1819450 (Refugee)
[2024] AATA 2694
•21 February 2024
1819450 (Refugee) [2024] AATA 2694 (21 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Shamili Kugathas
CASE NUMBER: 1819450
COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Lilly Mojsin
DATE:21 February 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s36(2)(a) of the Migration Act.
Statement made on 21 February 2024 at 2:43pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – irregular maritime arrival – Tamil ethnicity – bus conductor - operated with permission of the LTTE – accusation of conspirator working for LTTE operated business – scarring – mother’s death due to beatings from Sri Lankan Army credibility issues – imputed political opinion – adverse ASIO assessment – data breach – immigration detention – participation in Tamil activities – social media activity – Sri Lankan authorities’ intelligence collection – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 June 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 21 October 2015.
The applicant arrived in Australia in September 2009 as an unauthorised maritime arrival.
On 24 November 2009 the applicant applied for a Refugee Status Assessment (RSA) and was interviewed by the Department on 9 December 2009.
On 18 December 2009 the Department found that the applicant was not owed protection and on 24 December 2009 the applicant applied for merits review with Independent Merits Reviewer (IMR).
On 16 March 2010 an IMR found the applicant was not owed protection.
An International Treaties Obligations Assessment, on 22 July 2010, found the applicant was owed protection obligations. A second IMR review found the applicant was owed protection obligations on 20 March 2011.
In February 2011 ASIO made an adverse security assessment regarding the applicant. This adverse finding was withdrawn in July 2014.
On 4 August 2015, the Minister lifted s 46(a)(1), allowing the applicant to lodge a Protection Visa.
On 21 October 2015 the applicant applied for a Temporary Protection Visa [PV].
On [date] the applicant’s 1st child was born in Australia and is an Australian citizen
On 4 April 2018, the Department conducted an interview and on 29 June 2018 the delegate refused to grant the visa on the basis that 4 July 2018.
The applicant appealed that decision to this Tribunal.
On [date], the applicant’s 2nd child was born, and is an Australian Citizen.
The applicant appeared before the Tribunal on 12 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.
The applicant was represented in relation to the review and the applicant’s representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
See annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
At an arrival interview, held on 16 October 2009, the applicant stated that he was born in [Town 1], Jaffna, in the Northern Province on [date]. He is of Tamil ethnicity.
In 2002 the applicant worked as a mini bus conductor. The buses could not operate without the LTTE’s permission. This was during the peace talks between the LTTE and the Sri Lankan government. In 2004 when the hostilities resumed, the LTTE encouraged the Tamils to move to the Vanni area.
In 2004 the LTTE anticipated an attack by the military. They began to hide from the public. A group called EPDP began to take control of the area with the help of the Sri Lankan Army. As the applicant and other bus company employees worked under the LTTE control, they feared that the EPDP might suspect them of being LTTE members or supporters. That fear made the applicant leave Sri Lanka.
The applicant left the country and went to [Country 1] in September 2004 to work. He returned to Sri Lanka in 2008 after 4 years in [Country 1]. He lived there lawfully 3 years and 1 year unlawfully. He was deported from [Country 1]. In the same year he went to India for 1½ months.
Refugee Status Assessment
In an application made 7 November 2009 for Refugee Status Assessment (RSA) and at an interview the applicant claimed that:
·He was displaced from his province in Sri Lanka due to military operations against the LTTE
·He claims his mother died due to beatings received from the Sri Lankan Army.
·He worked as a minibus conductor in Sri Lanka, with the bus company being operated with the permission of the LTTE, before hostilities between the LTTE and the Sri Lankan Government resumed in 2004.
·He cited fear that his working for an LTTE operated business would lead to the accusation that he is a conspirator, so he went to [Country 1] to work. he visited [Country 1] from [September] 2004 –[September] 2008. His visa expired in 2007, but he did not return to Sri Lanka until 2008.
·About four days after his return from [Country 1] he was arrested, threatened and ordered to leave Colombo. On payment of money he was released. He fled to India around mid October 2008 to mid December 2008.
·Whilst in [Country 1], the applicant claimed that co-workers from the bus company in Sri Lanka that he had worked for were shot dead and the company owner had been kidnapped.
·He sought the [Country 1] authorities’ assistance to effect his deportation and return from [Country 1] to Sri Lanka
·Upon his return, he went to Colombo instead of back to his hometown and was arrested and ordered to leave the capital. The applicant claims that this was because he was a young man from Jaffna. The applicant left in October 2008 to go to India.
·In India, the applicant was advised to return to Sri Lanka, where a people smuggler would help him get to [Country 2] in January 2009. The applicant claims that unstable work in [Country 2] led him to seek a people smuggler that would bring him to Australia, and he arrived in September 2009.
·[In] January 2009 the applicant went to [Country 2].
The IMR Reviewer at a hearing on 18 January 2010, where the applicant was represented by a different Migration Agent to the Agent who assisted him to prepare his Refugee Status Assessment (RSA) dated 7 November 2009 discussed with him that over the past several years he has travelled in and out of Sri Lanka without any apparent adverse interest shown to him by the Sri Lankan authorities - indicating he is of no interest. He said “just because I have been in and out you can’t say I don’t have any problems I cannot walk on the streets”. He obtained a new passport while he was back in Sri Lanka in about [2008].
The claimant said he had never been involved with the LTTE apart from working for the bus company controlled by them. He was just an employee, and the LTTE told them they had to do as they were instructed including putting a flag on the bus. Some of the workers said this would cause problems and they were told “we are the law”.
On 28 March 2010, the applicant lodged a statement reiterating his previous claims. He made new and additional claims that were not considered during the RSA and IMR processes. He said that in 2005 following a bomb blast the bus on which he was working was stopped by the SLA. He and the bus driver were accused of participating in the bomb attack and transporting weapons for the LTTE. They were beaten.
The applicant also claimed that in the course of his work with the bus company, which was controlled by the LTTE, he was also forced to participate in LTTE activities. These included participation in processions and meetings. On one occasion, there was a brawl in the area where he worked and the security forces came. He was shot by one of the security force members and he was [hit]. He managed to escape from the scene and made his way to Colombo. He received treatment in Colombo before he fled to [Country 1].
In October 2005, the applicant departed Sri Lanka and relocated to [Country 1]. He provided evidence of a 12 month visa for [Country 1] with validity until [October] 2006. He overstayed his visa however, and remained in [Country 1] until 2008 before returning to Sri Lanka. He left Sri Lanka for a second time in late 2008 and travelled to India on a tourist visa, where he remained for approximately two months.
The applicant claimed that while he was in [Country 1], a number of other Tamils who worked with the bus company were killed. On his return to Sri Lanka in 2008, he was arrested by the Sri Lankan authorities. He was released after he paid bribe. He fled to India. His father was interrogated by the Sri Lankan authorities regarding his whereabouts and his father was detained and tortured.
