamil Guardian, 'Tamil youth beaten to death by Sri Lankan Intelligence officials' (online 3 June 2021) < type="1">

6. In January 2022, a Tamil fisherman and activist who had campaigned against military encroachment in the north, was found dead; local politicians and community members in Jaffna alleged he was murdered by the Sri Lankan Navy and called for an inquiry.[16] Tamils with certain profiles, such as political activists and journalists are more likely to attract the attention of authorities.

   [16] Journalists for Democracy in Sri Lanka, 'Sri Lanka: Family seeks impartial investigation into killing of Tamil fisherman' (online 14 January 2022) < Tamil Guardian, 'Anger in Jaffna after leading Tamil protestor killed by Sri Lankan navy' (online 12 January 2022) < >

   Civil society groups report ongoing harassment and intimidation of family members of individuals who disappeared during the war.[17] Individuals and groups seeking to commemorate the end of the war and fallen LTTE combatants have experienced security forces surveillance, have been stopped from marking these occasions, and in some instances have been arrested, including under PTA.[18]

   [17] United Nations Human Rights Council, above n 17, 7, 9; Sri Lanka Campaign for Peace and Justice, 'Human Rights in Sri Lanka in 2021' (online 21 December 2021) < Just Security, 'Heeding Victims’ Voices: The Struggle of Tamil Families of the Disappeared in Sri Lanka' (online 3 March 2021) < 'Jailing Activists and Pardoning Murderers: Monitoring Ten Issues of Concern in Sri Lanka in 2021'  (n 16), 27;  'Sri Lanka: Torture and Sexual Violence by Security Forces 2020-2021' (n 18), 3223; Committee to Protect Journalists (CPJ), 'Sri Lanka army soldiers attack Tamil journalist covering commemoration for civil war dead'  (online 2 December 2021) < Tamil Guardian, 'Sri Lankan security forces block Sencholai massacre commemoration in Mullaitivu' (online 14 August 2021) < Al Jazeera, 'Sri Lankan troops break up Tamil remembrance of civil war dead' (online 29 November 2021) < >

   While authorities lifted a ban on several Tamil organisations and individuals in August 2022, many Tamil individuals and Tamil organisations, including several diaspora organisations, remain proscribed.[19]

   [19] 'Amendment to the List of Designated Persons under Regulation 4(7) of the United Nations Regulations No. 1 of 201', Gazette of the Democratic Socialist Republic of Sri Lanka, 1 August 2022; Daily News, 'Procedure for blacklisting and delisting of persons and organisations under UNSC 1373' (online 17 August 2022) < The Morning, 'De-proscribed Tamil units funded terrorism earlier, says Defence Ministry' (online 1 August 2022) <https:// The Morning, 'Ban on Tamil diaspora units lifted' (online, 15 August 2022) < Tamil Guardian, 'Selfish and cynical – Sri Lanka lifts ban on some Tamils but many more remain banned' (online,17 August 2022) <Selfish and cynical – Sri Lanka lifts ban on some Tamils but many more remain barred | Tamil Guardian>; Tamil Guardian, 'UN High Commissioner raises concerns of harassment of Tamils and Muslims in Sri Lanka' (online, 21 June 2021) <UN High Commissioner raises concerns of harassment of Tamils and Muslims in Sri Lanka | Tamil Guardian>; Tamil Guardian, 'Tamil organisations speak out against Sri Lanka's ban' (online, 4 April 2021).

7. Tamil political parties are generally able to operate freely and contest elections, although there have been increasing reports of the monitoring and harassment of hard-line parties. The TNA remains the largest single Tamil party, but saw its share of seats drop from 16 in the last parliament to 10.[20] In general, there have been few reports of political violence against party members in recent years.[21]

   [20] Daily Mirror, 'Non-career lawmakers secure political authority'(online, 13 August 2020).

   [21] Tamil Guardian, 'Sri Lankan police attack Tamils in Jaffna as frustration mounts over recount' (online, 6 August 2020) <Sri Lankan police attack Tamils in Jaffna as frustration mounts over recount  | Tamil Guardian>; Daily Mirror, 'Internal strife within ITAK takes disturbing turn' (online, 29 August 2020) <Internal strife within ITAK takes disturbing turn - Opinion | Daily Mirror>.

