1822602 (Refugee)

[2023] AATA 4614

1822602 (Refugee) [2023] AATA 4614 (22 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1822602

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Lilly Mojsin

DATE:22 November 2023

PLACE OF DECISION:  Sydney

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

Statement made on 22 November 2023 at 10:17am

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – failure to attend scheduled hearing – Tamil Karaiyar caste ethnicity – extortion by CID officer – imputed anti-government and pro-LTTE political opinion – failed returned asylum seeker – village never under LTTE control – illegal departure from Sri Lanka – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 46A, 46B, 65, 426A, 441A
Migration Regulations 1994 (Cth), Schedule 2, cl 866.222

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 Home Affairs on 30 July 2018 to refuse to grant the applicant a protection visa [PV] 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 18 April 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant would suffer serious or significant harm on his return to Sri Lanka.

3. The applicant appealed that decision to this Tribunal, attaching a copy of the Department decision to his review application.

4. On 19 October 2023 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 17 November 2023 at 9.30am.

5. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the application for review, without further notice. The Tribunal also sent him SMS reminders about the hearing on 10 November 2023 and 16 November 2023.

6. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. The applicant did not contact the Tribunal.

7. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 441A(5) and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   CRITERIA FOR A PROTECTION VISA

8. See Annexure A

   Mandatory considerations

9. 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

10. [In] May 2012, the applicant arrived in Australia unlawfully as a passenger on the '[named]' vessel. On the day of his arrival the applicant underwent a biodata interview. The applicant stated that he was seeking Australia’s protection because he had been persecuted in Sri Lanka because he was a Tamil.

11. On 7 July 2012, the applicant attended an entry interview with an officer of the Department of Immigration and Citizenship (DIAC)[1].  The applicant claimed that he left Sri Lanka and travelled to the United Kingdom (UK) in 2001 because he was scared of the war. As a Tamil he was frightened of being rounded up, taken and killed because anyone suspected of being in the Liberation Tigers of Tamil Eelam (LTTE) was in danger. All Tamils were suspected of being in the LTTE at that time. In 2008 he returned from London to Sri Lanka because he did not have a valid visa in the UK.  One month after returning, an officer from the Criminal Investigation Division (CID) demanded money from him, and forcing him to buy him liquor or petrol for his motorbike. This would happen whenever the officer would see him. He feared that if he refused to pay, this officer could organise to have him taken away and have 'anything' done to him so he organised to leave Sri Lanka and come to Australia in 2012.

    [1] [Department file number]

12. On 22 September 2012, the applicant lodged an application for a Protection (Class XA) visa[2].

    [2] [Department file number]

13. Statutory declaration of applicant, dated 22 September 2012, stated:

    ·I am a Hindu Tamil. I come from a poor family of fisherman and was brought up without attending school. I am illiterate.

    ·In or around 1995, civil war raged through Sri Lanka in the form of the Liberation Tamil Tigers of Eelam ('LTTE') against the Sri Lankan Army ('SLA'). During this time, the atrocities against the Tamil people by the Sri Lankan government forces are well documented. Tamils were arrested, tortured, kidnapped and murdered.

    ·In or around February 2002, the Sri Lankan Government and the LTTE began peace talks and signed a Norwegian mediated ceasefire.

    ·Notwithstanding the above, discrimination against the Tamil people still occurred. Every day I feared for my life in Sri Lanka. I was required to pay 'support money' to the LTTE and feared forced recruitment. At the same time, I feared being persecuted by the SLA. One day in [Village 1], my village was surrounded by the SLA. They abused and questioned every inhabitant and our involvement with the LTTE. The SLA harassed us and beat us. I was frightened that I would be killed. Even though there was a ceasefire, the discrimination and abuse from the Singhalese police and/or the authorities did not cease.

    ·After consulting my family, I decided that the best option would be for me to try and seek asylum overseas. In or around November 2002, with the assistance of a people smuggler, I boarded a boat from the shore not far from Colombo.

    ·On or around December 2002, I arrived in [Country 1] where I was detained by the [Country 1] authorities. Shortly thereafter I was released into the community on a temporary visa. Rather than remain in [Country 1], with the assistance of a people smuggler I travelled to a border town in [Country 2]. In [Country 2] I was caught twice by the authorities, who provided me with temporary three day visas. Approximately one week later, with the assistance of a people smuggler, I travelled to the United Kingdom (UK) by boat in a shipping container.

    ·After I arrived in the UK I contacted a Tamil solicitor who lodged my PV application, Subsequently, I was granted a temporary visa. Unfortunately, my PV application was refused. For the next few months, I was able to remain in the UK on a temporary visa. This required that I regularly attend the UK Immigration Services office and check in. After approximately 6 months, I became fearful that the UK authorities would deport me. Subsequently, I became illegal and commenced working on a friend’s work permit named [Mr A].

    ·In or around 2008, the Sri Lankan government officially pulled out of peace talks with the Tamil Tigers. It had been approximately 6 years since I had last seen my family. I had two daughters. As I did not consider that it was possible for me to obtain a visa in the UK, I decided to return to Sri Lanka to be with, and care for my family. With the assistance of the International Office of Migration (IOM), I made arrangements and returned to Sri Lanka.

    ·Initially when I arrived in Sri Lanka, the IOM ensured that I was not detained by the Sri Lankan authorities. They promised to return me to my home in [Village 1], Puttalam District, North Western Province, Sri Lanka, without interrogation by the Sri Lankan authorities. However, shortly after my arrival in Sri Lanka (and after the departure of the IOM), my problems with the Sri Lankan authorities began.

    ·Initially after arriving in Sri Lanka, I was happy to once again be with my family. I was able to recommence employment with a Tamil fisherman named [Mr B]. He had equipment and because he knew me as a child, he was willing to allow me to work. However, approximately one month after my arrival in Sri Lanka, a man in civilian clothes arrived at my home. He showed me an ID card which showed he was from the CID. He also provided me with a slip which said that I was to go to the [named] Police station the following day.