International Treaties Obligations Assessment
The International Treaties Obligations Assessment [ITAO] assessor found that the applicant had a personal profile that could place him at a real risk of adverse attention from the Sri Lankan authorities.
The assessor found that the harm feared by the applicant carried the requisite degree of complicity by public officials as to constitute torture. The assessor found the applicant was owed protection obligations under Article 7 of the International Covenant on Civil and Political Rights (ICCPR) and Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Publishment (CAT).
Protection Visa Interview on 4 April 2018
In the applicant’s Protection Visa Interview on 4 April 2018 the applicant, in addition to the above, also claimed the following:
·The applicant claimed that his father was harassed for his son’s whereabouts by the army, and taken to a camp and detained. The applicant’s father was released following a plea from the applicant’s aunt and grandmother.
·Due to the applicant’s activities in an LTTE operated business, the army’s suspicion of the applicant grew and he was shot [in] an incident in 2005 where the army came to settle a brawl that was happening.
·In Australia, the applicant was given an adverse security assessment by ASIO and the applicant claims that this assessment was viewable by the Sri Lankan authorities and would enhance their suspicions of his involvement with the LTTE.
Tribunal Submission
A submission to the Tribunal, dated 5 February 2024, stated:
·I was born in [Town 1] in the Jaffna District of Sri Lanka. I am a Sri Lankan citizen.I am a Hindu Tamil, born in Jaffna and who grew up and spent all his informative years of his youth in a village[which] was largely controlled by the Liberation Tigers of Tamil Eelam (LTTE).
·I am married to an Australian citizen [in] October 2015 and we share three children together. My three children are also Australian citizens.
·My mind has tried to completely block out what has happened to me in Sri- Lanka. I departed Sri-Lanka in 2009 and this is now nearly 15 years ago. I can only recall events when specific questions are asked of me. I suffer heightened stress and anxiety which in turn causes me to experience panic attacks, where I experience chest pain and difficulty breathing.
·I was detained in Immigration detention centre in Australia for five years, and my time in detention exacerbated my mental health, especially memory and my ability to recall. I have also been subject to so many different interview with various people, and this has also heightened my anxiety. I also suffer from heightened depression.
·Until I was [age] years old, I lived in an Liberation Tigers of Tamil Eelam (LTTE) controlled area. Throughout my childhood there was regular conflict between the Sri Lankan (SLA). To one side of us there were three SLA camps, one of which was engaged in active fighting, and on the other side there was jungle where the LTTE had camps. We were constantly caught in the middle of crossfire violence.
·Living in LTTE controlled areas meant, that I was exposed to various meetings and recruitment attempts from the LTTE. Throughout my childhood we were forced to live away from our home twice due to the severity of the conflict. During this conflict, my family’s home was destroyed and we are yet to receive any compensation from the Government.
·The SLA would execute arbitrarily round up of Tamils. I experienced the round ups multiple times during my teenage years. During one of the round ups, my mother was aggressively beaten in around 1999. Following this incident, my mother’s health deteriorated and she passed away in 2001 at [age] years of age.
·During the round ups, the SLA would ask us who were the supporters of the LTTE, or whether we knew who was responsible for bomb blasts in the area. Sometimes we did know who an LTTE supporter was, or who had been in the area before a bomb blast, but we could not say anything. Despite the region being controlled by the SLA, the LTTE continued their operations.
·In 2000, the fighting was so intense that we were forced to leave our home again. This time we went to a camp for displaced persons at [Location 1]. My family and I lived in a tent provided by the UNHCR. I was only [age] years of age when I was displaced in this camp. My family and I heavily struggled during our time in this camp. Whilst in this camp, I also had to take my mother to the hospital from this camp. I had a bicycle with a tray in the front which my mother sat on, and I would pedal her to the hospital. The hospital frequently turned us away and stated that they were unable to help us.
·After a while, we were able to return to our village in July 2001. By this time, I was [age] years of age. I did not return to high school after we came back from [Location 1]. Instead, I accepted a job as a labourer doing odd jobs in our village.
·In February 2002, the government of Sri Lanka (GoSL) and the LTTE signed a peace agreement. This created big changes. We no longer had to register with the SLA each month. After the peace agreement was signed, the A9 highway re-opened and it is the main road connecting Jaffna to Colombo.
·When the A9 reopened, a lot of people bought buses as a new business because everybody wanted to travel on the A9. In about mid-2002, I got a job as a bus conductor on the A9 road. I was [age] years old, and I did not have any educational qualifications because my schooling had been so interrupted due to the conflict. It was a new industry and there was work available. After I started this work, my uncle decided to buy a bus and I worked as a conductor on his bus. I worked for a private bus which was under the administration of the LTTE
·I was often approached by the LTTE while I was working as a bus driver. I was also not allowed to take fares from LTTE which meant that I was able to differentiate between LTTE members and civilians.
·In late 2004, and more so in 2005, tension began to rise between the LTTE and the SLA as the ceasefire began to breakdown. Bomb blasts, round ups and kidnappings started to become part of life again. At this time, bus drivers began to be suspected of transporting weapons for the LTTE because we travelled to the border of Vanni, and we passed through checkpoints.
·It was also rumoured that some drivers were asked to carry weapons for the LTTE on their buses, and that some drivers would agree to do this. I never had any direct knowledge of this, but I did hear rumours. However, I was never asked to carry weapons for the LTTE, and I never carried any weapons for the LTTE. However, I agreed to allow the LTTE to decorate my bus with flags and banners and post slogans for events such as Heroes Day, Karumpuli Naal, Pongu Thamil. We would be notified by letter when our bus would be utilised for these purposes. I knew I had to compromise and agree to some tasks, if not, would not be permitted to work as a bus driver.
·The LTTE would request private operators to use their bus to take LTTE members to and from processions and meetings. The LTTE would approach the bus company before their commemorative days and say that they would need a certain number of buses to transport people to and from events. If the bus company had said no, it would have been out of business. At times, I was also directed to drive buses on these occasions.
·I would be instructed to drive to events like concerts, processions, and meetings. On some of these occasions the LTTE would decorate our bus with flags and banners, and sometimes paint slogans on the side of our buses. We knew this would cause problems with the SLA and we tried to negotiate to limit the number of flags and slogans, but the LTTE would often ignore our concerns. My bus was used to transport civilians to the capture of elephant pass festivities. The Sri-Lankan army would often video these gatherings.
·The events that I took people to were usually in the Jaffna region. There was this one time where I also had to assist the LTTE in cleaning one of their cemeteries. This was when somebody had died and an area in the cemetery had to be cleaned. I had to drive several people to the cemetery and these people had to work cleaning tombstones and statues in the area where the person was to be buried.
