1828645 (Refugee)

[2020] AATA 1897

1828645 (Refugee) [2020] AATA 1897 (12 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1828645

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:James Silva

DATE:12 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 12 March 2020 at 3:48pm

CATCHWORDS

REFUGEE – Protection visa – Sri Lanka – Federal Court remittal – race – Tamil ethnicity – religion – Hindu faith – imputed political opinion – pro-LTTE – failed asylum seeker – illegal departure from Sri Lanka – Tamil returnee – inconsistent information – fear of persecution not well-founded – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 91

Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MIEA (1994) 52 FCR 437

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. The applicant is a man in [age range from northern Sri Lanka. He claims to be a citizen of that country.

2. The applicant claims to have left Sri Lanka in July 2012 by boat, without authorisation. He arrived in Australia [in] August 2012.

3. The applicant applied for a Protection (Class XA) visa on 21 November 2012. On 2 October 2013, a delegate of the Minister for Immigration and Border Protection refused the application pursuant to s.65 of the Migration Act 1958 (the Act).

4. This is an application for review of that decision.

5. The applicant appeared before the Tribunal, differently constituted (the ‘first Tribunal’), on 16 February 2015, to give evidence and present arguments. On 22 April 2015, the Tribunal affirmed the decision not to grant the applicant a Protection visa. The applicant applied for judicial review of the decision. The Federal Circuit Court dismissed the application. On further appeal, [in] September 2018, the Federal Court set the Tribunal decision aside and remitted the matter for reconsideration. The Federal Court found that the Tribunal had erred by failing to take into account relevant material when making adverse credibility findings.

6. This matter is now before the current Tribunal pursuant to the Court’s order. 

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

8. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. The relevant law is in Attachment A.

   CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

   Claims

9. The applicant is a Tamil man from Mullaitivu, in Northern Province, Sri Lanka. He claims to fear that the Sri Lankan authorities, in particular the army and the Criminal Investigations Department (CID) will subject him to persecution or significant harm if he returns to Sri Lanka. He claims to have been questioned and subject to monitoring following the war, including while in an IDP camp. Later, his involvement in a project to build a Hindu temple led the authorities to question, detain and threaten him, on suspicion of being a Liberation Tamil Tigers Eelam (LTTE) cadre and due to his defiance. He left his home village for [City 1], where the authorities again located and threatened him. The applicant fears persecution by the authorities on the grounds of his Tamil ethnicity, his Hindu faith, his imputed political opinion (of being pro-LTTE, and anti-government, and due to his past encounters with the authorities).

10. The applicant also presented claims based on his illegal departure from Sri Lanka and his future status as a failed asylum seeker, which will motivate the authorities to target him on the grounds of his imputed political opinion and his membership of a particular social group (‘persons who have breached Sri Lanka’s departure laws and sought asylum in Australia’).

11. The applicant added that the Sri Lankan authorities will detain, investigate and charge him with offences under migration law, due to his illegal departure. He claimed that he is likely to be detained for some time, during which he will be subject to mistreatment and poor prison conditions that give rise to a real risk of torture, or a real risk of cruel, inhuman and/or degrading treatment, such as to engage Australia’s protection obligations.

    Background

12. The applicant is [an age] year old man from Sri Lanka, a Tamil and Hindu. He was born in [a village in][1], [Mullaitivu][2], in Northern Province. He told the Tribunal that the government established the village [as] part of a ‘colony scheme’. There are both Christian and Hindu families there. Initially, there were about [number of] families, but Hindus settled there in larger numbers over time and now form the majority. The applicant told the Tribunal that the two communities live in harmony. The Christians worship in a church in the centre of the village, and the Hindus in a [temple].

    [1] His pupil’s record sheet records the name [deleted], which appears to be a different, but nearby location.

    [2] The submissions in this matter and the decision of the first Tribunal give the spelling ‘Mullathivu’, which is a different transliteration of the Tamil name.  

13. The applicant lived in the village with his mother and siblings until the end of 2008. From December 2008 to April 2010, he lived in various places. In late 2008, during the final stages of the war, he and his mother moved temporarily to [Village 1][3]. From about April to October 2009, he and his mother were housed in [IDP] camp[4] in [Village 2]. After their release from the IDP camp in late 2009, the applicant and his mother were required to stay in [City 2], where a sister lived, and to be available for further questioning as needed. In April 2010, the Sri Lankan authorities gave permission for the applicant and his mother to return to their home village in Mullaitivu.

    [3] [Details deleted].

    [4] [Details deleted].

14. The applicant attended primary and secondary school, completing his [schooling] in 2000. He discontinued his studies for a few years. In 2002, he went back to school, completing his [a specified grade] in 2004. From 2005 to 2012 (except for the period 2008/2009 when he was displaced and later living in an IDP camp), the applicant was self-employed, [travelling between] Mullaitivu, [Town 2] and [City 1]. He owned a [vehicle], and had about [number of] men working for him. The applicant said that his family sold the [vehicle] after his departure from Sri Lanka.

15. In March 2012, the applicant went to [City 1] to do a [course] in [a] college. He claims to have discontinued the course in June 2012 (due to official harassment), and to have returned to his home village briefly before departing to Australia.

16. The applicant is unmarried. His father left the family in 1990, and has no contact with the family. The applicant’s mother lives in the village. He has [number of] siblings: [one] of whom travelled to Australia with the [applicant]. The applicant and the [brother] who came to Australia are unmarried; the other siblings are married. Two brothers live in Mullaitivu, [both working].

17. The applicant told the Tribunal that he is living with friends in Melbourne, and has no income or other means of support.

18. The applicant has a Sri Lankan passport issued in [2006], which has since expired. He travelled to Australia with his [brother], as well as a brother-in-law. The [brother] is currently in immigration detention. The applicant said that decision-makers had rejected his brother’s claims, but that the Australian authorities had not returned him to Sri Lanka because he faces danger there. He intimated that his brother had presented new claims, and that [an organisation] had intervened on his behalf. Although he had few details, the applicant did not claim that his brother’s circumstances were directly relevant to his own protection claims.

    Evidence

19. The evidence before the Tribunal includes the following relevant material: -

    §Biodata pro forma, completed by hand on 27 July 2012.

    §Notes from the applicant’s Irregular Maritime Arrival Entry Interview on 5 September 2012.

    §The applicant’s protection visa application form completed and signed on 16 November 2012.

    §Statement of claims dated 16 November 2012.

    §Documents relating to the applicant’s identity and nationality (photocopies):

    -Sri Lankan passport, issued [in] 2006 (biodata page only).

    -National ID card, school character reference, pupil record sheet, and letter from sports club.

    -The file contains photographs of other documents, such as a temporary ID card, a bank card and an ATM receipt. These do not self-evidently relate to the applicant, and they do not appear to have any relevance to the substance of the applicant’s claims.

    §Supporting document:

    -A copy of a permission dated [January] 2012, from the [Secretariat]. An informal translation from the applicant’s former representative indicates that, pursuant to a request dated 20 December 2011, permission is granted for the construction of a Hindu temple.

    §A Protection visa interview (‘Department interview’) held on17 July 2013. The Department file includes notes described as a ‘transcript interview’, which the Tribunal has confirmed as generally accurate.

    §Submission dated 26 August 2013 from the applicant’s representative.

    §The protection visa decision record of 2 October 2013.

    To the first Tribunal

    §The application for review, attached to which is a copy of the delegate’s decision record.