8. Information indicates that persons advocating for Tamil separatism may attract the attention of Sri Lankan authorities. Available sources indicate that those who hold a ‘significant role’ in Tamil separatist activities, such as through holding leadership positions in Tamil diaspora groups, those deemed to hold radical views, those formerly part of the LTTE, those in high-profile roles, those suspected of raising funds for the LTTE during the war, and those who actively advocate for Tamil statehood would likely be of particular interest to the Sri Lankan authorities.[22]

   [22] Upper Tribunal (Immigration and Asylum Chamber), 'KK RS (Anonymity Direction Made) and Secretary of State for The Home Department’,  27 May 2021, 119-120.

9. In relation to the PTA, there are reports that the PTA has been used to arrest hundreds of mostly Muslim Sri Lankans as part of investigations into the 2019 Easter Sunday bombings, although most have now been released. Prior to the Easter Sunday bombings, government statistics indicated that the majority of individuals held under the PTA were Tamils detained in many cases for years in connection with serious security offences.[23] Government data indicate that, as of 2 December 2021, 333 people were detained under the PTA, of whom 16 were convicted, 11 were under appeal and the remaining were detained as suspects.[24]

   [23] Tamil Guardian, 'Sri Lankan Minister claims all pending pre-2016 PTA cases ‘to be concluded in next three months'' (online, 15 August 2021) <Sri Lankan Minister claims all pending pre-2016 PTA cases ‘to be concluded in next three months' | Tamil Guardian>; Australian Department of Foreign Affairs and Trade, ‘UN Special Rapporteur (Ben Emmerson) on Human Rights and Terrorism in Sri Lanka’ (online, 14 August 2017) 2 <Special Rapporteur on counter-terrorism and human rights | OHCHR>; The Island, ‘PTA suspended pending passage of new Counter Terrorism Law’ (online, 8 February 2017) <Sri Lanka: UN experts call for swift suspension of Prevention of Terrorism Act and reform of counter-terrorism law | OHCHR>; Office of the United Nations High Commissioner for Human Rights, ‘Human rights and counter terrorism: UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism concludes visit to Sri Lanka, Preliminary findings of the visit to Sri Lanka’ (online, 14 July 2017) <Special Rapporteur on counter-terrorism and human rights | OHCHR>; Human Rights Watch, ‘Locked up without evidence: Abuses under Sri Lanka’s Prevention of Terrorism Act’ (online, 29 January 2018) 5 <Locked Up Without Evidence: Abuses under Sri Lanka’s Prevention of Terrorism Act | HRW>; UN Human Rights Council, ‘Report of the Working Group on Arbitrary Detention on its visit to Sri Lanka’ (online, 23 July 2018) 7 <A/HRC/39/45/Add.2: Report of the Working Group on Arbitrary Detention on its visit to Sri Lanka - Note by the Secretariat | OHCHR>; The Sunday Reader, ‘Police arrest 2289 over Easter Sunday terror attacks – Police Spokesman SP Ruwan Gunasekara’ (online, 3 June 2019); Daily News ‘Over 2,280 suspected arrested since Easter Sunday terror attacks’ (online, 5 June 2019); Daily News, ‘Brother of Suicide Bomber Arrested’ (online, 10 May 2019); The Island, ‘Govt urged to review ‘security reforms’ as 60 suspects taken in under PTA’ (online, 25 April 2019); Ceylon Today, 'Official list of detainees under PTA' (online, 30 July 2017); OHCHR, 'Promotion reconciliation, accountability and human rights in Sri Lanka: Report of the Office of the High Commissioner for Human Rights' (online, 27 January 2021) 13.

   [24] United Nations High Commissioner for Human Rights, 'Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights', United Nations Human Rights Council (25 February 2022) 10.

10. The Sri Lankan government passed a bill to amend the PTA in March 2022 which critics said was ineffective and did not adequately address human rights concerns. Critics, including the UNHCHR and civil society groups, said the amendments failed to address aspects of the PTA which have enabled human rights abuses and the targeting of minorities, critics and journalists.[25]

    [25] Daily FT ‘Civil Society statement on proposed amendments to Prevention of Terrorism Act', Daily FT (online, 8 February 2022) <Civil Society statement on proposed amendments to Prevention of Terrorism Act | Daily FT>.