·Sometime in May 2005, there was a bomb blast near [a] Hospital which is close to [Location 1]. The blast was at a [shop] across the road from the hospital. After the blast, the SLA cordoned off the area and stopped all vehicles entering the area. During this bomb blast, I was working as a conductor and my bus arrived in the area after the blast. My bus had stopped along with all the other vehicles entering the area. All the vehicles were searched, and all passengers were instructed to get off the bus one by one. The officers searched each passenger and checked all our bags.
·The SLA officials asked me where we were coming from, and I said that we were coming from [Location 1]. As soon as I said this, one of the men kicked me in the back and I fell over. We were repeatedly beaten. The officials said words to the effect of; “it is people like you who are responsible”, insinuating that private bus companies were responsible because they were coming from the LTTE checkpoint. Till now, I still possess back pain from this incident and whenever I feel the pain, it reminds me of that day.
·The driver told the SLA officials that he was only working for a wage and that it was my uncle who owned the bus. I was arrested and taken to an SLA camp. I was assaulted for a day, and then I was questioned for another two days. I was asked questions about the bomb blast and whether I or anyone I knew was involved. My family came to beg for my release, and I was let go after three days in the camp. It was common for the authorities to detain Tamil men, and beat and torture them and release and then continue to re-detain.
·I went straight back to work after I was released. It was my job, and I did not have any other options. Although driving a bus became somewhat of a dangerous job, I had to persevere as my family was dependent on my income. I had left school without any qualifications, and I did not know of any other work that I could obtain. However, the incident scared me, and I began to fear for my personal safety. I knew of other drivers who had been arrested or kidnapped and had not returned. I also knew of one driver who had been murdered.
·In September 2005, another brawl occurred outside [Town 1] train station. The brawl was across the road which I needed to drive on. During this, I was sitting in the bus driver’s seat waiting to see if it was going to become safe to drive down the road when I saw a couple of people watching me from a tea stall. They were in civilian clothes, and I did not recognise them. I was scared that they were EPDP, and because of other bus drivers that had been arrested or kidnapped, I was worried that these men were going to take me or shoot me. I was scared because I could not drive away using the road, as it was blocked, and because of the timekeeper’s warnings to be careful . During this time, I was very paranoid and fearful for my safety, given what was happening to other bus drivers.
·I got out of the bus and started to walk away because I was scared. However, my passengers were still on the bus. When I turned around, I saw that the men from the tea stall had also stood up and were walking in my direction. This confirmed that I was being followed. I started to run towards the station. In response, one of the men started to ride their motorbike.
·There was a barbed wire fence next to the railway track and I tried to escape by jumping over it. One of the men following me then fired a shot and the bullet hit me [and] exited from the front. Whilst I was escaping this group of men, I was very afraid that I was going to be caught and killed. However, I managed to get over the fence and continue running towards the nearby residential area. I kept running because I knew that the EPDP do not go into residential areas. If they do, the villages put logs on the road so that they cannot escape. I continued to run through a vacant lot after I got over the fence and ran towards a street with a temple and shops nearby. At some point, I passed out and when I regained consciousness, I was surrounded by people and I asked to be taken to my house, but the Tamil men said that it was best that I not go home, and so I asked to be taken to my aunty’s house.
·Around few days later I received medical treatment from a doctor in my village, named Dr [A]. Dr [A] removed the bullet from my leg. I knew Dr [A] as he has always lived in our village, and he provided treatment to me at great personal risk to himself. He was scared about treating me and my family had to keep the fact that he treated me a secret. I was medically examined [in] April 2010 and found to have substantial scarring consistent with a bullet wound. I do not have a copy of this report, but it has been previously provided to the Department.
·Evidence that I was shot appeared in the news. This has been previously provided to the Department.Attached is a copy of this news with English translation.·After this incident, I decided to remain inside my village and not leave the area until I was able to flee Jaffna. During this time, I constantly moved around several different houses and sometimes, I would even sleep in the jungle. I was extremely fearful each time I slept in the jungle because I had heard stories about spirits living in the jungle. Due to this, I always strove to stay in or as close to residential homes as possible. This situation lasted for around two months.
·My family and I knew that I needed to leave Jaffna, or I would lose my life. This is why we started to prepare for me to get out of Sri Lanka, including applying for a National Identity Card.
·My [brother] was already working in [Country 1]. [Country 1] was the easiest country for me to go to as there are many Sri Lankans living and working in [Country 1]. My brother was also able to arrange a visa for me through the company he was working. I did not need to do anything, but provide my passport to my brother. I travelled to [Country 1] in October 2005. This is more than 18 year years ago and I do not remember the specifics of the arrangements made. My brother did all the arrangements along with an agent. Because I was travelling on a work visa, my departure from Sri-Lanka as not scrutinised.
·The scariest part of the journey was getting to Colombo as I had to travel on a bus down the A9 Highway and pass through several checkpoints. Passing through the checkpoint at [Location 1] was one of the scariest moments of my life. I was terrified that I would be pulled off the bus and be taken away. I travelled on a government bus as I thought I would have a better chance of blending in. I was worried that on a private bus, someone would recognise me as a driver or conductor, and attract attention to me.
·When I arrived in Colombo, I went to [Country 1] as soon as my National Identity Card and passport was issued to me. An agent was utilized to arrange my travel to [Country 1] and I was assured that I would face no problems or questioning at the airport. I paid a lot of money to this agent as he said money was needed to pay off the staff at the airport.
·During my time in [Country 1], my health deteriorated. My symptoms included bleeding from the mouth and severe hair loss. Eventually, I went to a doctor who said that it was caused by the intense heat in [Country 1]. The doctor told me that some people reacted like that to the intense conditions and that there was no treatment for it.
·I continued to stay in [Country 1] despite my illness, but my health continued to worsen. I stayed in [Country 1] for three years. I did not travel to Sri-Lanka within these three years. Eventually, I made the decision to return to Sri Lanka. My decision was motivated by the fact that I was also living illegally in [Country 1] as my visa was only valid for 12 months, and an agent had promised my passage back to Sri-Lanka and departure out again very quickly. I did not have the option of seeking asylum in [Country 1]. I arrived back in Colombo in approximately September or October 2008.
·After returning to Sri-Lanka I remained in Colombo as I was waiting for the agent to arrange for my departure outside Sri-Lanka again. Three or four days after I arrived in Colombo, a couple of police officers or members of the SLA came to the hotel where I was staying. Sri-Lankan Authorities often conduct searches of hotels to monitor and intimidate Tamils.. They stopped me and asked where I was from, then searched my room. They took all my cigarettes and then arrested me. This may have been just because I was a young male from the Jaffna area. They started to walk me away from the motel and said that they were going to take me to a camp. The hotel owner and I negotiated with them, and I was released after paying some money. I was warned that I would be arrested again if I stayed in Colombo and was told to return to Jaffna immediately.