    §The applicant appeared before the first Tribunal on 16 February 2015. The current Tribunal has before it the recording of the hearing and the first Tribunal’s decision of 22 April 2015.

    §Post-hearing submission dated 24 February 2015.

    To the current Tribunal

    §The applicant’s statutory declaration of 16 September 2019.

    §Pre-hearing submission of 23 September 2019.

    §Post-hearing submission of 25 October 2019.

20. The applicant appeared before the current Tribunal on 26 September 2019, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Tamil and English languages. The applicant was represented during this review (from 5 August 2019) by Ms [A]; her colleague, Ms [B] appeared at the Tribunal hearing and made written submissions. On 31 January 2020, the Tribunal received notification that Ms [A] no longer acts as representative or authorised recipient in this matter.

21. The applicant attended a second hearing on 11 March 2020. The Tribunal flagged in its invitation that it would provide the applicant an opportunity to comment on recent country information (in particular, DFAT’s November 2019 report on the aftermath of the Easter Sunday terrorist attacks in April 2019, and developments following President Gotabaya Rajapaksa’s assumption of office in November 2019), and to provide any further evidence or arguments. The applicant’s newly appointed representative, Ms [C attended] the hearing and made oral submissions on the applicant’s behalf. Ms [D] attended as an observer.  

22. The Tribunal has before it a large volume of country information, including that referred to in submissions and other material discussed at hearing. It has taken account of the Department of Foreign Affairs and Trade’s (DFAT’s) country information reports, in accordance with Ministerial Direction No. 84. At hearing, it drew on the then-current report dated 23 May 2018 (as well as other material). On 6 November 2019, the Tribunal wrote to the applicant and his representative, drawing to their attention DFAT’s new country information report[5] on Sri Lanka, dated 4 November 2019. The Tribunal noted that the report was broadly consistent with the May 2018 DFAT report, at least on key issues such as the treatment of Tamils, security conditions in the North-East, and the treatment of returnees (including of people who have committed offences under the Immigrants and Emigrants Act). It also noted that the report contains updated and more detailed background information on the security situation generally, particularly following the Easter Sunday terrorist attacks.

    [5] DFAT: Country Information Report – Sri Lanka, 4 November 2019:

23. On 7 November 2019, the representative wrote that at first glance, the DFAT report appeared to support her previous submissions, and ‘may indicate a worsening of the security situation in Sri Lanka for [people like the applicant], particularly in comparison to the 2018 report […]’. It goes on to note that they did ‘not intend to make extensive further submissions, however wish to reserve the right to review and respond properly over the next two weeks’. The Tribunal confirmed that it would not make a decision before 21 November 2019. The Tribunal has not received any further submissions or correspondence.

    Country of reference

24. The applicant claims to be a Sri Lankan national. He has presented a partial photocopy of his (expired) Sri Lankan passport, and a range of other ID documents. He has a thorough knowledge of Sri Lanka, and has family living there. There is nothing to suggest that he has any other nationality. The Tribunal accepts that he is a national of Sri Lanka, which is therefore the country of reference for the purpose of assessing his refugee claims, and the receiving country for the purpose of assessing his eligibility for complementary protection.

    Credibility

25. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

26. The applicant and his representative have, at various times, alluded to several factors that the Tribunal should take into account in assessing his claims. These include:

    §  The applicant’s first statutory declaration includes an introductory paragraph stating: ‘The following is only a summary of my claims for protection. It is not an exhaustive statement […]. I will provide further information in relation to my protection claims during my interview with the DIAC officer.’

    §  In a similar vein, the submission of 23 September 2019 notes that the Entry Interview held on 5 September 2012 lasted only an hour; that it mainly focussed on the applicant’s travel to Australia; and that he was told to keep his answers brief.

    §  The applicant also recorded his concerns about the quality of the assistance that his legal representatives provided at the primary stage and during the first Tribunal’s review. For instance, he voiced dissatisfaction was no ‘detailed statement’ prepared on his behalf. Also, the lawyer did not consult with him prior to the first Tribunal hearing, which resulted in the applicant feeling nervous and underprepared.

27. The submission goes on to state that the applicant has sought to provide, to the current Tribunal, a clearer account of his past experiences and fears. The Tribunal acknowledges the quality of the submissions that it has received. Despite the applicant’s stated concerns about his ability to present his case at the primary stage and to the first Tribunal (for instance, the brevity of interviews, his nervousness and/or the degree of legal support he had), it is nonetheless clear that he gave detailed information about his personal and family circumstances, and his past experiences, much of which he continues to adhere to.

28. The Full Federal Court, in remitting the decision of the first Tribunal, commented on the Tribunal’s treatment of perceived inconsistencies in an applicant’s evidence, and highlighted the need to analyse properly any differences in evidence given over time and in various settings, to assess their relevance, and to consider what weight to give them in evaluating credibility. The submission of 25 October 2019 to the current Tribunal refers to this judgement and the Tribunal’s Guidelines, addressing several issues that arose at hearing under the headings ‘inconsistencies’ and ‘credibility concerns’.

29. The Tribunal notes that the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. In a similar vein are the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. In the credibility assessment below, the Tribunal takes into account the need for caution in dealing with (perceived) internal inconsistencies. It also draws, as appropriate, on other factors such as the context of the applicant’s claimed experiences, consistency with country information, his conduct, and corroborative evidence.

30. The Tribunal found some aspects of the applicant’s evidence to be clear, and other parts amorphous and changeable. He sometimes made straightforward statements, only to later qualify them, to give them a different meaning or emphasis, or to suggest that they were not comprehensive. Sometimes it was difficult to pinpoint whether a particular statement was based on the applicant’s knowledge or supposition; and to obtain a clear sequence of events. The Tribunal appreciates that some of these may be attributable to the applicant’s presentational style; the process of recounting past events over a period of time; the interpretation process; and/or the rendering of his written statements through both an adviser and interpreter/translator. Nonetheless, the Tribunal formed the impression that on some critical issues, the applicant was seeking to revise his evidence to address perceived weaknesses, or misconstruing events to bolster his claims.

    Experiences during the war  

31. The backdrop to the applicant’s claims is Sri Lanka’s civil war, which started with the Liberation Tigers of Tamil Eelam’s (LTTE, Tamil Tigers) armed insurgency in 1983. The LTTE established and maintained de facto control of Tamil-populated areas in the north and east, and engaged in a civil war that ended in May 2009, costing about 100,000 lives and the displacement of more than 900,000 people.[6] Mullaitivu, one of five districts that makes up the Northern Province, was under LTTE control for decades. The mostly-Tamil civilian populations of such areas were required to interact with the LTTE’s military and civil administration as a matter of course. This included the payment of personal income taxes, sales taxes, licence fees and customs duties at the border of LTTE-controlled areas. The LTTE also supported its administration through foreign funding and both voluntary and forced recruitment of Tamils.

    [6] See November 2019 DFAT report, para. 2,2. The May 2018 DFAT report summarises the conflict in similar terms, albeit without statistics.