    FINDINGS & REASONS

11. The Tribunal recognises that assessment of credibility is an inherently difficult process and that there are unique considerations in relation to asylum seekers. The Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions concerning credibility.

12. In the full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the Court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably. As Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

    understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

13. The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:

    refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

14. The Tribunal has also taken into consideration psychological research on memory of trauma,[26] which indicates that inconsistencies, fragmentation of memory, lapses in memory, lack of specificity and overgeneralisations do not necessarily reflect lack of veracity in relation to recalled events. The research indicates that accurate human recollections of all kinds can be disrupted in unpredictable ways following trauma.[27] Assessment of evidence can be based on imperfect perceptions of truth. There may also be factors that consciously or otherwise influence decisions.[28] Australian research indicates Refugee Review Tribunal members may have relied on assumptions inconsistent with psychological literature.[29]

    [26] M Conway, ‘Episodic Memories’ (2009) 47 Neuropsychologia 2305; J Herlihy, L Jobson and S Turner ‘Just tell us what happened to you: autobiographical memory and seeking asylum’ (2012) 26 Applied Cognitive Psychology 661; C Brewin, ‘The nature and significance of memory disturbance in posttraumatic stress disorder’ (2011) 7 Annual Review of Clinical Psychology 203.

    [27] H E Cameron, Refugee Status Determinations and the Limits of Memory (2010) International Journal of Refugee Law 469.

    [28] H Bennett and G Broe ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9.

    [29] Rebecca Dowd, Jill Hunter, Belinda Liddell, Jane McAdam, Angelia Nickerson and Richar Bryant, ‘Filling Gaps and Verifying Facts: Assumptions and Credibility Assessment in the Australian Refugee Review Tribunal’ (2018) 30(1) International Journal of Refugee Law, 71–103.

15. Taking these matters into consideration, the Tribunal makes the following findings of fact.

    Country of nationality

16. On the basis of the available information and for the purpose of this review, the Tribunal finds that the applicant is a national of Sri Lanka.  The applicant made no claim to be a national of any other country.   The Tribunal finds that the claims should be assessed against Sri Lanka for the purposes of the Convention in s 36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s 36(2)(aa). 

    Ethnicity and background

17. On the basis of the available information, the Tribunal is satisfied that the applicant is of Tamil ethnicity from the Eastern Province.

    Has the applicant suffered the claimed harm?

18. The Tribunal accepts the applicant’s evidence that between 1995 and 2007, he worked in [Town 1] Hospital as a general nurse, and that he worked at [Town 2] Hospital, from 2007 to 2008, which prior to this time was under the control of the LTTE.  The Tribunal accepts that from 1995 until 2003, he also worked with the [ORGANISATION 1] as a volunteer but was paid by the hospital which approved his work. 

19. The Tribunal accepts the applicant’s evidence that neither he nor any member of his family had ever been involved with the LTTE. 

20. The Tribunal accepts as plausible the applicant’s evidence that in 2007, he was taken by the LTTE twice and blindfolded whilst working at [Town 2] hospital to treat their wounded and provide first aid.  The Tribunal accepts his evidence that he did not know where he was taken but that he knew they were LTTE because they were armed and spoke Tamil. 

21. In the course of the hearing, the Tribunal asked the applicant about his claim that his wife’s sister’s husband was taken in 2008.  He said he was a human rights activists.  Asked to clarify, the applicant stated that his wife’s sister’s husband was reporting on human rights issues and the army took him.  He said he was an [Occupation 1] and he loved language and Tamil issues.  The applicant stated that the wife’s sister’s husband used to point out human rights issues and perhaps he was on a human rights committee.  He said his wife’s sister’s husband had problems with the government due to expressing his opinions.  The Tribunal accepts that the wife’s sister’s husband was involved in human rights issues and that he was abducted in 2008.  The Tribunal accepts that a death certificate was issued by the Sri Lankan authorities without the body being recovered. 

22. The Tribunal accepts that between 2007 and 2008, whilst working at [Town 2] hospital, which was at the time located in [an] area, every 100 metres or so, there were checkpoints operated by the SLA and other paramilitary groups, where he and others were stopped, questioned, ill-treated, and that he stopped working at [Town 2] hospital in 2008 due to the ill-treatment.