·By that time, the A9 Highway had been closed again, and the only way to travel to Jaffna was by ship. Around the same time, the SLA went to my family home in [Town 1] and abused my father. They were aware of my return to Sri Lanka and demanded that he tell them where I was. When my father said he did not know where I was, he was taken to an army camp where he was beaten and tortured. My grandmother and aunts repeatedly went to the camp to plead for his release. He was eventually released, but I know knew that I would have to leave Sri Lanka immediately.
·I approached another agent in Colombo and enquired about [Country 2]. I wanted to go to [Country 2] as I thought I could get work there because there was a Tamil community. My agent said he could not get me a visa to [Country 2] at that time and that I needed to wait. The only visa he could obtain for me was a three-month visa to India. I did not think I had a choice as I had to get out of Sri Lanka quickly. I left Sri Lanka for India in about October 2008. While I stayed in India, my brother sent me money from [Country 1] to help me pay for my necessities.
·My family in Jaffna also raised money for me to pay an agent in Colombo. I do not know all the details of how my family raised this money. They always told me that they would organise the money and that all I needed to do was keep myself alive.
·In India, if you are a Sri Lankan Tamil, you are looked down upon. A Sri Lankan Tamil cannot secure employment. Most people would not hire a Sri Lankan Tamil because there is a preconceived notion that they will cause trouble. I did not have any friends, nor family in India. At this point I was sick of not living in a country where I could call home. Already in Sri-Lanka, I was displaced on numerous instances and I was questioned on numerous instances. I knew Sri-Lankan Tamil asylum seekers in India were never given citizenship status.
·While I was in India, my agent contacted me and told me that he was able to get me a visa for [Country 2], but I had to go back to Colombo to get the visa into my passport. The agent told me that he would arrange travel to another country from [Country 2] where I can settle down permanently. The prospect of finally leaving a life of uncertainty behind me is what influenced my decision to return back to India. The agent also promised my safe unscrutinised passage through the airport, and this is what cost a lot of money,
·I returned from India in December 2008. My stay in Colombo was very brief. When I received my visa to [Country 2], it was valid for only one month, but my agent promised me that he could use his contacts to secure a longer visa. Before I left Colombo for [Country 2], my family transferred $3000 (USD) into my bank account so that I was able to pay my agent for his services.
·I flew to [Country 2] in early January 2009. When I arrived at the airport in Kuala Lumpur, I paid him a large sum which my family gave to me. On arrival, he took me to an apartment in Kuala Lumpur. I shared my flat with around 7 other Tamil men.
·When I first arrived in [Country 2], I avoided leaving my flat. I only left my home to go to the shops or to a nearby park. Sometimes my agent would deliver food, and sometimes he would give us money to go out and buy food. However, I had a profound fear that I would be arrested. If I had to buy food, I would only buy in bulk so that I did not have to leave my home so often. I would also visit the park at times. The park was a place where a lot of Tamil people, especially families, would gather. I often made friends and spent time with them. However, I would not spend a long time at the park mingling with other people as I was always never being outside of my home. I was always watching police cars and weary of my surroundings because I was always terrified that I would be deported back to Sri Lanka.
·In my second month in [Country 2], the police came to our apartment complex and knocked on everyone’s door, asking us all to come to the car-park with our passports so that they could check our visas. A lot of Tamils were being arrested because of not possessing visas.
·My agent mentioned that he knew of another house that I could go to and stay in. I stayed in this house for approximately 7-8 months. I tried registering with the UNHCR twice, but to no avail. I was constantly living in fear from the police. I had not planned on going to Australia, but when the opportunity arose, I took it. My family promised the agent that he would be paid if he was able to organise the trip.
·After 23 days at sea, we arrived at Christmas Island in September 2009. At some point on Christmas Island, I was assigned a lawyer. Initially, I did not give a detailed account of my experiences and I did not talk about the abuse, harassment, and persecution which I suffered. My lawyer and interpreter explained to me with words to the effect of; “The government knows that there are problems in Jaffna, so you do not need a big case, just get the documents to prove that you are Tamil and give a brief statement”. He created a sense of hope in me because he said, “you are a Jaffna Tamil and that will be sufficient”. Since my lawyer assured me that all I needed to prove was the fact that I was a Jaffna Tamil, I obtained copies of my birth certificate, National Identity Card, and bus conductor certificate to prove I was from Jaffna.
·My lawyer also advised that if I discussed my gunshot wound and revealed that I had driven a bus to the LTTE checkpoints, I could have ‘problems’. He did not explain what he meant by ‘problems’, but I started to worry. My biggest fear was, and still is, being deported back to Sri Lanka. My lawyer explained that if I were to talk about my gunshot wound, officials would ask more questions. I was made to think that it would be assumed that I was in the LTTE as a cadre if I revealed I had gun-shot wounds. My lawyer did not allow me to go into all the details relevant to my case. When I explained to him my story, he told me that I should keep my answers brief as much as possible, and to only reply with a ‘yes’ or ‘no’. When I tried to give my lawyer the details of my troubled background, he would cut me off and say, “you will have problems”. I gave him a lot of information, but the statement he wrote for me was very short and did not consist of all the relevant information regarding my background. During the recording of the Refugee Status Assessment interview with Immigration, he would put up his hand to indicate when I should stop talking.
·Since I trusted the advice of my lawyer and interpreter , I did not go in depth about my adverse experiences in Sri-Lanka. The information I disclosed to Immigration was very brief. I only talked about what I was asked to do for the LTTE while I worked as a bus conductor and driver. However, I did not go beyond that. I did not disclose the suspicions that the SLA had about me, or that they or the EPDP had shot me. I did not tell the Immigration officer all this relevant information out of fear that I would be deported and be arrested or killed if I return to Sri Lanka.
·On 24 February 2011, I received notification that I had received an Adverse ASIO clearance. On 9 April 2011, I received notification of positive independent merits review.
·On 12 March 2014, I received notification that my details had been leaked by the Department as part of a privacy breach. Details as to name, where I was detained, nationality and reason for detention were published online. The fact that I was detained due to an adverse ASIO assessment was leaked. On 4 July 2014, reviewer Margaret Stone cleared ASIO’s adverse assessment of me.
·As a result of my initial adverse ASIO certificate I was detained at Villawood Immigration Detention centre for five years, and only released on 17 July 2014.
·Since my departure from Sri-Lanka my father has been beaten and interrogated and beaten by the military and my brother had also been interrogated about my activities in Australia. My brother has been specifically asked about my ASIO assessment. This was on his return to Sri-Lanka from [Country 1] at the airport.