32. On 18 May 2009, the Government announced its military victory over the LTTE and complete territorial control over Sri Lanka. During the final stages of conflict, the Sri Lankan government set up camps intended specifically to house internally displaced persons (IDPs), who were fleeing the conflict in the north. Camps intended for IDPs were dubbed “welfare centres” by the government, whilst camps and other places of detention intended for holding suspected LTTE members were known as “rehabilitation centres” or “rehabilitation camps”.[7] [8] [9] The International Crisis Group (ICG) reported that over 280,000 Tamil civilians who entered government-controlled areas in the final months of conflict were detained in emergency IDP camps. [10]

    [7] Human Rights Watch 2010, Legal Limbo: The Uncertain Fate of Detained LTTE Suspects in Sri Lanka, February, pp.1-3 < Accessed 12 September 2012

    [8] Freedom from Torture 2011, Out of the Silence: New Evidence of Ongoing Torture in Sri Lanka 2009-2011, 2011, pp.4; 9 Amnesty International 2009, Sri Lanka’s Displaced face uncertain future as government begins to unlock the camps, 11 September; h ttp:// placed-uncertain-future-government-unlock-camps-20090911

    [10] International Crisis Group 2010, War Crimes in Sri Lanka, Asia Report No. 191, 17 May, p.6

1. Hundreds of thousands of people were displaced and tens of thousands of people were killed during the conflict. Most of the LTTE’s military and political leadership were killed during the conflict, particularly during its final months. Many civilians were questioned and later released towards the end of the conflict.

2. The Tribunal accepts that the war had a profound impact on the residents of Mullaitivu and neighbouring districts in the north; that they have lasting mistrust of the Sri Lankan authorities; and that many harbour doubts about their place in that society.

   The applicant’s movements towards the end of the war

3. As noted above (paragraph 13), the Tribunal accepts that the applicant and his mother continued to live in Mullaitivu until April 2009 (the home village and, for several months, [Village 1]). From April 2009, the applicant spent some six months in [IDP] camp [in] [Village 2]. This is consistent with country information.

4. The Tribunal also accepts that the Sri Lankan authorities questioned the applicant and other IDP camp residents. He claims that the authorities wanted to know why he had not accompanied his brothers to [City 3] in late 2008, where they surrendered to the police. In response, the applicant explained that he stayed with his mother, who was in poor health; he denied any involvement with the LTTE. In October or November 2009, the authorities released the applicant and his mother from the camp, on condition that they stay in [City 2] for the time being. In the Tribunal’s view, it is unexceptional that the military authorities quizzed the applicant in the IDP camp about his background, including his and his brothers’ movements, and why he did not follow them to [City 3]. Their subsequent release of the applicant and his mother is a strong indicator that they accepted his account, and had no immediate adverse interest in him. The Tribunal also accepts that the authorities required him to stay in [City 2] for a while, in case they wished to pursue further enquiries.

   Experiences from late 2009

5. The applicant claimed that after his release from the IDP camp, the questioning continued, and the CID and the Army ‘were pursuing [him]’. In order to clarify these broad statements, the Tribunal asked the applicant what interaction he had with the authorities following his release from the IDP camp. He said that on their return to Mullaitivu (hence, after he had been given permission to leave [City 2]), he and other residents found the village in ruins. They received grants [to] rebuild their homes.[11] The applicant also re-established the [business] once they were ‘rehabilitated’.

   [11] The applicant’s interpreted comment referred to ‘rehabilitation’, which is typically used in reference to the centres or camps for suspected LTTE members. It was clear from the context of the applicant’s statements, however, that he meant the civilian recovery effort.

6. He said that the Sri Lankan military authorities occupied land surrounding their village. There were routines checks on the civilian population, but these did not cause any major problems. The applicant confirmed at hearing that his reference to CID or army personnel having held a gun to his head referred to a separate, later incident.

7. The post-hearing submission of 25 October 2019 confirms the applicant’s account that there was a ‘huge army presence’ in the area; that the military watched and questioned all local Tamils, including himself; and that he was not singled out. It observed that Tamils considered this as ‘normal’ in the aftermath of the civil war, but in reality, the applicant ‘was never a free man’.

8. The Tribunal accepts that there remained a heavy military presence in and around Mullaitivu during this period, and that the applicant was subject to routine checks from time to time. Also, the applicant’s resumption of the [business], [travelling] between Mullaitivu, [Town 2] and [City 1], all areas that had been subject to LTTE control, means that he would have interacted with local and military authorities, for instance when renewing his licences and when passing checkpoints. This further suggests that the authorities had no specific concerns about him at that time.

   Hindu temple dispute

   Background

9. The applicant claims that in late 2011/early 2012, Hindus in his village started plans to build a temple. Although Hindus had lived in the village since the 1960s and had grown in number (relative to the Christian population), there was no Hindu temple there. Rather, they had to worship in a neighbouring village.

10. The applicant claims that he was the [Position 1] of [Organisation 1] (variously described as a ‘committee’ or ‘society’), a group of [young] men who took the initiative to build the temple. He told the current Tribunal that all the Hindus in the village elected the committee, which was set up for the purpose of building the temple. He named the former president, and said this person [has a medical condition] [and] remains in the village. The applicant said that there is a newly elected committee, but he does not have contact with them, and he did not appear to have their details.

11. The applicant has consistently claimed to have been ‘[Position 1]’ of the committee, and that he played a pivotal role in the temple project. This was because of his education and skills. The applicant also implied that the president was less influential and/or vulnerable to targeting, perhaps due to his [medical condition] and because he was a married man.

12. The Tribunal discussed several concerns about this claim at hearing. There was little context as to why the Hindu community had not set up a temple from the start, decades earlier, and why it was then up to a group of young men to take charge of the project. The Tribunal noted at hearing that the applicant’s emphasis appears to have shifted over time, from initial mention of a collective effort, to one in which he plays a more central role. And finally, the Tribunal wondered why, given his claimed personal stake in the project, he has not enquired of family and friends still living there about the committee’s current membership and work. While the Tribunal accepts that the applicant was the [Position 1] of [Organisation 1] that helped organise the temple project, the Tribunal has some misgivings that the applicant may have misconstrued events and/or exaggerated his role.

    Approval of the temple building

13. The applicant submitted a letter dated [January] 2012, in which the [Secretariat] granted permission for the construction of a Hindu temple (in response to a request they had received [in] December 2011). The Tribunal accepts that the local authorities had approved the construction of the temple, and that the letter is genuine. The informal translation of the letter[12] indicates that it was addressed to the [Position 1] of the ‘Hindu Centre’, without these persons being named. The Tribunal accepts the letter as genuine. The applicant’s access to it strongly suggests that he was involved, directly or indirectly, in the proposal. The Tribunal accepts that he was the [Position 1] of the committee, and handled the correspondence for the approval.

    [12] Tribunal file1314788, at folio 51.

14. The applicant stated that the temple’s foundation stone was laid; at the Department interview, he gave the date as [date] January 2012, although other submissions pointed to timing in February or March 2012.

    Official objections

15. In his primary application, the applicant wrote that the army ‘started to cause problems for us. They called us in for questioning and asked who gave us permission to build. They said we did not have permission to build and that it was Buddhist land and we could not build a Hindu temple there. They wanted to stop us from practising our religion’. The army informed the CID about the issue, and they started to harass ‘the people involved in the society’. Similarly, the applicant’s description of the subsequent CID interrogation focuses on communal tensions (Buddhist/Sinhalese objections to the construction of a new Hindu temple); and renewed official suspicions that the applicant was linked with the LTTE and Tamil separatism.

16. At the Department interview, and during the course of the Tribunal reviews, the applicant claimed that local Christians had complained about the construction; and that this is what triggered army/CID opposition.