23. The Tribunal discussed with the applicant the claim that he had provided photographs of shelling to the media.  He said he was working at [Town 2] hospital in 2007, and he opened a file on the computer.  He said there were a lot of photographs of shelling and “some war crimes”.  He said he felt that the “world should know”. He said he did not know who uploaded the photographs and that he did not need a password to access the photographs.  He said he came across the photographs whilst he was looking at a work and/or study related matter.  He said there were a lot of photographs, but he only gave two or three “two of war crimes…shelling of civilians”.  He said the hospital was shelled and one photograph related to that shelling. He said there was a photograph of a baby and people running away. The Tribunal asked the applicant and he confirmed that he did not know to which media organisation or personnel he gave the photographs. 

24. The Tribunal accepts as plausible that this incident occurred but given that it is claimed to have occurred in 2007 and the applicant could not provide any further details particularly to which media organisation he gave the photographs, the Tribunal is not satisfied that the provision of the photographs has given the applicant a profile of any adverse interest to anyone, or that he has  suffered any harm on this basis, or that there is a real risk or real chance of any such harm occurring in the future on this basis.  For those reasons, the Tribunal is not satisfied that the incident has any adverse significance to anyone or any institution.   

25. In the course of the hearing, the Tribunal asked the applicant about the claim that from 2009 to 2011, he had been taken on more than 15 times by the SLA and other paramilitary groups. The applicant denied that he had specified that number of occasions; he stated that his previous lawyer put that number down. He said he was taken on 2-3 occasions only. The Tribunal pointed out that the 15 occasions claim has been at issue throughout the process, and it was not accepted by the delegate or the two previous Members.  He said the previous lawyer was Iranian and perhaps there were language issues. The representative pointed out that the 15 occasions claim was not included in the recent submissions, which is correct.  The applicant now confirmed that he is not claiming that he was detained on more than 15 occasions but on 2-3 occasions by the intelligence working alongside the SLA. The Tribunal referred to the applicant’s evidence and previous confirmations that he had been taken on more than 15 occasions. He said it was confusing and he made a mistake. He said one cannot count the number of instances. The Tribunal put to the applicant the possibility that he might have been exaggerating and he said perhaps at times he was. 

26. The claim that he had been detained on more than 15 times by the SLA and other paramilitary groups is a significant claim.  It was initially made in the statement dated 22 August 2012 provided in support of the application for a Protection visa.  At paragraph 8 of the statement, the applicant claimed “I suffered further harm from 2009 to February 2011.  Because of my previous involvements with [ORGANISATION 1] and my services in ex-LTTE controlled areas, I was taken away from my house by the Sri Lankan army officers and other para-military groups more than 15 times.  On each occasion, I was blindfolded, forcibly taken away to military camps, detained for 7-8 days, interrogated about my past activities and my medical clients, physically tortured (plastic pipes filled with sand) and finally released”.  The Tribunal is of the view that his explanations that he did not mention more than 15 occasions and that there were language issues, are unpersuasive.  Moreover, he did concede the possibility that he might have been exaggerating his claims. The Tribunal is of the view that retracting a significant claim at this stage and under those circumstances raise concerns about the truthfulness of the claims as well as suggesting a capacity on the part of the applicant to exaggerate his claims. 

27. The Tribunal had difficulties with other claims of detention. The Tribunal asked the applicant whether prior to 2008, he was ever detained in Sri Lanka and he stated that he was detained on occasions for 2-3 hours and on one occasion for one day.  The applicant stated that he returned to [hospital] in 2008 and there was an incident. He said in late 2010 or early 2011, he was taken by those working for the army and kept for about six days.  He said he was detained once for 5-6 days but on other occasions for about 2-3 days – “something like that”. He said this happened because he is Tamil, “they get the thought of LTTE into their minds”.  He said that this happened because of his Tamil ethnicity and work with the [ORGANISATION 1].  He said the SLA were suspicious of him speaking to the LTTE.  The Tribunal found the applicant’s evidence in relation to the claimed detentions to be lacking in sufficient details to satisfy the Tribunal of their occurrence.  To say “something like that” in relation to significant claims raises concerns.