·I am now fearful of returning back to Sri-Lankan for the following reasons:
·On return to Sri-Lanka, I will be returning on a temporary travel document and it will be known to the Authorities that I have been absent from Sri-Lanka for more than 15 years and that I have sought asylum in Australia. This will mean that I will be taken away for further questioning and it will become known that I had received an adverse ASIO assessment due to the fact that this has been a well publicized fact.
·The CID and TID will interrogate me. Moreover the CID know I was shot because it appeared in the news and there will be record of this, and because I still have [scarring].
·CID will have in their file of me that I was given a negative ASIO assessment and that this was due to ASIO thinking I had strong links with the LTTE.
·I already have a history with the Sri Lankan authorities which include my gunshot wound, my work as a bus driver in LTTE controlled area, the fact that I was interrogated and tortured and accused of smuggling stuff for the LTTE, and my time in [Country 2].
·This profile will lead to a long and protracted interview with CID, which brings with it real risks of either / or / and prolonged imprisonment, prolonged interrogation, accompanied by beatings and other forms of torture.
·This will be done to get me to admit to being LTTE and / or confess the names of other LTTE members in Sri Lanka, Australia, [Country 1] & [Country 2].
·I suffer from heightened anxiety and trauma, and any interrogation and questioning conducted by the Sri-Lankan Authorities will amount to serious harm.
·During my time in Australia, I have attended various Tamil memorial events and posted material against the Sri-Lankan regime on my [social media] account.
Pre- hearing Tribunal Submission
The applicant provided to the Tribunal a submission dated 31 October 2023 and it was submitted that if returned, as a consequence of his imputed political opinion, the applicant will be investigated by state security apparatus such as the CID, TID, Sri-Lankan Army and faces a real chance of persecution by those same authorities during such investigations. The submission made particular reference to an article published by the World Socialist Website, Australia: ASIO assessments condemn refugees to indefinite detention [1] and a Lateline interview ‘Tamils speak out about ASIO ruling’[2]. The Sri Lankan High Commissioner, in that Lateline interview stated that
“We have good relations with Australia We have very good relations with Australian Government Authorities and we have agencies cooperating each other regarding the intelligence, I am unable to give you specific reasons when ASIO make judgement about a particular person they would have good reasons to believe that he has certain connections and whether he is at risk for such people to be given asylum. I will not go into detail. We share information…… and where possible we have shared.
[1] Australia: ASIO assessments condemn refugees to indefinite detention - World Socialist Web Site (wsws.org) Australia: ASIO assessments condemn refugees to indefinite detention, Tamils speak out against ASIO security rulings (youtube.com)
It was also submitted that during his prolonged detention at Villawood Immigration Detention Centre, the applicant was visited by various groups, organisations, and people. Some of these people would accuse the ASIO assessed detainees of being ex LTTE members or assisting the LTTE. They reported this to the immigration centre management as well as to the immigration case managers. As a consequence of this, visiting rules changed, allowing the detainees to previously be notified about who their visitors were. Moreover, the applicant instructs that since his release into the community in 2015, the Tamil community easily identifies him as a Tamil who has received an adverse ASIO security clearance, and that this information is also easily accessible by the Sri-Lankan government.
Also submitted were the following documents:
§HYYL v WP and Secretary Department Home Affairs[3] - decision of Freedom of Information Division of AAT that included summary of information released by Department in its data breach and classification of reasons for immigration detention
§Notification of Data Breach
§ASIO security assessment made under subsections 17 (1) (c) and 37 (1) of the Australian Security Intelligence Organisation Act 1979 (ASIO Act)
§Letter from Independent Reviewer of Adverse Security Assessments, advising ASIO had issued a non-prejudicial assessment
§[Social media] pages illustrating various posts that have been posted and shared by the applicant.
§STARTTS Report dated [October 2023] prepared by [a] Counsellor/Project Officer
§Medical Report [dated] 31 October 2023
Tribunal hearing 12 February 2024
[3] AAT 2021/1143
At the Tribunal hearing the applicant stated that he was born in [year], he is married and 3 children. they are [ages]. He works [and] has been working from 2014. His wife is an Australian citizen. He has no other family here. His family, his father, [sister] and [brother], all live in Sri Lanka.
He was not able to finish school in Sri Lanka, he finished [grade] and attended [the next grade] for a while. He was about [age range]. In about 2000 he was in year [grade]. He was in his village and then [Northern] province. Many times they were displaced. In 2002 he worked as a bus conductor for his uncle’s bus. He worked for him for nearly 2 years. His uncle is still in Sri Lanka and he stopped running the bus company in 2004 or 2005. The applicant left Sri Lanka in September 2004. He was deported from [Country 1] in 2008.
I asked when he went to [Country 1] and he said it was in 2004-5 he went in that period. At that time his brother was in [Country 1]. He did not go on a tourist visa. He had to save his life. He was able to work in [Country 1]. He returned to Sri Lanka in 2008. Maybe about a month later he went to India for 3 months. He was there for 1.5 months, it was 3 month visa but before it expired he returned. He returned back to Sri Lanka. He does not remember the date. He went to [Country 2] in January 2009. In December 2008 he returned from India.
Discussing his passport, I put that it was in his name, and he no problems going in and out of the airport. I expressed my difficulty accepting he required an agent to pay bribes because the independent evidence indicated there was an effective system flagging people of interest. He said getting bribes is the way it happens. The agent does everything. He does not know the officer he only knows the agent.
I put that he did not have any fear returning to Sri Lanka previously. He disagreed and said he was fearful to come back to his country. He said that if he stayed in India they would have arrested him and filed a false case. He did not return happily from India.
I asked him why the Sri Lankan authorities would harm him and he said that in his village he was affected so much. He wanted to get out. He went to Colombo when the authorities were enquiring about people. He was staying in a room in Colombo and they came and threatened him when he came back from [Country 1]. He was so fearful and worried and not able to go through the airport.
During the peace he was supportive of the LTTE and for their functions, he drove a bus for them. He was supporting and demanding them to bring the bus. That time some people were working with him. I put to him that he had stated he was a bus conductor and asked how he could drive the bus. He said this is for LTTE functions. I put to him that he did not claim to be an LTTE driver for their functions. He said he used to drive because it was for LTTE. When he came out of Christmas island they did not let him talk. They were taking the interview.
His main problem was LTTE as they put up posters and flags. He was not a member but a strong supporter. They used to go into the village and talk to people and get them on the bus. They went to Martyr’s Day functions. He was decorating and organising functions. He was a very active supporter of LTTE. He did not raise funds for the LTTE The purpose of the functions was Martyr’s Day and Remembrance Day.