17. The applicant provided further details in the current review, in written submissions and at hearing. He claimed that local Christians had objected to the construction of a temple just [number] meters from their church. He believed that ‘the Christians felt it was necessary to go to the CID and accuse [him] of being a former member LTTE member. That was the only way they could stop [the [Organisation 1] and the construction of the temple]’. Asked at hearing how he came to believe they had instigated army/CID action against him (and others), by making false accusations against him personally, the applicant said that the CID mentioned this during their questioning.

18. The Tribunal accepts on the available material that there had been no Hindu temple in the village up to then. It also accepts that, despite official approval, the construction had the potential to arouse local tensions, based on factors such as communal or ethnic sensitivities, or practical issues such as property use, noise, etc.

19. The applicant claimed that, just before the foundation stone was laid, the army intervened and issued an order not to proceed. Construction proceeded anyway. The army then called a public meeting, at which the applicant and others explained and defended their decision to proceed. As the first Tribunal noted and accepted, and as reiterated in the submissions to the current Tribunal, construction on the temple halted in light of the army objections. The Tribunal accepts these claims.

20. However, the Tribunal has a number of concerns about the applicant’s characterisation of it as an example of communal (and/or ethnic tension), which resulted in false accusations that he was a former LTTE. These concerns are as follows:

    §  The applicant initially claimed that the Sri Lankan authorities were opposed to the construction on ethnic and religious grounds, as they considered that it undermined the rights of Buddhists and Sinhalese. He went on to comment that their goal was to ‘stop us from practicing our religion’. It was only later that his focus shifted to Tamil Christians in the village, who objected to the temple’s proximity to their church and school. While the Tribunal accepts that multiple parties might have different reasons for opposing such a plan, it has some concerns about the shifting focus of these claims.

    §  Second, the applicant said at hearing that his village is completely Tamil, with Hindu and Christian residents living in relative harmony. This does not sit well with his description of Christian Tamils raising potentially serious false charges against him, essentially on religious grounds.

    §  Third, the applicant claimed that the Christian community singled him out for various reasons. He was the one who had arranged for the building permit; he was the [Position 1] and hence spokesperson for the project (including at the community meeting); he had already been detained (in the IDP camp); and that, as an unmarried man, he was more susceptible to charges of being an LTTE cadre (most other members of the committee were married). Furthermore, the president himself was married and also suffered a [a medical condition]. The applicant implied that all of these factors made it easier for the Christians to make such allegations, which in turn made him a person of interest to the army and the CID. The Tribunal accepts that the post-war environment could leave local Tamils in the North open to allegations of past LTTE affiliation, including on spurious grounds. However, it views with scepticism the applicant’s claim that, in addition to his role in the committee, his education, unmarried status and/or post-war detention made him markedly more susceptible to being accused of being an LTTE member.

    §  Fourth, the Tribunal asked whether, if the Christians (or others) had levelled such allegations against the applicant to thwart the construction of the temple, there had been any follow-up with others, including after his departure. The applicant said in reply that he was the central person, and he does not know whether the president of the committee or others faced similar problems. The Tribunal finds it surprising that the applicant, who still has contacts in the village, did not come to know about such incidents, or at least enquire about the committee, the members’ welfare and their activities. In the Tribunal’s view, this suggests that his account of the opposition to the Hindu temple is not reliable.

    §  Finally, the applicant also stated that the temple is now in place, and presented photographs showing a modest temple and persons performing rituals inside. At hearing and in the post-hearing submission, he emphasised that, while the foundation is there, it is a very basic structure without walls and with only a temporary roof. In other words, it is not ‘finished’. Even so, the Tribunal considers the very fact that Hindus have a structure on that land and use it for religious ceremonies undermines the applicant’s claims that the Sri Lankan authorities and/or local Christians were fundamentally opposed to it, and that he played a key role in resisting their opposition.  

21. The Tribunal accepts that there was some local disagreement about the plans to develop a temple, that the army held a public meeting, and that the applicant was a key organiser for the project. However, it is not satisfied that it has a complete, reliable account of the history of the temple; the basis for the opposition to it, the applicant’s central role in the project; or the circumstances that allegedly led the Sri Lankan authorities to target him.

    Army/CID treatment of the applicant in the village  

22. Original statement: The applicant claimed that the army called him and others (‘us’) in for questioning. They claimed that it was Buddhist land, and questioned who had given permission for the construction of a Hindu temple. The applicant added that ‘they wanted to stop us from practising our religion’.

23. The applicant added that the army referred the matter to the CID; both organisations shared the local military camp. They started to harass the people involved in the [Organisation 1]. They called the applicant to the camp, sometimes holding him for the whole day. Sometimes they took him at night. The applicant claimed that they used to pick him up at home or on the street, ‘once or twice a week’ (but he did not spell out how many occasions this took place, i.e, over what period).

    §  It became clear to him that his involvement in the temple project led the army and CID to suspect that he was linked with the LTTE and the Tamil separatist movement.

    §  They asked why he thought he could build a Hindu temple on Sinhalese land.

    §  They swore at him, and held a gun to his head. They warned that they could kidnap or kill him, and no one could do a thing about it.

24. Recent claims: In recent statutory declarations, the applicant claimed that two days after the public meeting, CID members came to his home and told him to accompany them to the district office of the CID. He was questioned for about three to four hours, mostly by one officer, although another two joined him from time to time. The interrogation started off civilly, but grew more aggressive. There was no violence or torture, but the officers were holding guns, and the applicant found it confronting and threatening.

25. The applicant concluded after this meeting that the CID was intent on extracting a confession from him that he had been part of the LTTE, and had been involved in criminal or political activities. Moreover, there was constant monitoring, and he felt unsafe in his relatively small [village].    

26. At hearing, the applicant said that the CID called him into the camp two or three times, for about three or four hours on each occasion. He did not respond directly to the Tribunal’s questions as to whether the same thing happened on each visit, but said that the interrogation became increasingly aggressive. At one point, during the third visit, they held a gun to his head and said that if they wanted to, they could kill him on the spot and blame the LTTE.

27. The Tribunal put to the applicant that in his earlier statements, he had claimed to have been taken by day or night; and sometimes detained the whole day; and that this would happen once or twice a week. This seemed very different from the current version that he was taken a total of two or three occasions. In response, the applicant said that, when he attended the camp, the interview would last three or four hours, but after arriving there, he might have to wait around for three or four hours to see someone. In other words, he suggested that it more or less took up the whole day. He reiterated this in his post-hearing statement, but did not clarify his earlier statements about the frequency of these encounters. The Tribunal finds that there are some common elements in the applicant’s claims over time, such as the CID conduct of them and an instance when they held a gun to his head. However, his claims about the frequency, duration and circumstances of these interrogation sessions vary markedly, and add to the Tribunal’s concerns about the truthfulness of his claims.

28. As noted above, in his original statement, the applicant wrote that the army referred the ‘temple issue’ to the CID; that they were both located in the military camp; and that ‘they’ then started to harass the people in the committee. At hearing, he referred only to the CID. In his post-hearing submission, he clarified that although the army instigated enquiries about the temple, it was the CID who called him in to their section of the military camp for questioning. The Tribunal notes that the earlier statements were somewhat unclear, and draws no adverse inferences from what appears to slight differences of emphasis.

    Departure from the village

29. The applicant claimed that the repeated interrogations and threats led him to fear that the authorities would eventually kill him, so he left the village for [City 1].