    ·According to the CID officer's instructions, the following day I went to the [named] Police station. When I was there, he began interrogating me. He asked me about my passport details. He asked me where I had travelled and how I had travelled. He asked about whom I had contacted and why I had travelled. I responded with the truth. I told him I feared persecution from the Singhalese. This angered him. He told me that I was a LTTE supporter. He then took me upstairs to the top floor of the [named] Police Station. He said that he was going to convict me of being an LTTE supporter. He said if I paid him a bribe of 100,000 Sri Lankan Rupees, I would be released. I was scared and agreed to pay him the amount. We arranged that I would meet the CID officer the following day at the front of a local [shop].

    ·The following day, I went to the local [shop] and paid the 100,000 Rupees to the CID officer. After he took my money, he said I should never tell anyone. He said if I ever made the complaint, he would arrest me for being a former LTTE member.

    ·This type of extortion occurred regularly. Whenever he saw me, the CID officer would obtain some kind of payment from me. If I was fishing he would take some of my catch. If I saw him driving he would force me to fill up his motor bike with petrol. If I was at a store he would force me to purchase him liquor. When there were no items he wanted from me, he would force me to give him money - between 500 to 1000 Rupees.

    ·The extortion from the CID officer continued on through early 2012. By this time, the payment of extortion became too much for me. I was earning approximately 20,000 rupee I month as a fisherman. The CID officer would see me approximately twice a week. This would equate to almost half my income. I could no longer afford to pay the extortion rates. I had to feed my wife and two children. I had to pay for my children's education. I had to pay for my family's health expenses. Over the years, I had been spending my savings to pay the extortion amounts.

    ·These extortion amounts were in addition to the general discrimination I received from the Singhalese in the area. Overnight, Singhalese fisherman would damage our property. They would abuse us during the day and steal our fish. They would encroach on our fishing areas and if we said anything they would beat us.

    ·In or around early 2012, I asked the CID officer if I could pay lesser amounts for extortion. The CID officer became enraged. He said I was a Tamil and should be grateful that he had kept the documents on my file secret. He said if I was ever to ask this question again, he would alert the do authorities immediately. I became extremely afraid, but knew I could not continue to make payments to the CID officer and raise my family.

    • I realised I could not simply escape the CID officer by relocating to other areas of Sri Lanka. I am an old man without any education. I am illiterate. I have no skills except for fishing. I do not own my own fishing equipment. Since my arrival in Sri Lanka, [Mr B] provided me with employment because of my past relationship with him. I do not think I would be able to obtain employment elsewhere without my connection. I also fear that the CID officer will not allow me to relocate. As soon as I miss a bribe payment, he will lodge a case and implicate that I am a former LTTE supporter. The CID will be able to find me anywhere in Sri Lanka. As a Tamil, if I was to leave [Village 1] and relocate to another area, I would have to obtain a release form from the village registrar. When I relocate to another are of Sri Lanka, I will have to once again register my movement. Subsequently, the CID would have records of my movement. Without registration my family and I will be prevented from access to basic essentials such as education and health care. Regardless, Sri Lanka is a relatively small island. If the CID were notified that I was a former LTTE supporter, they would be able to find me. Subsequently, I do not consider that it is reasonable for me to relocate. I had no choice but to flee the country and hope that the CID officer would leave my family alone.

    ·On or around April 2012, having decided I could no longer remain in Sri Lanka, I contacted a people smuggler and made arrangements for my departure.

    ·On around [May] 2012, with the assistance of a people smuggler, I travelled to [location], Trincomalee, Eastern Province, Sri Lanka and departed for Australia.

    ·On or around June 2012, my wife told me that the CID officer had come to my home in [Village 1]. She told me that he demanded I see him immediately. She told him that she had not seen me for a month and thought I was missing. The CID officer went into a state of rage. He pushed my wife and took various items from my house, including her jewellery. He said words to the effect of: "if that Tamil ever returns, I will have the pleasure of reminding him what the CID is capable of!"

    ·I am extremely worried about the wellbeing of my family. Further, I believe that now the CID now have official records and are looking for me.

    ·I fear I will be detained, interrogated, tortured, abused and I or killed.

    ·I fear I will be harmed I mistreated by the Sri Lankan authorities, including the SLA, the Sri Lankan Police, the CID and other paramilitary groups.

    ·I fear I will be harmed I mistreated for my race: I am Tamil.

    ·I fear I will be harmedImistreated for reasons of my membership of a particular social group: failed Tamil asylum seekers. I have already fled Sri Lanka once. The CID and associated groups are already looking for me. If I return I will be treated as a member of the LTTE and detained and interrogated. This is emphasised since this is my second escape from Sri Lanka.

    ·I fear that if I return to Sri Lanka, I will be harmed for my imputed political opinion. Because of my interaction with the ClD officer, I am imputed as being a former LTTE supporter.

    ·I also fear significant harm in that if I return to Sri Lanka I will be harassed and detained by the Sri Lankan authorities and I or the ClD officer in that I will be:

    oarbitrarily deprived of my life;

    osubjected to torture;

    osubjected to cruel or inhuman treatment or punishment; or

    osubjected to degrading treatment or punishment

    ·I fear the authorities - they will not protect me.

14. On 7 January 2013, the delegate accepted the applicant, as a returnee from overseas, faced extortion attempts from a Sinhalese CID officer, however, was of the view that his claims were personal and/or criminal in nature only and not convention related.

15. On 20 June 2013, the RRT[3], differently constituted, found that the applicant will come to the attention of the CID at the airport on return to Sri Lankan and that as a result of their routine enquiries of the police in [Village 1] they [the Sri Lankan authorities] may become aware of the untrue assertions on CID records there about him. These will lead to suspicions of his past links with the LTTE. The applicant would be extraordinarily vulnerable under these circumstances and would have no access to state protection. The RRT remitted the applicant's matter to DIAC for reconsideration with the direction that he satisfied s36(2)(a) of the Act.

    [3] RRT 1301379

16. On 14 December 2013, a new regulation, the Migration Regulation (Unauthorised Maritime Arrival Regulation 2013 (Cth), amended Schedule 2 of the Migration Regulations 1994 (the Regulations) by inserting a new time of decision criterion for Protection (Class XA) (subclass 866) visas. This criterion included subclause 866.222, which required that, in order to be granted a Protection (Class XA) (subclass 866) visa, an applicant must have been immigration cleared when they last entered Australia and must not have been an unauthorised maritime arrival.