In Sydney he goes to the functions, to Martyr’s and Remembrance Day. He is not a fund raiser here in Australia. He is organising functions and bringing tombs. He was doing this from the time he was released until now. He has not featured in any media articles. During the time he was in detention [deleted. I put that he has not provided any photos of himself. His representative stated they exist.
In regard to being shot [in] Sri Lanka, he said he cannot remember when it happened. It was 2004 maybe 7th month. I put that he had stated it was 2005 to the Department. When shot he was a bus conductor, from the LTTE area, they got the people and were coming, there was a riot and crowds. There were 2 or 3 people in civil clothes. He was shot by EPDP. One was on a bike and another was the shooter who shot at him when he got off the bus and was running away. I put to the applicant that the claimed newspaper report attached to the his submission was not so attached and was not received by the Tribunal. The representative said that she would supply that newspaper report. No report has been received, to date.
In regard to the data breach, the applicant does not have a copy of it. The representative said that the applicant’s details were disclosed. She referred to a report by the Privacy Commissioner and said that the reasons for the applicant’s detention was named.
Discussing the AAT Report Freedom of Information Division I put to the applicant that in regard to the data breach, the reasons for detention was not written, only a category of application and I presumed the applicant’s category was one of about 8 categories and it would have been classified as ‘irregular maritime arrivals’.
The applicant fears returning to Sri Lanka. He has lived here for 15 years and his personal information was released and they will torture and harm him in a cruel way. They will look at media pictures. They detained him for 5 years and ASIO stamped him as LTTE.
The applicant’s Australian wife has been diagnosed [with a health condition]. They have 3 children and [deleted] in December 2023. She is hospitalised.
COUNTRY INFORMATION
In accordance with the Ministerial Direction No.84 made under s.499 of the Act, I have also had regard to the country information assessments prepared by DFAT. I have considered the DFAT report on Sri Lanka dated 4 November 2019 (the DFAT Report) and the most recent report of DFAT 23 December 2021. The information in this recent report is consistent with that contained in the 4 November 2019 report in respect of matters relevant to this application.
The Sri Lankan Civil War started in 1983. The Second Eelam War between Colombo and the Tamil Tigers commenced in June 1990. The Sri Lankan Civil War formally ended in May 2009 with the Sri Lankan Army [SLA)] defeating the separatist Liberation Tigers of Tamil Eelam [LTTE].
Tamils are the second largest ethnic group in Sri Lanka. Tamils have a substantial level of political influence and their inclusion in political dialogue has increased since the change of government in 2015. The US Country Reports 2015 indicates that in November 2015, 'the government removed the ban on eight Tamil diaspora organizations and 267 individuals on the previous government's watch list.' According to Freedom House, members of various Tamil political parties (in the north and east), who have faced frequent threats in the past faced less intimidation in the lead-up to the January 2015 election. Tamil civilians faced fewer hindrances in voting during both the April 2015 presidential and the August 2015 parliamentary polls, in contrast to the 2010 elections. President Sirisena, in early 2015, appointed a civilian governor in Northern Province, replacing a retired army commander, where Tamils comprise a majority.
On 17 November 2019, Gotabaya Rajapaksa was elected as President in the Sri Lankan presidential election. Rajapaksa served as defence secretary during his brother Mahinda's 2005-15 presidency and led a brutal crackdown on Tamil Tiger separatists. Rajapaksa orchestrated the Tamil genocide, which culminated in several tens of thousands of Tamil deaths. Speaking at the elections commissions' office soon after the results were officially released, Mr Rajapaksa assured fair treatment for all. Nevertheless, his election has raised fears among the country's religious and ethnic minorities, including the Tamil population.
In 2022[4], the country caved into a severe economic crisis and as result mass antigovernment protests took place across Sri Lanka. The protesters demanded that the country's president at the time, Gotabaya Rajapaksa, and his government step down. The protestors also demanded amendments to the constitutions and to reduce the powers of the President. After Gotabaya Rajapaksa stepped down Wickremsinghe was elected president by parliament. In October 2022 the 21st Constitutional Amendment was introduced as plan to empower parliament over the executive president and curbs some of the powers of the president. Under the 21st Amendment, the President, the Cabinet of Ministers and the National Council will be held accountable to the parliament. Fifteen Committees and Oversight Committees are also accountable to parliament.
[4]
DFAT’s most recent report on Sri Lanka dated 23 December 2021
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 Batticaloa, 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.
……………
3.41While 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.
3.42Former 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.
3.43The 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.
3.44The 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’.
3.45Since the end of the war, successive Sri Lankan Governments have managed a large-scale ‘rehabilitation’ process for former LTTE members. The aim of the 24 rehabilitation centres was to process LTTE members who surrendered in the final stages of the war and to assist them to adjust to a life after war, with a focus on vocational training. According to Sri Lankan Government statistics from March 2019, 12,191 former LTTE members (including 2,265 women) had completed rehabilitation. Some centres previously used to rehabilitate former LTTE members have since been redeployed for the purposes of rehabilitating drug addicts and possibly Muslim detainees under the PTA.
3.46Local sources have previously estimated that between 4,000 and 6,000 former LTTE members are undisclosed and non-rehabilitated, the majority of whom may now be living overseas. Military sources have previously estimated the number of undisclosed and non-rehabilitated former LTTE numbers within Sri Lanka as being low, including approximately 280 individuals in Jaffna (Northern Province).
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.
3.48DFAT 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 completed 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.
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.
3.50Some Tamils with actual or imputed LTTE links (including those who fought for the LTTE or were part of its civilian administration) continue to report police monitoring and harassment. Multiple sources in the north told DFAT that former LTTE members, including those considered low-profile, are monitored to guard against the LTTE’s re-emergence. Testimonies provided to ITJP show that such harassment can include: frequent visits by police, visits to family members, threats and seizure of mobile devices.
3.51Local sources also claimed the authorities – usually undercover police officers or intelligence agents – sometimes used more subtle methods, for example inviting individuals to tea in public places and asking questions about their activities. Such questioning did not involve violence. Telephone calls were also common. Some sources claimed questioning was sometimes indirect, and involved questioning the neighbours of suspected former LTTE members. Sources told DFAT that monitoring of former LTTE members was less extensive in the Eastern Province, insofar as many there had defected during the latter years of the war and aligned with the Government as part of the Karuna Group/TMVP.
3.52DFAT assesses that, while they may be monitored, Tamils with former links to the LTTE, and who are not politically active, are generally able to lead their lives without concern for their security as a result of their past association with the LTTE.
3.53At least one million Sri Lankan Tamils live outside Sri Lanka, mostly in Canada, Europe (with large communities in the UK and France), Australia and India. Members of the Sri Lankan Tamil diaspora may be citizens or legal residents of those countries, or dual nationals. Some members of the Tamil diaspora return to Sri Lanka to visit family members, for holidays and for business. Remittances from the Tamil diaspora provide an important source of income for family and community members in Sri Lanka.