30. In his pre-hearing statement, the applicant wrote that he decided to go to [City 1], because it is larger and more anonymous than his village, while still a Tamil town. He spent about a week making preparations. Once in [City 1], a friend helped him find accommodation and he enrolled in a [course]. In this context, the applicant wrote: ‘I had no idea about travelling overseas or seeking asylum at this time, I was young and uneducated’. The applicant enrolled in a [course] at [college]. According to his pre-hearing statement, he found accommodation in a part of [City 1]; this turned out to be [not far]from an army camp.

31. The Tribunal finds several aspects of the applicant’s account of his ‘flight’ from the village to [City 1] problematic.

    §  First, the Tribunal noted at hearing that the applicant’s enrolment in [a] College, and his accommodation near an army camp, hardly suggested that he was in hiding from the Sri Lankan authorities or others, or that he acted hastily. The applicant explained that he had relied on a friend to make all these arrangements.

    -   In relation to the [course], the applicant acknowledged that his enrolment there would have provided a ready means for the military to locate him, had they had an adverse interest in him. He said that, although he actually went there to hide, he had to have a pretext for the move.

    -   He said that, ultimately, his enrolment at this college or indeed anywhere else had no effect on his traceability, as he had to register with the local authorities anyway, and they in turn would inform the military as to his whereabouts. In effect, he claimed that he was on borrowed time throughout Sri Lanka. At the same time, the applicant claimed that his enrolment in the [course], at the age of [age], was somewhat unusual; and added to his fears of attracting adverse attention from locals and, ultimately, the Sri Lankan authorities. These comments reinforce the Tribunal’s doubts about the applicant’s claims. It is difficult to believe that the applicant would enrol in a course in a well-known school, and one where he would stand out as an older student if, as claimed, he had defied the Sri Lankan authorities and feared they would eventually track him down.

    -   The Tribunal also signalled its disquiet that the applicant went to live close to an army camp, if he feared the Sri Lankan authorities. The applicant explained that he had little knowledge of [City 1], as his business activities involved [travel] between [City 1], Mullaitivu and [Town 2]. He drew a map to show the distance between the main road that led to the market, and the [area] of [City 1] where a friend had found accommodation for him. The Tribunal finds these explanations unpersuasive. It appears that the applicant did not make enquiries – for instance, directly, on-line or through word-of-mouth (eg. via the friend who helped him move to [City 1]) – to consider what might be (relatively) safe options for him in [City 1]. The Tribunal formed the impression that the applicant had not turned his mind to these issues, and was not speaking from personal experience.

    -   Again, the applicant claims that living near the army camp added to his problems. For instance, the frequency of checkpoints were, to him, ‘an extension of the general harassment, questioning and suspicion that [he] suffered as a Tamil’. In his post-hearing submission, the applicant also claimed that living near the army camp made him a person of interest to the CID and other military personnel, and is possibly a further reason why they came to realise that he was a fugitive from Mullaitivu.

    §  The applicant suggested that his naivety and lack of experience or education might explain in part his conduct in [City 1]; and that he had never thought of going abroad until his return to Mullaitivu. However, the Tribunal finds it difficult to believe any of this. His claims regarding the ‘temple issue’ turn in large part on his education (and claimed role as a spokesperson for the committee). He is a businessman, and ran a [business] from 2005 until 2012, travelling between major towns in the north-east. And, as he confirmed at hearing, he obtained a passport in 2006. While he may have had no firm plans at that time, this is a clear indication that he had turned his mind to the possibility of overseas travel. In sum, the Tribunal is not satisfied that the applicant’s youth, lack of experience or education, or other factors adequately explain why his conduct in [City 1] appears to be at odds with his claimed fear of the Sri Lankan authorities.

1. The Tribunal finds the applicant’s account of his move to [City 1], and his renewed problems there, contrived and unpersuasive. It accepts that, on his arrival in [City 1], he had to call on local authorities and register his name. However, it does not accept as truthful that he had to move there in haste; that he had no option but to rely on friends to help him find accommodation; or that he had no knowledge about his location there, or other factors. The Tribunal also does not accept that the applicant was living in fear, whether because of his ongoing contacts with the Sri Lankan authorities (at checkpoints or while registering), due to his proximity to the army camp, due to his profile as an older student at the college, or as a result of any past dealings with the authorities in Mullaitivu.

   Renewed problems in [City 1]

2. The applicant moved to [City 1] in March 2012, and spent three months there before leaving for Australia in July 2012. He was enrolled in a course in [City 1], but discontinued it to travel to Australia.

3. Original statement: The applicant wrote that he went to [City 1], and undertook some studies there. However, he believed his ‘time would run out in [City 1], too, since the army is everywhere and [he] could not hide from them. [Moreover,] the army keeps track of who moves where through their registration process’. He added that the Sri Lankan authorities[13] called on his mother to ask about him (by implication, these were the authorities stationed in Mullaitivu). She told them that he had left for overseas, and she had no prior knowledge of his travel. The clear implication from these written statements is that nothing happened in [City 1], but the applicant felt motivated to leave Sri Lanka because he knew it was only a matter of time before the authorities located him.

   [13] The statement refers to ‘they’, meaning the army and/or CID.

4. Department interview: The applicant told the delegate that army personnel[14] questioned his mother in Mullaitivu, and following this, they sent his file to [City 1]. The authorities in [City 1] then called him in for questioning. They had his file in front of them, and told the applicant that they counterparts in Mullaitivu had sent it there.

5. Evidence to the first and second Tribunal: The applicant told the first Tribunal that, one day after he returned from class to his rented room, two CID officers in plain clothes told him that the army had informed them he was hiding in [City 1], and that he was required to return to Mullaitivu for questioning. Following this, his landlord asked him to leave his room, and a month later the applicant returned to Mullaitivu.

6. At the most recent hearing, the applicant re-stated that a CID officer appeared at his [accommodation]; that they had learned he was in hiding in [City 1]; and that he had to to back to Mullaitivu for investigations. The Tribunal asked him about the CID’s source of that information. He replied that he had registered with the local (village) authorities in [City 1]. In accordance with usual practice, they then informed the CID, who then initiated their investigation of him. Asked about the [City 1] CID’s other sources of information about him, the applicant said that there were checkpoints between his accommodation and the college, and he often had to give his details to officers there.

7. The Tribunal reminded the applicant that he had previously claimed that the [City 1] CID knew of his presence because his mother had told their counterparts in Mullaitivu. The applicant said that was also a reason. In his post-hearing statement, he clarified that he has ‘always explained that it was for multiple reasons,’ He re-stated that the CID had called on his mother after his departure, and she had told them that he had gone to [City 1]. And he added that the CID quickly learned about his whereabouts because he was living close to the army camp.

8. The applicant has at various times mentioned both: (a) his mother’s disclosure to CID officials in Mullaitivu of his location in [City 1]; and (b) the Sri Lankan authorities in [City 1] having developed an adverse interest from their own checks. These are, of course, not mutually exclusive. However, the applicant’s failure at hearing to mention his mother’s role in informing the authorities that he had moved to [City 1] is striking. The representative’s post-hearing submission stressed that persons may overlook aspects of their claims in a complex narrative, and urged the Tribunal not to draw adverse inferences from the applicant’s failure to mention his mother, until prompted. The Tribunal does not share the characterisation of this as a ‘minor discrepancy’. It acknowledges that it would be unreasonable to draw adverse inferences from this omission in isolation. However, in the context of the Tribunal’s broader concerns about the applicant’s claims and evidence, this does tend to reinforce them.