1. Relevantly, the Tribunal discussed with the applicant his visit to [Country 1] in 2011.  He said at the time he was working for the hospital and the trip was arranged through the hospital.  The Tribunal suggested that his return to Sri Lanka raises doubts about his claimed fear.  He said he was afraid to go to [Country 1], but he thought being in hospital would be safer.  He said he returned from [Country 1] with others.  He said at the time, his kids were small, and his wife was working.  He confirmed that he departed and returned using his Sri Lankan passport.  The Tribunal does not wish to sound harsh, but the applicant did leave his wife and children behind when he came to Australia in May 2012, not long after his trip to [Country 1]. The Tribunal is not persuaded by his explanations and is of the view that his lawful departure and return to Sri Lanka raise serious doubts about his claimed harm and provide further evidence of embellishment.

2. For those reasons, the Tribunal is not satisfied that the applicant was ever detained or abducted or ill-treated as claimed.

3. The Tribunal discussed with the applicant country information that there are sources suggesting that Tamils in the Northern and Eastern provinces still face monitoring and harassment. He stated that he continues to fear harm. The Tribunal put to the applicant DFAT’s most recent Country Information Report on Sri Lanka[30] and other reports and noted that, on balance, country information suggests that being a failed asylum seeker, a returnee from a western country, being Tamil, and departing Sri Lanka unlawfully do not necessarily mean that there is a real chance or a real risk of harm. The Tribunal discussed the I&E Act which is applicable to all.  The Tribunal indicated that what is likely to happen on return, is that a person is questioned, charged with illegal departure, and if convicted one may face a custodial sentence but in practice a fine is generally imposed, the equivalent of up to AU$1400, which can be paid in instalments or imprisonment for up to 14 days. The Tribunal noted that the Sri Lankan prison conditions include overcrowding, but there is no intention on the part of the Sri Lankan authorities to cause harm.  The Tribunal indicated that country information suggests that it is those with a high profile who can face harm. The Tribunal indicated that the Tribunal needed to consider further his cumulative profile. The applicant said Tamils will never live in peace. He said those in the east and north are not living in peace. He said the reports are general and do not take into account specific incidents.  He said there is still danger.  He said his wife told him that they are still looking for him. 

   [30] DFAT Country Report (n 5).

4. The Tribunal asked the applicant about his wife.  He said she is still working as a nurse in [Town 1] hospital and she has fears.  He confirmed that no harm has come to her but claimed that she is afraid as she lives alone.He said his son went to [a city] and had sought asylum in [that country] (application pending).  His daughter is residing in [a country] with her husband who is a national of that country.  The applicant is not suggesting that any harm has come to his wife and although there is no need to demonstrate past harm in order to show future harm, the fact that no harm has come to his wife is evidence that he (or she) is not of adverse interest to anyone.  For those reasons, the Tribunal is not satisfied that after he left Sri Lanka, anyone came to his home looking for him. 

5. In oral submissions, the representative acknowledged that being Tamil alone, or illegal departure are not sufficient, but it is a question of profile stemming from attending to the wounded LTTE, reporting of the shelling to the media, and the applicant’s abductions in 2010 and 2011.

6. As credibility assessment is not an exact science, the Tribunal recognises that great care must be taken to ensure that the approach taken is reasonable, reflective, and fair. In this case, the Tribunal has taken into consideration the fact that this applicant has been in Australia for a long time and his memory of the events may be fragmented. The Tribunal does not expect the applicant to have a perfect recollection of the claimed events and despite the applicant’s concession that he had exaggerated aspects of his claims, the Tribunal has accepted a number of the applicant’s central claims, including having worked with the [ORGANISATION 1], having worked from February 2007 until May 2008 in an LTTE-controlled area ([Town 2] hospital), being taken by the LTTE on two occasions to treat their wounded and provide first aid, being stopped and ill-treated at checkpoints, providing two photographs to media personnel, and his wife’s sister’s husband being abducted in 2008 and a death certificate being issued without the body being recovered.  The Tribunal is satisfied that being ill-treated at checkpoints would amount to serious harm.

7. The Tribunal will now consider the potential for future harm.

   Is there a real chance or a real risk of the applicant suffering serious or significant harm?

8. The applicant does not claim that he is, or has ever been, an LTTE member, supporter or sympathiser but the applicant is claiming, among other things, that he would be harmed for being a Tamil from the Eastern Province, a failed asylum seeker, and for having departed illegally. Although in oral submissions, a degree of concession was advanced by the representative in relation to those claims, in order for the Tribunal to fully-discharge its statutory obligations, the Tribunal will deal with those claims.