3.54Some members of the Tamil diaspora played a central role during the war, as a source of funding, weapons and other material support for the LTTE, and as political advocates for an independent Tamil state. Some Tamil diaspora groups continue to hold public demonstrations in their countries of residence for an independent Tamil state. High-profile leaders of pro-LTTE diaspora groups, particularly diaspora groups banned under Sri Lankan law, may come to the attention of Sri Lankan authorities because of their participation in such demonstrations. The Sri Lankan Government continues to assess that elements of the Tamil diaspora remain committed to a separate Tamil state. The UK Upper Tribunal in its May 2021 ruling on Tamils engaged in activities in the UK found that a range of political activities such as ‘attending meetings and demonstrations, holding flags or banners displaying the LTTE emblem, attendance at commemorative events, meaningful fundraising, any presence on social media, signing petitions’ may be perceived by the Government of Sri Lanka as threatening and it may trigger official harassment upon return.
3.55In March 2021, the Sri Lankan Government proscribed a number of Tamil diaspora groups including the Australian Tamil Congress and the Tamil Youth Organisation (Australia), as well as a number of individuals based in Australia, the UK, Germany, Italy, Malaysia and several other countries. The Australian Tamil Congress and the Tamil Youth Organisation are not proscribed in Australia, while the LTTE remains a proscribed organisation in Australia.
3.56Approximately 95,000 Sri Lankan Tamils live as refugees in Tamil Nadu, India.
3.57DFAT assesses Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their security risk profile. DFAT assesses that following Tamils would be of particular interest to the authorities: those who hold leadership positions in Tamil diaspora groups, particularly groups deemed by the Sri Lankan Government to hold radical views; those who were formerly part of the LTTE, particularly in – but not necessarily limited to – high-profile roles; those who are suspected of raising funds for the LTTE during the war; and those who actively advocate for Tamil statehood. Those Tamils living abroad with links to the LTTE are unlikely to return to Sri Lanka voluntarily.
REASONS AND FINDINGS
The Department has accepted the applicant’s national identity card and a student identity card as evidence of the applicant’s identity, I therefore accept that the applicant is a national of Sri Lanka and is not a national or citizen of any other country or has a right to enter and reside in any country other than Sri Lanka. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Sri Lanka is the applicant's “receiving country” for the purposes of s.36(2)(aa).
I accept that the applicant is a Hindu Tamil from [Town 1] in the Jaffna District of Sri Lanka and spent all his formative years in a village[that] was largely controlled by the Liberation Tigers of Tamil Eelam (LTTE). The family were forced to live away from their home twice due to the severity of the conflict. During this conflict, his family’s home was destroyed and they are yet to receive any compensation. He was the rounded up multiple times during his teenage years. In 2000, the applicant was [age] years of age, the fighting was so intense that the family were forced to leave their home again. They went to a camp for displaced persons at [Location 1] and lived in a tent provided by the UNHCR. In 2001 the family returned to their village. In February 2002, the government of Sri Lanka (GoSL) and the LTTE signed a peace agreement. The applicant got a job as a bus conductor and worked on the bus, owned by his uncle, until he left to go to [Country 1]. I accept that there were times when he was beaten and harmed during the war years. I accept that the applicant had a gunshot wound but I have no evidence, before me, that I can be satisfied that the gunshot wound occurred in the manner described by the applicant ie when he was sitting at a bus station and was shot by the EPDP.
The applicant’s claims regarding his involvement with LTTE changed from when he first arrived in Australia until the Tribunal hearing. Initially it was claimed that the buses on which he worked were required to carry the LTTE flag and this claim developed until at the Tribunal hearing, the applicant claimed that LTTE would request private operators to use their bus to take LTTE members to and from processions and meetings. On some of these occasions the LTTE would decorate the bus with flags and banners, and sometimes paint slogans on the side of the buses. His bus was used to transport civilians to the capture of Elephant Pass festivities. The Sri-Lankan army would often video these gatherings.
It was also not until after the first IMA decision that the applicant claimed that in September 2005 another brawl occurred outside [Town 1] train station and he was shot at by the EPDP. Further he claims that there was a bomb blast near [a] Hospital in May 2005 and he was kicked in the back, assaulted and held for 2 days.
I not persuaded by his explanation that his lawyer advised that if he discussed his gunshot wound and revealed that he had driven a bus to the LTTE checkpoints, he could have ‘problems’ or that his lawyer ‘did not allow him to go into all the details relevant to his case’, just that he should ‘keep his answers brief as much as possible’, and to only reply with a ‘yes’ or ‘no’. I am not persuaded by this explanation, the applicant had 2 different migration agents representing him at the initial stage of application and then the IMA review. I not accept that registered migrations would both not give him the opportunity to explain his claims. I am of the view he has created this claim in order to overcome the subsequent evidence provided.
The applicant’s evidence at the hearing also was confusing regarding when he left Sri Lanka and when he returned. Whilst the applicant has depression and claims to have difficulty recalling events and appears to confuse dates the applicant left Sri Lanka, with a passport issued in his own name, and returned on two occasions.
When I put to him that he was able to obtain a passport in his own name, he said an agent got everything organised for him. I accept that passport and visa consultants obtain passports[5] and visas in Sri Lanka therefore I accept that the applicant had an agent assisting him to obtain a passport. But he claims that he used the services of an agent who paid bribes not only for the applicant to obtain a passport but also to effect his entry and or departure from Sri Lanka via the airport. It was not until the after the findings made by the first IMR that the applicant claimed that he had paid an agent to obtain his passport. I am not persuaded by this claim.
[5] Issue of Passports (immigration.gov.lk)
Traveller entry and exit controls for [BIA] are the responsibility of the Sri Lankan Department of Immigration and Emigration[6]. Controls take the form of passport examination, short oral interviews and the use of caches (secure entry stamps on passports). The machine readable zone (MRZ) of all passports is swiped into the Computerized Passenger Clearance System. This system maintains an entry/exit record for all persons travelling through Sri Lanka ports of entry. The system has the capacity to flag persons or passports of concern.
[6] Sri Lanka: Security controls at the international airport and ports (justice.gov)
As the applicant was able to depart and return on 2 separate occasions and nothing happened to him on his return, I am satisfied the applicant obtained legally a passport issued in his own name using the services of a passport and/or visa agent, I do not accept that any bribes were paid. As the passport was in his own name and the applicant was not of adverse interest to the Sri Lankan authorities, I find that the applicant was able to leave Sri Lanka via the international airport legally. I also accept the independent information that the Sri Lankan system has the capacity to flag persons of concern. I am satisfied that the applicant did not have a subjective fear of harm on his return, from either [Country 1] or India. The applicant then left Sri Lanka with a passport issued in his own name travelling to [Country 2]. I am satisfied he left legally.