   Departure from Sri Lanka

9. As noted above, the applicant’s original written statement suggested that he left Sri Lanka because the authorities in Mullaitivu had signalled their ongoing interest in him, and he knew they would eventually pursue him in [City 1] (or elsewhere). He has subsequently claimed that the Sri Lankan authorities in fact located him in [City 1] and informed him that he had to return to Mullaitivu for further questioning. This prompted him to decide to leave Sri Lanka.

10. At the most recent hearing, the applicant confirmed his advice to the first Tribunal that he did in fact return to the village in Mullaitivu – not to comply with the officers’ orders, but rather to see his mother. Asked why he would risk going back to the village, if Sri Lankan authorities there were pursuing him, the applicant said he was at a loss as to what to do, and had no idea about leaving Sri Lanka or seeking refugee status.

11. In the Tribunal’s view, the applicant’s return to Mullaitivu casts further doubt on his claims: (a) to have ‘fled’ Mullaitivu for [City 1], in response to threats and mistreatment from CID officers near his village; and (b) that officers stationed in Mullaitivu had an ongoing adverse interest in him, which included consulting counterparts in [City 1] and sending his file there. Furthermore, while the Tribunal appreciates the applicant’s interest in visiting his mother and others before leaving Sri Lanka, and perhaps obtaining financial or other assistance; it does not accept at face value that he only formed the intention to leave the country after speaking with his mother, or that he was fearful, naïve and ill-informed. On the contrary, the applicant’s education and his previous acquisition of a Sri Lankan passport suggest that he had the means to seek further information if needed, and that he had already thought about leaving the country, at least in some form.  

    Subsequent events

12. The applicant claims that, even to the present, CID officers call by his mother’s home from time to time. They change roster every six months, and come by his home with the applicant’s file, to make new enquiries. He said they typically ask whether the applicant has secured residency in Australia, and remind his mother that if he returns, he must report to local officials. He said that his mother had told them he is in Australia (implicitly, to relieve the pressure they exert on her). The applicant claimed that his mother is fearful.

    The applicant’s work and other arrangements

13. The applicant’s circumstances as a whole – at least following the war – raise questions about his claims, and his need for protection. He lived in his home village until March 2012, and had resumed his business [in] Mullaitivu, [Town 2] and [City 1], all of which were former LTTE-controlled areas where routine checkpoints were in place. In March 2012, he moved to [City 1], where he enrolled in a [course] at a well-known college. He arranged for his [vehicle] to be sold after his departure from [City 1]. While the Tribunal acknowledges the traumatic effect of the war on civilians in north-eastern Sri Lanka, and the ongoing presence of the military, the applicant’s resumption of his business activities, his move to [City 1], and his pursuit of further education opportunities, all suggest a degree of (relative) stability and normalcy. These add to the Tribunal’s doubts about the truthfulness of his claims.

    Findings

14. Having regard to the applicant’s claims and evidence as a whole, and particularly in light of the concerns set out above[15], considered cumulatively, the Tribunal makes the following finds:

    [15] See in particular paragraphs 36, 40, 44, 52-53, 59, 63-64, 71, 73-74, and 76.

    §  It accepts that the Sri Lankan authorities (army and CID) questioned him and his mother while they were in the IDP camp; and that they undertook further routine enquiries after his release in [City 2]. The applicant’s circumstances – as a Tamil male from Mullaitivu – were similar to many other locals. The Tribunal accepts the military’s interest in him may have been piqued by the fact that he stayed in Mullaitivu, rather than travel to [City 3] and surrender, as his brothers had done. However, it finds that the military accepted his explanation that he stayed on to assist his mother, and that they had no specific adverse interest in him, including as a suspected LTTE member.

    §  The Tribunal accepts that the applicant was one of [many] young men who, in late 2011 and early 2012, raised funds and sought approval for the construction of a Hindu temple. It accepts that the applicant was ‘[Position 1]’ of the committee, who helped promote the project, raised funds and organised the approval. The Tribunal finds that the applicant has exaggerated his role in the project, and does not accept that he had ‘sole responsibility’ for it.

    §  The Tribunal accepts that the local authorities approved the project, but that the army intervened and called a public meeting, and that the construction stalled after the foundation stone was laid.

    §  The Tribunal finds that, in subsequent years, the temple has been built, albeit as a modest structure, and local Hindus worship there. Against this backdrop, the Tribunal does not accept that the Sri Lankan authorities were fundamentally opposed to the temple on ethnic or religious grounds (as Buddhist Sinhalese objecting to Hindu Tamils having a place of worship); or that local Christians opposed it on religious grounds. The evidence strongly suggests that the construction stalled for multiple reasons, which may have included factors such as local personality or planning issues, and/or finances; as well as some ethnic/religious tensions. The Tribunal is unable to determine the precise reasons, but finds with confidence that it was not due to intractable communal (ethnic/religious) conflict. The Tribunal does not accept that the temple’s current modest structure indicates that local Hindus have no, or only limited, religious freedom.

    §  The Tribunal does not accept that local Christians made false allegations to the army or CID that the applicant was an LTTE member, in the course of trying to stop the temple construction, or for any other reasons.

    §  The Tribunal does not accept that the Sri Lankan army and CID called the applicant in for questioning and mistreated him, including holding a gun to his head (due to his role as [Position 1] of the committee, his conduct at the public meeting, any perceived defiance on the committee’s part in their actions, or for any other reason). It also does not accept that the CID accused the applicant of being associated with the LTTE, or they led him to believe that he would (in any event) be charged with other political or criminal offences. The Tribunal does not accept that the applicant left for [City 1] in response to any such questioning or mistreatment.

    §  The Tribunal accepts that the applicant registered with the local authorities on his arrival in [City 1]’s [district]; that he lived near an army camp; that the army and CID were aware of his location; and that he used to pass multiple checkpoints, in particular because he lived near an army camp. However, the Tribunal does not accept that the army or CID officials in Mullaitivu came looking for him because he had failed to report to them; that they questioned his mother; or that, on learning that he was in [City 1], they sent his file there.

    §  The Tribunal also does not accept that the Sri Lankan authorities in [City 1] called the applicant in for questioning, at their own initiative (after local authorities referred his details to them, as a result of his residence close to an army camp, or following routine checks), or at the behest of their Mullaitivu counterparts.

    §  The Tribunal does not accept that the applicant fled Sri Lanka following renewed adverse attention from the army and CID in [City 1], and/or continued harassment of his mother, or any similar reasons.

    -   It finds that he left when the opportunity arose for him to obtain passage to and a possible fresh start in Australia; that he returned to Mullaitivu to farewell his mother and other family and friends; and that he did not do so in fear, or at a loss of what else he could do.

    -   While the Tribunal accepts that the applicant’s and his family’s experiences during the war, and their concerns about the prospects for Tamils (and Tamil Hindus) in Sri Lanka, influenced the applicant’s decision to leave that country, it does not accept that he did so due to any recent persecution or significant harm, or any imminent fear of it.

    §  The applicant claimed that his landlord in [City 1] asked him to leave his rental accommodation, implicitly because he (the applicant) was in trouble with the authorities and this, in turn, would cause problems for the landlord. The Tribunal accepts that the applicant’s lease came to an end, but it does not accept that the applicant’s landlord terminated the lease in order to avoid problems with the authorities.

    §  The Tribunal finds that the applicant returned to his village in Mullaitivu to farewell his mother and others; it does not accept that he did so in fear, and not knowing what else to do.