9. Whilst the Tribunal acknowledges that Tamils have faced a degree of discrimination and ill-treatment in Sri Lanka, on balance and on the basis of the available information, the Tribunal is not satisfied that being Tamil without more means that he would face harm amounting to serious or significant harm, or that he would be suspected of being associated with the LTTE merely on the basis of being Tamil (or on any other basis). 

10. The Tribunal notes DFAT’s advice that DFAT was “not aware of returnees in 2021 being detained for matters other than illegal departure (such as, for former membership of the LTTE)”.[31] Despite DFAT’s acknowledgment that due to COVID-19, there have been fewer returnees to Sri Lanka than in previous years, DFAT was not aware of detainees being subjected to mistreatment during processing at the airport.

    [31] DFAT Country Information Report (n 34) [5.18].

11. The Tribunal is satisfied that on balance, country information indicates that being a failed asylum seeker, a returnee from a Western country, and having departed unlawfully do not mean that there is a real risk or a real chance of serious or significant harm. The Tribunal is also satisfied that the Sri Lankan I&E Act is a law of general application, applied in a non-discriminatory manner and for legitimate purposes.  On the evidence, the Tribunal is not satisfied that the applicant would be imputed with an adverse political opinion because of his Tamil ethnicity, being from the Eastern Province, departing Sri Lanka illegally, and for being a failed asylum seeker returning from Australia.  The Tribunal is not satisfied that those factors mean that the applicant would be perceived as being a supporter of the LTTE, or that he would be imputed with pro LTTE or anti-regime views on those grounds, or that he would be harmed for any other claimed reason.

12. For the reasons provided earlier, the Tribunal has not accepted that the applicant has been detained on any occasion by the SLA and or any paramilitary group.  The Tribunal is satisfied that the applicant has at best embellished this claim.  Even if the Tribunal were wrong about this finding, the question would be, do those detentions give the applicant a profile of any adverse interest including connections with the LTTE.  The fact that the applicant managed to leave Sri Lanka lawfully to go to [Country 1], is highly persuasive evidence that he is not of any adverse interest.  As such and looking at the cumulative evidence, the Tribunal is not satisfied that any detention by the SLA and or any paramilitary group gave the applicant a profile of adverse interest or that he faces a real chance or a real risk of harm on this basis.

13. The Tribunal has accepted that neither the applicant nor any member of his family has ever been involved with the LTTE.  The Tribunal has also accepted a number of the applicant’s central claims, including having worked with the [ORGANISATION 1], having worked from February 2007 until May 2008 in an LTTE-controlled area ([Town 2] hospital), being taken by the LTTE on two occasions to treat their wounded and provide first aid, being stopped and ill-treated at checkpoints, providing two photographs to media personnel, and that his wife’s sister’s husband was abducted in 2008 and a death certificate being issued without the body being recovered.

14. The Tribunal is satisfied that on balance, credible independent country information fundamentally indicates that it is those who have actual or perceived strong LTTE links/sympathisers who can be targeted, which is not the case here.  The Tribunal is satisfied that those claims as accepted by the Tribunal occurred many years earlier including treating and providing first aid to wounded LTTE on two occasions, working in an LTTE controlled area and being stopped at checkpoints, having the wife’s sister’s husband with a human rights background and abduction, do not mean that the applicant has an adverse profile to lead to a real chance or a real risk of harm.  The Tribunal is satisfied on the evidence that to suggest harm on those grounds individually and/or cumulatively is far-fetched.

15. Looking at the evidence independently and cumulatively, the Tribunal is not satisfied that the applicant faces a level of discrimination or ill treatment amounting to serious harm on the basis of being Tamil. The Tribunal is satisfied on the evidence that the applicant does not have an adverse profile, or that he would be perceived as having any links or associations with the LTTE or for being a supporter, or an opponent to the Sri Lankan government, or that he would be targeted by the authorities or anyone else, or that he would be ill-treated as contemplated by the Act, or that he would be subjected to more scrutiny than other returnees because of his profile, or that he faces a real chance of serious harm on the basis of being a Tamil and has lived in Australia, or on the basis of his work in an LTTE controlled areas. In essence, and for the stated reasons, the Tribunal finds that the applicant does not have a well-founded fear of harm on those grounds, or any other grounds.