17. On 7 February 2014 the applicant's Protection (Class XA) visa application was refused by a delegate.

18. On 13 July 2016, the Minister exercised his power under s46A(2) and s48B of the Act to lift the s46A(a) and s48A bars (which had been preventing him from lodging a valid Protection visa application) to allow him to make a valid application for a TPV (subclass 785) or Safe Haven Enterprise (subclass 760) visa (SHEV) application.

19. On 17 June 2016, the applicant was granted a Humanitarian Stay (Temporary) (UJ 449) visa.

20. On 18 April 2017,  the applicant applied for this visa and included the statutory declaration, dated 22 September 2012, provided with his Protection (Class XA) visa application.

a.    I was born in [Village 1], [Town 1] in the Northwest Province in Sri Lanka. I am of Tamil ethnicity and my religion is Hinduism. I am Karaiyar caste which is a fishing caste, mainly responsible for the leadership of Tamil revolt.

b.    I respectfully request the Australian government to grant me protection from the harm that I fear in Sri Lanka. My main reason for seeking the protection of Australia is fear of harm at the hands of the Sri Lankan authorities including the Criminal Intelligence Department, the army, navy and police on the basis of being a member of the Tamil Karaiyar caste, being accused of being a member of the Liberation Tamil Tigers of Eelam (the LTTE) and being a person who has previously fled the country.

·     I was interviewed by a Department of Immigration officer at [location] soon after I first entered Australia in June/July 2012. I was asked to give a brief description of my claims, so I did not give full details of my claims at that time. The Department did not explain to me what was relevant and what I needed to tell them.

·     I made an earlier Statutory Declaration signed on 22 September 2012 in respect of my previous application for a Protection Visa which was prepared by lawyers under the IAAAS. If this application is inconsistent with my past application or previous interviews with the Department this may be due to issues with interpretation or the limited time I was given during interviews or the limited ability I have had to access documents in relation to previous applications. I have attempted to address any inconsistencies below. I request that if any adverse information is held by the Department of Immigration that I be provided with a copy of that information and be given the opportunity to respond in writing.

·     Note in my statutory declaration it is claimed that I left Sri Lanka in November 2002. However, from what I can remember I left Sri Lanka in late 2001. I then left [Country 3] in 2008 and went back to Sri Lanka. Any inconsistency is due to my misunderstanding of translation and the interpreter.

·     This statement and the accompanying visa application form have been prepared with the assistance of volunteers at [Organisation 1], a community legal centre with a volunteer interpreter assisting me. If there are errors in translation or missing information this is a result of the lack of resources and adequate legal assistance available to me and other asylum seekers who are applying for protection visas.

·     I gave an account of my journey from Sri Lanka to Australia during my entry interview. If there are factual errors or the Department requires more information about my travel to Australia than what I initially provided then this can be addressed at the time of my interview with the Department.

·     I have provided a true and accurate account of my identity.

·     I confirm that my date of birth, as stated in my National ID Card is [date]. The reason for any previous inconsistencies is merely misunderstanding and interpretation issues.

·     When I lived in Sri Lanka I had the following identity documents:

o   National ID Card;

o   Birth Certificate; and

o   Marriage Certificate.

·     When I left Sri Lanka I took my National ID Card.

·     After I arrived in Australia I obtained copies of my birth certificate and marriage certificate, by email from my wife, who still resides in Sri Lanka.

·     I no longer get access to the originals of my birth and marriage certificates because there is no mail support at home (my wife is illiterate). Further, my wife is fearful that the Sri Lankan authorities would find out that she was helping me and therefore target her. I cannot put my wife at risk by attempting to obtain these documents.

·     I am including the following identity documents with my application:

o   National ID Card (original);

o   Birth Certificate (copy); and

o   Marriage Certificate (copy).

·     To the best of my knowledge, all the documents I have provided to the Department are genuine copies of original documents that were not fraudulently issued or obtained. However, I am not able to positively affirm that this is the case as the documents have not been in my possession at all times and/or were obtained by others and sent to me.

·     I was born in [Village 1], [Town 1], in the North Western Province, in Sri Lanka.

·     I come from a poor family of fishermen and was brought up without attending school. I am illiterate. I have been married to [my wife] since 1991. [My wife] and I have two daughters together [who] were born in [years]. My wife and children live back home in [Village 1].

·     As noted earlier, I have made a previous statutory declaration on 22 September 2012 which I confirm is true and accurate of my experiences in Sri Lanka up until the point at which I left for Australia seeking asylum. I attach that statutory declaration to this application and rely upon it in support of this application.

·     In addition to the statutory declaration attached, I consider it important to state that I am a member of the Tamil Karaiyar caste. The Tamil Karaiyar caste is a fishing caste typically associated with being part of the LTTE. The Tamil Karaiyar caste is located in the coastal regions of Sri Lanka. The Tamil Karaiyar caste is suspect of transporting arms to the LTTE and in response to this the government established army camps in the [Village 1] village to persecute people suspect of being part of the LTTE. Further, as I am a seasonal fisherman I have to relocate across to Eastern Sri Lanka which includes Maithripala, which is also associated with the Tamil revolt.

·     The discrimination and abuse against the Tamil people is still occurring by the Sri Lankan authorities. I am in contact with my wife every week and she has told me not to return to Sri Lanka because it is dangerous due to the army presence in the Tamil areas, including my village and people there suspected of being Tamil have been captured and disappeared.

·     There is still a heavy army presence in all Tamil areas which includes [Village 1]. While my family has not been directly targeted since 2012, this is because the authorities know that I am no longer in the country. If I return the CID will especially target me as I had fled the country previously, I am a member of the Tamil Karaiyar caste and have been accused of being a member of the LTTE.

·     I am unable to rely on the Sri Lankan government for protection from the Sri Lanka authorities, including the Criminal Intelligence Department, the army, navy and police.

·     I have never sought the protection of the Sri Lanka government as they are my persecutors.

·     If I return to Sri Lanka I have a fear the Sri Lankan authorities will arrest me, torture me while in custody or kill me.