    §  The Tribunal finds that the Sri Lankan authorities, including the army and CID, in Mullaitivu and [City 1], have no adverse interest in the applicant, and in particular, no adverse interest in him as a suspected LTTE member or sympathiser.    

15. The Tribunal does not accept that the Sri Lankan authorities have periodically come to the applicant’s home looking for him following his departure.

16. The Tribunal accepts that the applicant left Sri Lanka illegally, and without using his passport.

17. As the Tribunal noted at hearing, the Australian authorities will not inform their Sri Lankan counterparts about his protection visa application or its contents, Nonetheless, it accepts that, if his protection visa application fails, the Sri Lankan authorities will likely come to know that he unsuccessfully sought asylum in Australia, having regard to his profile (as a Tamil male who travelled to Australia by boat during 2012) and/or in light of any arrangements for his return to Sri Lanka (such as an application for a travel document, or his flight bookings).

    ASSESSMENT: REFUGEE CRITERION

18. The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s future conduct if he returns to Sri Lanka, and relevant country information, he has a well-founded fear of Convention-related persecution, now or in the reasonable foreseeable future.

19. The submission of 23 September 2019 states that the applicant seeks protection on the grounds of his race (Tamil), religion (Hindu), his imputed political opinion and his membership of a particular social group, which it identifies as ‘a person who has breached Sri Lanka’s departure laws and sought asylum in Australia’. It states that the Sri Lankan authorities will impute an anti-government and pro-LTTE political opinion to him on the basis of the following attributes (which the Tribunal summarises, as they are overlapping):

    (a)  as a young, Tamil male who used to live and work in an LTTE-controlled part of Sri Lanka;

    (b)  on account of his past arrest, detention, interrogation and threats on suspicion of being involved in the LTTE;

    (c)   past surveillance in Mullaitivu and [City 1];

    (d)  the CID’s past file on him as an LTTE suspect, and his imputed political opinion as such;

    (e)  his illegal departure from Sri Lanka; and

    (f)    his status as a failed asylum seeker, i.e. as someone believed to have been critical of the Sri Lankan authorities.

20. The applicant stated at hearing that, if he returns to Sri Lanka, he would go back to his village. Given that the applicant’s mother and [brothers] live in Mullaitivu, the Tribunal accepts that he will return there, at least in the short term. Having found that the applicant moved to [City 1] for educational and perhaps employment reasons (i.e. not to flee from the army and CID in Mullaitivu), the Tribunal considers it possible that he will look for opportunities there or in other places in Sri Lanka.

21. The assessment below draws on country information from various sources, including those cited in the applicant’s submissions and other materials discussed at hearing. It drew on DFAT’s 2018 country information report at hearing, and provided the applicant and his representative the opportunity to comment on the more recent report of 4 November 2019, which is substantially similar. At hearing, it flagged that it would consider carefully what weight to place on information from various sources, taking into account (among other things) their perspective or agenda. In the pre-hearing submission, the representative noted the Tribunal’s obligation to ‘rely’ on DFAT’s reports, and the ‘apparent advantage’ of relying on official sources over ‘reports from non-government organisations, including media and charities’, but cautioned that official standpoints may ‘mask the existence of persecution in practice, unacknowledged, unmanageable, tolerated or even perpetrated by the government in question’. The Tribunal acknowledges the validity of these points. In relation to DFAT’s most recent reports, which the Tribunal is required to ‘take account of’ (and not ‘rely on’ or take as conclusive), it is satisfied that these identify official Sri Lankan sources as appropriate; that caution is required when referring to or relying on official Sri Lankan statements; and that, overall, the DFAT reports present a current, balanced assessment based on multiple in-country sources (and not merely official statements).    

    Tamil ethnicity and background

22. The applicant claims that he is at risk of serious harm, as a Tamil; and as a young Tamil male from Northern Province. Closely related to these claims are those related to an imputed political opinion, which derive from his claimed past experiences. (The Tribunal addresses these below.)

23. Tamils are the largest group in Northern Province, comprising some 93.8 per cent of the population. The Tribunal put to the applicant DFAT’s assessment[16] that the situation for Tamils has improved markedly since the end of the conflict; that they face a low risk of official and societal discrimination (as do Sri Lankans of all backgrounds); and that, broadly speaking, this did not appear to amount to a real chance of serious harm. As noted in the first Tribunal’s decision, the 2012 UNHCR Eligibility Guidelines for Sri Lanka[17] recommended individualised merits assessments for Sri Lankan asylum seekers, and identified certain risk profiles, such as persons suspected of having links with the LTTE, as requiring careful assessment. This is consistent with current country information indicating that Tamil males from the north and east do not automatically have a well-founded fear of persecution. The applicant’s advice that his mother and two brothers current live and work in Mullaitivu, without significant problems[18], tends to support this.

    [16] The DFAT reports from May 2018 and November 2019 are consistent on these points.

    [17] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012

    [18] The Tribunal has rejected the applicant’s claim that local officials harass his mother regularly.

1. The applicant and his representative at the first hearing voiced particular concerns at the future prospects for Tamils in Sri Lanka in light of recent political developments. They foreshadowed the recent election victory of Gotabaya Rajapaksa, who was in fact sworn in as president on 18 November 2019. As the BBC recently noted[19]: Mr Rajapaksa, who has positioned himself as a strong figure who can assure Sri Lankans' security, is a highly controversial figure among the country's more than two million Tamils. He and his brother Mahinda Rajapaksa, the former president, spearheaded the defeat of separatist Tamil Tiger rebels in 2009, ending a decades-long war in which at least 100,000 people died.’ The applicant expressed his fears as follows in his statutory declaration of 10 October 2019: ‘[Following Gotabaya’s announcement of his candidacy,] I am even more fearful about returning to Sri Lanka. He was the defence chief and orchestrated all the atrocities against Tamils during the civil war. He was the one responsible for all the troubles I suffered in Sri Lanka and I fear what life would be like in the future if I had to live there with him as President’.

   [19] BBC On-line, 17 November 2019, Sri Lanka election: Wartime defence chief Rajapaksa wins presidency:

2. The post-hearing submission did not present any such evidence, but cautioned that the Tribunal had to apply the ‘real chance’ test, and consider the applicant’s prospects not just now, but in the ‘reasonably foreseeable future’. It goes on to identify three factors that could give rise to anti-Tamil violence in the future: (a) the fact that ‘one of the key perpetrators’ of past ‘crimes’ (i.e. Gotabaya Rajapaksa) will become president; (b) the failure to resolve the root causes of conflict between the Tamil and Sinhalese communities; and (c) the minimal progress in redressing past war crimes and abuses. It posits: ‘Given Sri Lanka’s past conflict, it should stand to reason that the country could readily open itself to ethnic violence in the reasonably foreseeable future’. The applicant also pointed to recent local election gains for Rajapaksa’s party, particularly following the Easter Sunday terrorist attacks, and social media postings (for instance, on Facebook) warning Tamils that they ‘will see white vans again’, as further ominous signs for Tamils.

3. Ms [C] expanded on these concerns at the second hearing, reflecting in particular on the early months of Gotabaya Rajapaksa’s presidency. She noted G. Rajapaksa’s pivotal role as Defence Minister during the civil war, including his association with human rights abuses (such as ‘white van’ abductions). She highlighted that so far, as president, he has continued to foster anti-Tamil sentiment; and he has shown indifference towards human rights and democratic processes (for instance, through his dissolution of parliament on 2 March 2020[20] and his promotion of persons associated with past war crimes). The upshot, she contended, is that the Sri Lankan authorities can pursue the applicant (and other Tamils) with impunity, and he cannot look to them for protection. Ms [C] observed that these recent developments raised questions about the currency and validity of DFAT’s latest assessments and comments on the treatment of Tamil returnees (failed asylum seekers and persons who had departed illegally). In reply to the Tribunal’s question, she said that she did not have any specific examples of renewed targeting of Tamils (including returnees), but she extrapolated these concerns from the president’s past record and ongoing conduct.