These factors indicated the applicant was not on any watch list or adversely know to the authorities.
Having considered the applicant’s claims regarding his circumstances in Sri Lanka prior to his departure, singularly and cumulatively, I do not accept that the applicant left Sri Lanka fearing serious harm in 2009.
I am required to consider whether the applicant will suffer serious harm on his return to Sri Lanka within a reasonably foreseeable future.
I accept that the applicant was the subject of an adverse ASIO assessment in 2011 and ASIO subsequently issued a non-prejudicial assessment some 3 years later in 2014. A document in the Department file suggests that ASIO assessed he was involved in a violent conflict against the Sri Lankan Army in 2009. The applicant’s evidence at all times was that he was in [Country 2] in 2009. His name was also included in a data breach and the fact that he was in detention. He had been held for a long period of time in a detention facility as a security risk by the Australian authorities.
I accept that however ASIO came to make its assessment, that assessment was wrong. I have no evidence before me to suggest that ASIO or any other authority corrected the information that was received about the applicant. I accept therefore that if returned to Sri Lanka, there is a chance that the applicant is viewed as a Tamil activist or sympathiser because he was classified as a security risk to Australia such for a long period.
Whilst I am not satisfied the applicant has been truthful in regard to some of his evidence to the Tribunal, there is a chance that he is viewed as a Tamil activist, therefore I must assess whether that chance is real and not remote.
There are no reports available regarding the treatment of returnees who had adverse ASIO security assessments on their return and whilst I do not accept the applicant’s claim that the Sri Lankan authorities are aware of the ASIO assessment due to data breach, I cannot be certain that the adverse ASIO breach has not come to the attention of the Sri Lankan authorities via some other means. I note that the Sri Lankan High Commissioner made remarks on a Lateline program, wherein he stated that Australia and Sri Lanka exchange security information. I am therefore satisfied that there is a chance that the applicant will experience police monitoring and harassment. Even lower -profile individuals are monitored to guard against the LTTE’s re-emergence. I cannot discount that the risk is real.
The applicant has been active in Australia, he posts on a [social media] page and attends functions in Australia. I have considered the recent Upper Tribunal (Immigration and Asylum Chamber) case of KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 00130 (IAC). It was stated that:
The Sri Lankan authorities’ approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE during the civil war[7].
Both within Sri Lanka and further afield, intelligence gathering is now at the heart of security policy and posture. The primary aim is, without doubt, to identify and thwart any attempt by the LTTE to rebuild its capacity for armed insurgency within Sri Lanka. Thus far, it seems, it has succeeded. However, any attempt to rebuild the LTTE and the networks necessary to support an insurgency revival will require the support of the diaspora. As such, GoSL remains extremely focused on diaspora activities and will likely remain so in the future[8].”
Tamil returnees who have been “active in the diaspora” would be high, if not top, of the “list”, and if on the government’s radar, would be detained and at risk of ill-treatment. Such detention would be permitted by the PTA, and its wide-ranging powers would be used to cover “[a]nybody whom the authorities believe might be returning to assist the revival of the LTTE…[9]”.
Any relevant information gathered through intelligence-gathering is likely to be fed into the electronic database and then processed “according to the specifics of actual adverse interest[10].”
Dr Smith’s security source informed him that the database of information on individuals remains robust. The information contained on the electronic database remains in place for life [11].
… GoSL has built a “powerful” intelligence capability to monitor threats. There is capability to monitor a variety of forms of communication, both online and offline. It is said that the technology includes facial recognition capability. Sources are recruited through overseas missions in order to gather intelligence. Interviews of failed asylum-seekers are conducted at the SLHC prior to return. The intelligence gathered is “verified and validated and integrated with other related information…” All details are then sent back to Sri Lanka. Those who work against the territorial integrity of Sri Lanka are investigated and, “depending on their disposition” they would be prosecuted if uncooperative, or recruited as informers if cooperative[12].
[7] Paragraph 17(8)
[8] Paragraph 38
[9] Paragraph 39
[10] Paragraph 44
[11] Paragraph 51
[12] Paragraph 120
I accept that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members, supporters and other separatists, including ‘stop’ and ‘watch’ electronic databases and maintain intelligence on activists in the diaspora. The UK Home Office reports that since 2009, the Sri Lankan government’s security policy has become increasingly sophisticated and is based on intelligence and the comprehensive surveillance of its Tamil citizens, as well as the monitoring of the Tamil diaspora. I accept there is a chance that the applicant might be seen as a current believer in Tamil separatism in light of his activity in Australia and his long period in detention. There is a real chance that information about him has been collected in light of the adverse security assessment by ASIO.
I cannot discount that the applicant will experience police monitoring and harassment. I cannot discount that he may face ongoing challenges reintegrating fully into society. This might add to his vulnerability.
Considered cumulatively, I cannot discount that the applicant will be imputed with a political opinion adverse to the Sri Lankan authorities or supportive of the LTTE . The applicant’s mental health has deteriorated over the years in Australia, and I conclude that his ability to cope with future harm would exacerbate his risk.
As I cannot discount that the applicant will be seriously harmed for his imputed political opinion, I give him the benefit of the doubt and I find that there is a real chance that the applicant will face serious harm for a refugee reason and the harm feared amounts to serious harm as contemplated by s.5J(5) of the Act.
I am satisfied the applicant meets s.5J(4)(a).
I accept that the harassment and discrimination the applicant will face is systematic and discriminatory. I find that the conduct to which the applicant will be subjected is essentially and significantly on account of his political opinion or imputed political opinion.
I am satisfied that s.5J(4)(a) and s.5J(4)(c) is met. Therefore, s.5J(4) of the Act is met.
After assessing all the evidence, I am satisfied that the applicant has a real chance of persecution. I find that the real chance of persecution relates to all areas of Sri Lanka.
Section 5J(2) of the Act provides that a person does not have a well-founded fear of persecution if effective protection measures are available to them.
As the perpetrators of the harm feared by the applicant are the Sri Lankan authorities, I find that state protection will not be available to the applicant and that the real chance of persecution relates to all areas of Sri Lanka.
Therefore, I find that effective protection measures as defined in s.5LA of the Act are not available to the applicant in Sri Lanka: s.5J(2). Based on all the evidence above, I find that the applicant has a well-founded fear of persecution as defined in s.5J of the Act.
Therefore, the applicant satisfies the meaning of 'refugee' set out in s.5H of the Act.
CONCLUSIONS
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Lilly Mojsin
MemberSee Annexure A
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
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.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Natural Justice
-
Jurisdiction
-
Statutory Construction
-
Remedies
0
0
0