·     I am especially at risk of harm because I am previously stated I am a Tamil Karaiyar caste, I have been accused of being part of the LTTE and have previously fled the country.

·     I am unable to relocate to another area of Sri Lanka because my risk of harm extends throughout the whole country. There is no place in the country I could go where it would not be discovered I am a Tamil, as you have register where you live and report to the authorities. Also I only speak Tamil and the main language is Sinhalese.

·     In summary, I fear harm throughout the whole of Sri Lanka including being arrested tortured and killed at the hands of the Sri Lankan authorities including the Criminal Intelligence Department, the army, navy and police on the basis of being a member of the Tamil Karaiyar caste, being accused of being a member of the LTTE and being a person who has previously fled the country. I have personally been threatened, beaten, robbed and detained by my feared persecutors. I cannot rely on the protection of the Sri Lankan state and cannot safely relocate anywhere else in Sri Lanka.

1. On 21 June 2018, the applicant attended a Department  interview. He reiterated his claims.  

   Country Information

2. 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.

3. 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].

4. 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.

5. 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.

6. In 2022[4], the country caved into a severe economic crisis and as a 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]

7. According to UK Home Office Report on Sri Lanka[5], published 20 January 2020, after a fact-finding mission to Sri Lanka conducted between 28 September and 5 October 2019

   When the war finished those connected to the LTTE were arrested, sent to court and ordered to go through a rehabilitation process. Some younger former cadres were given the opportunity to complete their education at school and university, some have been employed by the security forces or civil defence force with some given government employment as bus drivers and conductors. One source noted that some former cadres have gone into politics.

   Several sources stated that ex-cadres fear they are being monitoring by the military and intelligence. One source noted that some individuals are more likely to be monitored such as those with criminal connections.

   Representatives from the Human Rights Commission noted that prominent LTTE sympathisers who actively support the LTTE or raised funds for them in the past may be monitored or questioned although interest in them may depend on their past involvement and any current involvement with diaspora groups.

   A human rights activist told the FFT that there is still interest from the security forces to look for former members of the LTTE. He stated that some activists have been summoned to the Terrorism Investigation Department (TID) and this includes former cadres who do not have an activist profile.

   The representative from the northern province community told the FFT that after 2015 there continued to be some surveillance and house visits by the intelligence service on former LTTE cadres. 

   [5]

8. DFAT  December 2021 Country Report Sri Lanka further states:

   5.21 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  . 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.

   ………….  

   5.26 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.

   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.

   5.31 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.

9. In regard to political parties DFAT states:

   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.

10. Tamil Guardian Report[6] of 5 April 2023 refers to Human Rights Watch Report

    The United Nations expert body responsible for reviewing compliance with civil and political rights obligations has issued a scathing appraisal of the Sri Lankan government’s record.

    The Human Rights Committee monitors implementation of the International Covenant on Civil and Political Rights (ICCPR), a multilateral treaty that Sri Lanka ratified in 2005. Its latest report covers systematic abuses over several years, and arrives at a time the country is grappling with multiple crises across the economy, governance, and fundamental human rights protections.

    The committee describes “severe restrictions on freedom of opinion and expression,” including the excessive use of force by police in dispersing peaceful assemblies, unjustified application of counterterrorism legislation against protesters, and the blocking of public access to social media platforms during mass demonstrations against government policies.

    The committee was also “deeply concerned about the extreme delay in bringing to justice perpetrators of past human rights violations that occurred during the conflict”

    Allegations of systematic torture and sexual violence by government authorities against ethnic Tamil detainees remain unaddressed, politicians and security forces have interfered in judicial processes, and investigations of emblematic human rights cases have been blocked. The committee notes that military personnel implicated in war crimes have received promotions, while victims of abuses have faced threats. There has been no progress made in establishing the fate of numerous victims of enforced disappearance.

    [6] UN Paints Bleak Picture of Rights in Sri Lanka - HRW | Tamil Guardian,

    REASONS AND FINDINGS

11. As a copy of the applicant’s Identity Document and Birth Certificate was provided to the Department, the Department has accepted these documents 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).

12. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

1. There may be errors, omissions or misunderstandings that cannot be automatically attributed to an applicant's credibility or the applicant not being truthful. I am mindful of AAT guidelines on the assessment of credibility. I am also mindful that in the process of asking further questions and commenting on those questions during the process of assessing an applicant's claims may mean that it is feasible an applicant will provide new information when he is asked to respond to or provide more details. I am also mindful that there can be interpreting errors, cultural differences and plausible explanations for inconsistencies other than deliberate falsehoods. I am also mindful that applicants who suffer from nervousness, anxiety, depression and or post-traumatic stress disorder may have difficulty remembering all and recounting aspects of their claims. In particular they may block out or neglect to mention upsetting or traumatic experiences. I am also mindful that just because one part of an applicant's claim is exaggerated does not mean that the entirety of the claim is dishonest.

2. I have considered the DFAT report on Sri Lanka dated 23 December 2021. The information in this report is consistent with that contained in the 4 November 2019 and 23 May 2018 reports and in respect of matters relevant to this application.

3. I accept that the applicant, a Hindu Karaiyar caste Tamil from [Village 1], was born [date]. He is married and has 2 children. His wife and children live in [Village 1], North Western Province, Sri Lanka. I accept that prior to his departure from Sri Lanka in 2001/2 he was rounded up, detained, questioned and suspected of being Liberation Tigers of Tamil Eelam [LTTE].  I accept that he suffered serious harm, at that time.  

4. I accept that he left Sri Lanka and travelled to [Country 3] via Europe because he was scared of the war, as a Tamil and of being rounded up, taken and killed because anyone suspected of being in the LTTE was in danger. I accept that he returned to Sri Lanka with the assistance of the IOM in 2008, which was prior to the war ending in May 2009 and again worked as a fisherman.

5. Whilst I accept that the applicant came from a poor fishing family, in light of his ability to utilise and locate people smugglers to travel to Europe, [Country 3] and Australia  and remain in those countries where he was able to work, without further information from the applicant, I am unable to accept that he is illiterate and continues to be illiterate, especially as he has signed applications made to the Department. Further he has withdrawn his representation at the Tribunal and provided his own email address for direct contact with the Tribunal. 