16. Therefore, in consideration of the evidence as a whole, the Tribunal is satisfied that the applicant does not now or in the reasonably foreseeable future have a well-founded fear of persecution arising essentially and significantly from one or more of the five Convention reasons if he returns to Sri Lanka on the basis of his illegal departure, Tamil ethnicity, being from the Eastern Province, a failed asylum seeker, or for any other reason. Accordingly, the Tribunal is not satisfied that the applicant is a refugee under section 36(2)(a) of the Act.

    Complementary Protection

17. The Tribunal has also considered whether the applicant is eligible for complementary protection. For the stated reasons, the Tribunal has not been satisfied that the applicant has any profile that would associate him with the LTTE, or that he is of any adverse interest to the Sri Lankan authorities. In consideration of the evidence as a whole, the Tribunal finds that there is not a real risk that he will suffer significant harm on the basis of being a Tamil from the Eastern Province. In essence and in consideration of the evidence as a whole, the Tribunal does not accept that there is a real risk of significant harm occurring to the applicant on any ground.

18. Regarding any harm the applicant may face in connection with the claimed treatment of failed asylum seekers and/or returnees from western countries, on the basis of the available information, including country information regarding what awaits a person in the applicant’s circumstances, the Tribunal is not satisfied that there are substantial grounds for believing that the treatment faced by the applicant, being a returned failed asylum seeker, gives rise to a real risk of significant harm as contemplated by section 36(2A) of the Act.

19. For the same reasons, the Tribunal accepts that the applicant will be viewed by the Sri Lankan authorities to be a person who departed Sri Lanka illegally (to Australia by boat and without a passport), and the Tribunal is satisfied that he will be questioned by the Sri Lankan authorities at the airport. For the stated reasons, the Tribunal is not satisfied that he has any adverse profile in Sri Lanka which will be revealed throughout the process or in connection with that process, or that he has a profile that would mean that he would be closely scrutinised, or ill-treated. The Tribunal accepts that the applicant may be in prison for a few days in conditions which are cramped, uncomfortable and unpleasant and he may have to pay a fine. Country information indicates that the prospect of the applicant being detained for a prolonged period of time is remote and not likely to result in hardship to the applicant that constitutes significant harm as contemplated by section 36(2A) of the Act.

20. On the evidence, the Tribunal is not satisfied that there is credible and consistent reporting of returnees being arbitrarily deprived of their life or the death penalty being carried out on them, or of being subjected to mistreatment including intentional mistreatment involving torture or cruel or inhuman treatment or punishment or the extreme humiliation required for an act or omission to be degrading treatment or punishment amounting to significant harm as contemplated by section 36(2A) of the Act.

21. While the Tribunal accepts, on the basis of the country information available to it, that the applicant may be remanded in conditions which are cramped and uncomfortable, the Tribunal does not accept that spending time in such conditions amounts to ‘significant harm’ as defined in subsection 36(2A) of the Act or that such treatment is intentional as is required in the definitions of cruel or inhuman treatment or punishment and degrading treatment or punishment. On the evidence before it, the Tribunal is satisfied that the conditions have not arisen due to demonstrable intent on the part of the Sri Lankan authorities to inflict severe pain or suffering. The Tribunal does not accept that there is a real risk that the applicant will be subjected to ‘torture’.

22. The definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Act requires that pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation. Mere negligence or indifference is not sufficient, what is required is an intention to inflict pain or suffering or to cause extreme humiliation. The Tribunal does not accept on the evidence before it that the pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is ‘intentionally inflicted’ on prisoners as required by the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Act. Neither does the Tribunal accept that the overcrowding and other problems are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment’.

23. In essence, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as a consequence of the poor conditions in prisons due to overcrowding during any period which he may spend in gaol.

24. The Tribunal finds that there is not a real risk that the applicant will suffer significant harm for any other reason or reasons.

25. On balance, on the information before it, the Tribunal is not satisfied that, the applicant’s profile, even when considered cumulatively with what is accepted of the applicant’s claimed risk profile and the independent sources, involves or creates a real risk of treatment amounting to significant harm as contemplated by section 36(2A) of the Act.

100.   Accordingly, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

CONCLUSIONS

101.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).

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

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

   DECISION

104.   The Tribunal affirms the decision not to grant the applicant a Protection visa.

Antoinette Younes
Deputy President

.