6. The applicant claims that Karaiyar caste Tamils were suspected of transporting arms to the LTTE and the government established army camps in [Village 1] village to persecute people suspect of being part of the LTTE or that army camps were established in [Village 1] village to persecute people suspected of being part of the LTTE. I have found no independent information to suggest that Karaiyar caste Tamils were suspected of transporting arms for the LTTE or that army camps were established in [Village 1] village to persecute people suspected of being part of the LTTE. I am of the view were it the situation it would be known to independent sources, such as DFAT,UK Home Office and US State Department reports.

7. The applicant returned from [Country 3] in 2008. Whilst I accept that the applicant was a Karaiyar caste Tamil and I accept that during the war the government and CID suspected all Tamils of being members and/or supporters or imputed supporters of LTTE, and I accept that LTTE members living in the diaspora in the UK were extorted to pay small monthly payments and the applicant did so while he was living in London between 2002 and 2008, the applicant  makes no claims of suffering any harm on his return at the airport, despite having left illegally. This is consistent with information outlined in a 2008 case of  NA. v United Kingdom heard in European Court of Human Rights[7] where the court stated, regarding returning Tamil asylum seekers, that ‘if a person is actively wanted by the police and/or named on a Watched or Wanted list held at Colombo airport, they may be at risk of detention at the airport.  Otherwise, the majority of returning failed asylum seekers are processed relatively quickly and with no difficulty beyond some possible harassment’.

   [7] NA. v. THE UNITED KINGDOM (coe.int) 

8. Whilst he claims he received IOM assistance, he makes no claims of being imputed to have an adverse government profile or pro-LTTE profile on his return for making payments to the LTTE in the UK or for any other reason other than one CID officer, stationed in [Village 1].

9. The applicant claims that he suffered extortion at the hands of an individual CID officer, in [Village 1], who threatened to arrest him as an LTTE supporter and/or former member. He claims this officer had created an official record on him and that the CID are looking for him.  I accept, as plausible, that the CID had an officer stationed in [Village 1] and that there is a police station in [Village 1]. The independent evidence before me indicates that [Village 1], which is approximately [number] kilometres north of the town of [Town 1] in the North Western Province was never an area of Sri Lanka that was under the territorial control of the LTTE because no part of the Puttalam district was ever under LTTE control[8]. This information does not suggest that the CID would have been focused on locals being LTTE members or supporters, rather it was the North and East where the LTTE had control during the war. As the applicant did not attend the hearing and without further information from the applicant I do not accept that a CID officer extorted money from him and threatened to convict him as an LTTE supporter or that he continuously paid bribes to this man who regularly extorted money and goods from him or that there were untrue assertions on CID records about him leading to suspicions of past links with the LTTE or that the CID are looking for him.

   [8] An Institutional History of the Liberation Tigers of Tamil Eelam (LTTE)", Centre on Conflict, Development and Peacebuilding (CCDP) - Graduate Institute of International and Development Studies, Geneva, CCDP Working Papers, 01 November 2014  

10. As I do not accept that the CID officer extorted money or goods from the applicant or that this officer or the CID continue to look for him, I do not accept that in June 2012, after the applicant left Sri Lanka, that a CID officer came to his home and threatened his wife and threatened he would be harmed on his return.

11. I accept that the applicant struggled working as a fisherman in [Village 1] from 2008 to 2012 and he faced discrimination from nearby Sinhalese fishermen, who would routinely damage Tamil fishermen's equipment, abuse them during the day, encroach on their fishing areas, steal their fish, and otherwise abuse them. The applicant does not claim that at that time this discrimination cause him significant economic hardship that threatened his capacity to subsist.

12. Therefore, I am satisfied that in the period of 2008 to 2012 the applicant did not suffer serious harm for reasons of his race, religion, nationality, membership of a particular social group or political opinion.   

13. I am satisfied that the applicant left Sri Lanka without suffering serious harm for a refugee reason, in 2012.

14. In assessing whether the applicant will suffer serious harm, for reasons of his race, religion, nationality, membership of a particular social group or political opinion, on his return to Sri Lanka within a reasonably foreseeable future I have considered the applicants circumstances.

15. DFAT 23 December 2021 country report Sri Lanka states:

    5.28 Refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. 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.

16. The applicant’s family live in the [Village 1] village and the applicant does not claim that his family’s housing was affected during the war or post-war years. In regard to employment, I have found that the applicant, during the civil war and until 2012 was a fisherman, who suffered discrimination from local Singhalese fishermen. I have no independent information before me to suggest that Tamil fishermen continue to suffer discrimination in [Village 1]. I am of the view were it the situation it would be known to independent sources.

17. Whilst the applicant claims that as a fisherman he will have to relocate across to Eastern Sri Lanka including Maithripala, which is also associated with the Tamil revolt,  I am unable to accept that if he were to relocate to Eastern Sri Lanka for fishing that this would impute an adverse pro-LTTE profile to him.  

18. Without further information from the applicant I do not accept that he will have to work as a fisherman on his return because his PV application does not suggest he has been working as a fisherman in Australia. Furthermore, were he to work as a fisherman independent evidence indicates that Sri Lanka[9] is in the process of establishing a specialised investment zone in the Northern province, with a focus on catering to the unique needs of the fishing industry. This was revealed by Fisheries State Minister, under the theme ‘Collective Path to a Stable Country’ and arrangements are underway to establish a dedicated investment zone for the fishing industry in the Northern province.

    [9] Government to set up specialised fishing industry investment zone in Northern province - Breaking News | Daily Mirror

19. The applicant claims that he will be harmed on his return to Sri Lanka because he is a Karaiyar caste Tamil because they are suspected of transporting arms to the LTTE. Independent evidence[10] indicates that the core leadership of the LTTE had Karaiyar origin and although having a significant Karaiyar representation, the LTTE promoted Tamil unity through anti-casteism. It recruited without caste and regional distinctions, and was representative of Tamil society as a whole. I accept that all Tamils during the war years were at risk of being suspected LTTE supporters therefore I do not accept that Karaiyar caste Tamils alone were singled out and suspected of transporting arms to the LTTE. Without further information from the applicant I do not accept there is a real chance the applicant will be imputed an LTTE member or supporter on his return, within a reasonably foreseeable future, because of his Karaiyar caste. As the applicant was not investigated by the authorities or imputed to be LTTE or linked to the LTTE when he returned from the UK until his departure to Australia,  I do not accept that he will be linked to the LTTE on his return for his Tamil ethnicity. 

    [10] Derges, Jane (20 May 2013). Ritual and Recovery in Post-Conflict Sri Lanka. Routledge. p. 76.

20. The applicant claims that as a failed returned asylum seeker from Australia and/or a person who has previously fled the country he will suffer harm. I accept that the applicant left Sri Lanka illegally in 2001/2002 and again in 2012. I accept that the applicant arrived in Australia without a visa by boat, as an illegal maritime arrival.

21. DFAT[11] states 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 and independent sources, cited above, indicate these databases were in existence in 2008. The applicant has never been an LTTE member, supporter or separatist. 

    [11] DFAT Report Sri Lanka 23 December 2021

22. According to the evidence before me, the applicant was not involved in Tamil pro-separatist or anti-government activities in Sri Lanka or Australia or in the UK. The applicant was not an activist during the war or a former LTTE cadre or a fund raiser or a member of the LTTE in the diaspora. I have no independent evidence before me to suggest that returning Hindu Tamils from abroad, who have resided abroad for a prolonged period of time and have claimed asylum and are from the North Western province or anywhere else in Sri Lanka, are perceived to have an adverse profile as members or perceived LTTE members or those who have left Sri Lanka illegally twice. DFAT is not aware of returnees from Australia to Sri Lanka being charged under the Prevention of Terrorism Act. Rather, some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure. I am not satisfied there is real chance that the applicant will suffer serious harm  on his return, within a reasonably foreseeable future, as an ethnic Hindu Karaiyar caste former fisherman, from the north western province or as a failed asylum seeker from the north western province.

23. The independent evidence before me does not suggest that Hindu Tamil males or Karaiyar caste Tamils who are failed asylum seekers are harmed by the Sri Lankan authorities or that an adverse political opinion is imputed to them if they departed illegally and claimed asylum in a western country or if they have claimed asylum twice and returned to Sri Lanka twice.  Therefore without further information from the applicant I do not accept there is a real chance that the applicant will suffer serious harm on his return to Sri Lanka within a reasonably foreseeable future for being a failed asylum seeker twice or that an adverse political opinion will be imputed to him for returning to Sri Lanka twice.

24. I accept that the Sri Lankan army still has a large presence in the north of Sri Lanka. I accept that since 2022[12] the Sri Lankan population of 22 million people is reeling from months of food and fuel shortages and spiralling inflation. The government cut back on expenditures after the country slid into a deep economic crisis last year when its foreign exchange reserves dried up. This economic crisis affects the whole population equally and does not discriminate for reasons of race, religion, nationality, membership of a particular social group or political opinion. It was recently reported in January 2021 that Sri Lanka[13] will drastically slash its military, the Ministry of Defence announced, as the country tries to cut costs in the face of its worst economic crisis in decades. The bankrupt nation will cut the number of army personnel by a third to 135,000 by next year and 100,000 by 2030, the state minister of defence said as the government works to overhaul its finances.

    [12]

    [13] Sri Lanka to slash military by a third to cut costs | Military News | Al Jazeera

25. As for his claims that LTTE members living in the diaspora in the UK extorted small monthly payments from him while he was living in London between 2002 and 2008, without further information from the applicant I do not accept that he will be harmed by the Sri Lankan authorities, on his return from Australia, for making these payments especially as the applicant was not harmed on his return to Sri Lanka in 2008 for these activities.

26. DFAT assesses that surveillance of Tamils in the north and east of Sri Lanka continues, with particular interest paid to people who are involved in politically sensitive issues.[14] Country information indicates that the Sri Lankan authorities collect and maintain intelligence on former LTTE members, supporters and other separatists and the authorities may monitor members of the Tamil diaspora returning to Sri Lanka depending on their risk profile.[15] Country information indicates that the focus of the authorities is very much on people who are associated with politically sensitive issues and who have been politically active in supporting Tamil separatism through activities such as fundraising, leadership roles in diaspora groups and actively advocating for Tamil statehood. The UK Upper Tribunal decision of KK and RS,[16] states that when looking at a person’s involvement in these types of events and whether they could be considered to have undertaken a ‘significant role’, the Sri Lankan authorities are likely to be interested in activities such as attendance at public demonstrations, membership of or particular roles within relevant organisations, meaningful fundraising on behalf of relevant organisations, attendance at commemorative events such as Heroes Day, social media activity, political lobbying and the signing of petitions perceived as being critical of the government. The applicant does not claim to have had any involvement in the Tamil diaspora whilst living in Australia or the UK. According to the evidence before me, the applicant was not involved in Tamil pro-separatist or anti-government activities. I find that the applicants’ activities in Australia and/or the UK would not cause the applicant to be considered a person of interest to the Sri Lankan authorities as a supporter of Tamil separatism if he returned to Sri Lanka in the foreseeable future.

    [14] DFAT Report 2021 3.13

    [15] DFAT Report 2021 3.41, 3.54 – 3.57

    [16] KK and RS (Sur place activities, risk) 2021 UKUT 130, [482] (KK and RS)

27. The applicant does not claim to have been monitored or arrested during the war and after the war from 2008-2012 . I have rejected his claim he had a problem with one CID officer. Whilst he was detained for a short period prior to leaving Sri Lanka in 2001/2, he was not associated with the LTTE during the war years nor did he work with or for the LTTE prior to the end of hostilities. His village was never under LTTE control. He did not demonstrate against the government or the military when he resided in Sri Lanka and he did not take any adverse action against any paramilitary groups that existed at that time. He was not arrested or harmed by the Sri Lankan government when he returned to Sri Lanka in 2008 at the airport for having left Sri Lanka illegally or for any other reason or in the 2008 to 2012 period. Therefore, without further information from the applicant I do not accept there is a real chance the applicant will be imputed as an LTTE member or supporter on his return, within a reasonably foreseeable future. Without further information from the applicant I do not accept that he will treated as a member of the LTTE, detained, interrogated, tortured, abused and killed or that he will be mistreated by the Sri Lankan authorities, including the SLA, the Sri Lankan Police, the CID and other paramilitary groups.

28. I note that DFAT reports that those who were imprisoned for a short time during the war and released are not necessarily now under suspicion. Those released from so-called rehabilitation camps, where they were detained as LTTE suspects at the end of the war, are monitored. The applicant was not detained in camps prior to or after the war. DFAT assesses those most at risk are activists and former or suspected former LTTE members.    DFAT assesses that whilst Tamils might be monitored on their return, those Tamils with former links to the LTTE and are who are not politically active are generally able to lead their lives without concern for security as well as their past association with the LTTE.  The applicant does not have this profile.

29. Due to backlogs and a lack of resources, independent commissions have been slow to investigate allegations of police and military misconduct. A hotline has been opened to deal with complaints about the police[17] misconduct. The Sri Lanka Police has introduced the ‘118’ hotline for the public to lodge complaints against police personnel in case of their misconduct. According to the Police Media Division, if necessary, information can be given anonymously, and the confidentiality of the information obtained from complaints made through the 24-hour hotline will be protected. The hotline was initially introduced by the Ministry of Public Security to allow the public to report various crimes through complaints. Complainants are able to lodge online complaints to Commission to Investigate Allegations of Bribery or Corruption[18]

    [17] Hotline introduced for complaints against Police officers - NewsWire  

    [18] Commission to Investigate Allegations of Bribery or Corruption - CIABOC  Sri Lanka : OIC of Wanathawilluwa police arrested for soliciting a bribe (colombopage.com) A Police Sergeant was Arrested for Bribery (ciaboc.gov.lk)

1. Sri Lanka’s Parliament[19] has approved an anti-corruption bill, aimed at improving governance in the crisis-hit country and meeting requirements linked to a $2.9bn bailout from the International Monetary Fund (IMF). The Anti-Corruption Bill increases the powers and resources allocated to Sri Lanka’s Commission to Investigate Allegations of Bribery or Corruption, which is mandated with carrying out major investigations. It can now conduct joint investigations with local and international counterparts.

   [19] Sri Lanka passes anti-corruption bill as part of IMF bailout plan | Corruption News | Al Jazeera

2. I have considered that the applicant will not return to Sri Lanka voluntarily and that he may be identified as a person who unsuccessfully sought asylum in Australia upon his return to Sri Lanka and would be considered to have committed an offence under the Immigrants and Emigrants Act (1948) (the I&E Act).  I accept that facilitators, organisers and skippers (captains of boats) may be convicted under s.45c of that Act and have in the past received prison sentences of one year. The applicant does not claim to have been a facilitator or skipper. I do not accept that the applicant will be considered a people smuggler or will be linked to the LTTE. 

3. The independent evidence before me does not suggest that Hindu Tamil Karaiyar caste males who are failed asylum seekers are harmed by the Sri Lankan authorities or that an adverse political opinion is imputed to them if they departed illegally and claimed asylum in a western country twice. 

4. The UK Home Office[20] found that the processing of returnees at the airport can take several hours due to the administrative processes, interview lengths and staffing constraints. All returnees are subject to these standard procedures, regardless of ethnicity and religion, and sources state that there is no systematic policy of discrimination towards specific ethnic or religious groups. If the person is found to have links to the LTTE or if wanted for previous crimes committed in Sri Lanka, they may face further questioning by the CID based at the airport. This process can take a long time as checks need to be made with the local police and there is no central police database. Sri Lanka returnees are questioned at the airport and where illegal departure is suspected under the I & E Act police at the airport make an arrest, take photographs and fingerprints, and at the earliest opportunity take the detainee to the closest Magistrate's Court and then responsibility for the detainee is taken over by the courts. Passengers are usually charged and released on bail if they plead not guilty and fined if they plead guilty.

   [20] UK Home Office Report on Sri Lanka , published 20 January 2020, after a fact-finding mission to Sri Lanka conducted between 28 September and 5 October 2019

5. DFAT[21] states that 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. All returnees are subject to these standard procedures, regardless of ethnicity and religion. DFAT understands detainees are not subject to mistreatment during processing at the airport.

   [21] DFAT Country Information Report Sri Lanka November 2019

6. I do not accept that being questioned and detained, appearing in court, being granted bail and returning to court on a number of occasions is serious harm as detailed in s.5J(5).

7. I note that a guilty plea will attract a fine. DFAT states that 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. If the returnee pleads not guilty, he or she is released on their own guarantee or guarantee by a family member. Sometimes a charged person is required to report until finalisation. The Sri Lankan Attorney General's Department has said that no mere passenger has ever been given a custodial sentence, however fines are issued to deter people from leaving illegally. Without further information from the applicant, I do not accept that he would not be able to pay such a fine because the applicant is working in Australia.

8. Generally, the amount of time in detention is very short, that is, up to 24 hours and occasionally up to 2 days. There is no country information before me indicating that detention at the airport or Magistrate's Court would be harmful. I accept that the applicant may be charged with an offence under the I & E Act as the evidence is that he left Sri Lanka in breach of the provisions of the Act. Having regard to the assessment of DFAT[22] I do not accept that there is a real chance that the applicant will be treated differently from anyone else returning to Sri Lanka because he is a Tamil failed asylum seeker or a twice failed Tamil asylum seeker or a Hindu Karaiyar caste Tamil or that there is a real chance that he will be persecuted because of any political opinion imputed to him because he is a failed asylum-seeker, or because he left Sri Lanka illegally.

   [22] DFAT Country Information Report Sri Lanka December 2021

9. I accept that were the applicant to be charged under the I & E Act with offences relating to his illegal departure, I consider that this will simply be the application of a law which applies generally to everyone in Sri Lanka. It is a law of general application and I do not accept on the evidence before me that there is a real chance that the law will be applied to him in a manner which discriminates for reasons of his race, religion, nationality, membership of a particular social group or political opinion. There were no instances of prosecution for departing illegally from Sri Lanka being applied in a discriminatory manner and all returnees to Sri Lanka are subject to standard procedures, regardless of ethnicity and religion. DFAT is not aware of returnees in 2021 being detained for matters other than illegal departure.

10. The applicant does not claim to have any outstanding criminal matters with the police. He has provided a statutory declaration to the Department attesting to his good character. I am satisfied, as stated above, that the applicant did not suffer serious harm in Sri Lanka for a refugee reason.

11. Country information indicates that the Sri Lankan Constitution forbids discrimination on the ground of race, religion, language, caste, political opinion and other grounds. Tamils comprise most of the population in the Northern western province. Many Tamils live in Colombo, looking for economic opportunities. Tamil political parties are active in Sri Lanka.[23]  DFAT assesses that Tamils in Sri Lanka face a low risk of official or societal discrimination based on their ethnicity or caste.[24]  DFAT assesses that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment.[25] While support for the LTTE used to be widely imputed based on ethnicity, this is no longer the case.[26] 

    [23] DFAT Report 3.4

    [24] DFAT Report 3.1-3.3

    [25] DFAT Report 3.13

    [26] DFAT Report 3.8

12. I have considered the applicant’s claims singularly and cumulatively. The applicant is a year-old Tamil Hindu man from the north western province of Sri Lanka. He left Sri Lanka during the war in 2001/2. He returned in 2008. He paid some money to the LTTE when he lived in London. He did not join the LTTE and he was never investigated or imputed to be an LTTE leader, member or supporter. He was not a combatant. He departed Sri Lanka illegally in 2012. He has had no involvement in Tamil community in Australia. He unsuccessfully claimed asylum in the diaspora twice. I have considered his claims on a cumulative basis, I find the applicant would not face a real chance of serious harm arising from these circumstances if he returned to Sri Lanka in the reasonably foreseeable future.

13. Having regard to the independent information before me and to the individual circumstances of the applicant, I am not satisfied that there is a real chance that the applicant faces serious harm on return to Sri Lanka within a reasonably foreseeable future because of his actual or imputed LTTE connections for any reason, including his Tamil Karaiyar caste ethnicity, his imputed anti-government and pro-LTTE political opinion, his illegal departure from Sri Lanka, or for any other reason arising from his background. I am not satisfied, given his particular profile, that there is a real chance that he would be seriously harmed on return to Sri Lanka in the reasonably foreseeable future because of his actual or imputed support for the LTTE.

14. Therefore, I am not satisfied that the applicant has a well-founded fear of serious harm for reasons of his race, religion, nationality, membership of a particular social group or political opinion within a reasonably foreseeable future.

15. I am required to assess if the applicant, on his return to Sri Lanka, will suffer significant harm, as a Tamil Hindu Karaiyar caste male, former fisherman, from the north western province, who paid some monies to the LTTE in London, who illegally left Sri Lanka twice and claimed asylum unsuccessfully in the diaspora twice. In considering whether there is a real risk, I have considered country information set out earlier in this decision.

16. I have considered that the applicant will not return to Sri Lanka voluntarily and that he may be identified as a person who unsuccessfully sought asylum in Australia upon his return to Sri Lanka. I accept he would be considered to have committed an offence under the Immigrants and Emigrants Act (1948) (the I&E Act).  There is no evidence before me that the applicant, if charged under the I & E Act on his return to Sri Lanka, who is a Hindu Karaiyar caste Tamil, former fisherman from the north west, would be arbitrarily deprived of his life, that he would receive the death penalty, that he would be subjected to torture or that he would be subjected to cruel or inhuman or degrading treatment or punishment.

17. I do not accept that questioning at the airport or a short detention in the airport's holding cells or at the Magistrate's Court amounts to significant harm. There is no material before me to suggests the treatment of detainees at the airport through overcrowding or poor conditions is anything other than the result of insufficient resources. I am satisfied that the risk of the applicant being significantly harmed at the airport, when being processed, within a reasonably foreseeable future, if detained on his return, is remote.

18. The country information discussed above indicates that there is no evidence of mistreatment either at the airport or at the court for the very short period in which the applicant might be detained. The country information indicates that only those involved in people smuggling will generally be denied bail and subject to longer prison conditions. The applicant does not claim he was involved in the people smuggling. Furthermore, there is no evidence to suggest that the authorities would intend to cause suffering by virtue of conditions in detention. Therefore, while I accept that prison conditions in Sri Lanka are generally poor and overcrowded, I do not accept that the applicant will be taken into custody, where he might face conduct which could amount to torture, cruel or inhuman or degrading treatment or punishment. I do not accept that the applicant will be tortured or killed on return.

19. DFAT assesses that reintegration issues are not due to the failure to obtain asylum, but rather due to the employment and accommodation difficulties returnees may face. Recent economic and political unrest in Sri Lanka affects all citizens. I have no evidence before me to suggest that failed asylum seekers do not receive access to health care or education.

20. Other than his illegal departure there is no evidence before me that that the applicant has committed any criminal offence in Sri Lanka that would suggest the death penalty would be imposed on him.

21. The Department's Complementary Protection Guidelines state that there must be a real and personal risk to the individual, saying that where the threat is from non-state actors, decision-makers should be satisfied that there are 'extremely widespread conditions of violence, coupled with a particular risk to the individual in question' before reaching a conclusion that there is a real risk that an applicant will be arbitrarily deprived of his or her life. 

22. There is no evidence before me that there is a widespread condition of violence in Sri Lanka and I do not accept that the applicant was threatened or harmed by the SLA or any other group in Sri Lanka, before his departure. Therefore, I find that the risk, of suffering significant harm, from non-state actors or the SLA, within a reasonably foreseeable future is remote.

23. I have found that there is not a real chance that the applicant will be seriously harmed by the enforcement of PTA, therefore, I find remote the risk that the applicant will suffer significant harm by the enforcement of this legislation. 

24. Having considered the applicant's circumstances singularly and on a cumulative basis, and for all the reasons set out above, I am not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk the applicant will be arbitrarily deprived of his life or suffer the death penalty, or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

    CONCLUSIONS

25. 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 s.36(2)(a).

26. 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).

27. 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

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

    Lilly Mojsin
    Member

    
    
    

    ANNEXURE A

29. 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.

30. 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.

31. 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).

32. 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.

33. 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.

    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.

    …