   [20] See, for instance, Al Jazeera, 3 March 2020: Sri Lankan parliament dissolved; elections set for April:

4. The Tribunal accepts that recent political developments, in particular the strident pro-Sinhalese rhetoric during the election campaign, have caused consternation for Tamils and members of other minorities. Unresolved communal tensions, the broad political shift towards conservative, pro-Sinhalese leaders; the president’s conduct and signals in office, and instances of anti-Tamil abuse on social media platforms, have no doubt added to these concerns. However, the Tribunal does not detect in these the emergence of actual threats of persecutory harm towards Tamils (including Tamil returnees), in the reasonably foreseeable future. It has also not found reports, analyses or commentary flagging concerns about the prospects of such harm within that timeframe.   

5. The Tribunal places weight on the assessments of DFAT and others, concerning the current and prospective outlook for Tamils (particularly those in the North East).  On the available material, it is not satisfied that there is a real chance, now or in the reasonably foreseeable future, of the applicant – as a Tamil, or as a Tamil man from the Northern Province, and from Mullaitivu specifically, and/or in his age group – being subject to serious harm amounting to persecution.     

   Hindu faith

6. The Tribunal has accepted that the applicant is a Hindu, and that he was involved in a youth committee that prepared for the construction of a Hindu temple in his village.

7. The applicant’s claims based on religion are closely related to those of his Tamil ethnicity; and they feed into his other claims (such as imputed political opinion, and as a person who has defied the Sri Lankan authorities). Essentially, there are two strands to his claims: (a) in his original statement of claims, the applicant claimed that [the army] ‘wanted to stop us from practicing our religion’; and (b) a more prominent claim has been that his role in the construction of the Hindu temple elevated his profile, as a Hindu and an opponent of the Sri Lankan authorities.

8. As noted in DFAT’s 2018 report, and discussed at hearing: ‘Most Tamils in Sri Lanka are Hindu. In December 2016, Minority Rights Group International reported allegations by activists and politicians of violations affecting Hindu places of worship. The 2017 report by the UN Special Rapporteur on minority issues reported allegations of ‘… systematic, government-sponsored movements of Sinhalese settlers to the Tamil-speaking areas [in the north and east] that are intended to change the demographics of the region, to the political disadvantage of the minorities.’ This included the rapid development of new Sinhalese settlements and military-assisted construction of Buddhist statues and temples in areas that have no Buddhist population. DFAT is not aware of any organisations in Sri Lanka that systematically document violations against Hindus, and as such cannot verify this information.’ DFAT’s 2019 report is broadly consistent with this information.

9. Freedom of religion: As noted above, the applicant’s original statement includes the claim that the authorities want to prevent him from practising his religion. General country information indicates that religion plays an important role in daily life in Sri Lanka, and that there are constitutional and legal protections for freedom of religion. Nonetheless, discrimination and occasional acts of violence do occur, and religious minorities (particularly Muslims) express concerns about the State’s resolve to protect them against Buddhist extremists. In the North and East of the country, Sinhalisation and the military presence have led to localised tensions with local Hindus, often involving property rights.

10. The applicant’s broad claim about religious freedom has been less prominent in his later claims and evidence; he concentrated instead on the specifics about the Hindu temple in his village. However, he returned to this at the most recent hearing. He claimed there are ongoing tensions in Mullaitivu and the whole Northern Province, where Buddhists are seeking to restrict Hindu practices. He spoke in detail about one village – just [a few] villages away from his own – where local Buddhists had insisted on performing cremations in a Hindu temple, and defied a court order to desist. This had created communal tensions, with local Buddhists and the authorities exerting pressure on the Hindus (and, by extension, local Tamils).

11. The Tribunal accepts, on the basis of country information and the applicant’s account, that religious tensions between Hindus and Buddhists occur from time to time. Anecdotal evidence suggests that, while religious (or ethnic) factors may be the underlying cause, the triggers can be issues such as personal conflicts, property rights or the performance of rituals (such as cremation).

12. However, in light of the above findings of fact, the Tribunal is not satisfied that the army’s and/or Christians’ concerns about the Hindu temple in the applicant’s village signalled their resolve to prevent him from practising his faith. According to the applicant’s own evidence, his mother and family members continue to live there and practice their faith; the Hindu temple exists and rituals are performed there; and no measures are in place to stop or inhibit such activities. Moreover, the Tribunal places some weight on his characterisation of relations between Hindus and Christians in the village as ‘harmonious’. The applicant stated that local Hindus nonetheless feel vulnerable; that the temple is only a makeshift structure (and, by implication, not the more permanent or impressive building originally envisaged); and that local Christians are not happy with the arrangement. Having regard to the evidence as a whole, the Tribunal does not accept that the applicant faces a real chance of experiencing discrimination or other harm (such as threats or physical harm), based on his Hindu faith, now or in the reasonably foreseeable future; or that there is a real chance of him being prevented from practising his faith or being forced to modify his conduct.   

13. Construction of the Hindu temple: The applicant claims that the Sri Lankan authorities’ (that is, the local army and CID officers’) opposition to the construction of the Hindu temple, and Christian concerns at its proximity to their school and church (which in turn motivated them to make false allegations about him), put him at ongoing risk of being targeted if he returns to the village. This is in large part due to his central role as [Position 1] of the [Organisation 1], and his defiance of local orders not to lay the foundation stone and proceed with construction. The authorities’ repeated questioning, detention and physical/psychological mistreatment of the applicant illustrates their adverse interest in him.

100.   The Tribunal has accepted above that the applicant was the [Position 1] of the [Organisation 1] that initiated and organised the construction of the temple; and that the Sri Lankan authorities put a temporary halt to the project. However, it does not accept that they questioned, detained, threatened or physically mistreated him in connection with the temple; that they developed an adverse interest in him as a result of his conduct at a public meeting to discuss the issue; or that they regard him as having defied them. Similarly, the Tribunal does not accept that local Christians made allegations that he was an LTTE member, as a means of stymying the project; or that the army/CID went on to regard the applicant as a suspected LTTE member. In other words, the Tribunal does not accept that the applicant has any adverse profile, past or ongoing, as a result of his involvement in the project to build the temple. The factors mentioned above – such as his family’s continued residence in the village, and their worship at the temple; and the temple’s current operations – support and reinforce the Tribunal’s conclusions.

101.   In sum, the Tribunal finds that the applicant faces no real chance of serious harm amounting to persecution, on the basis of his religion or his association with the temple project, now or in the reasonably foreseeable future.

Failed asylum seeker and consequences of illegal departure

102.   The Tribunal accepts for the purpose of this decision that the applicant’s return to Sri Lanka would be on an involuntary basis. It accepts that, although the applicant has held a Sri Lankan passport, that document has now expired and he would most likely return to Sri Lanka on a temporary travel document. Although the Australian authorities will not reveal the fact of the applicant’s protection visa application, the Tribunal also accepts - on the basis of the applicant’s profile, the timeline of his travel to Australia and return to Sri Lanka, common knowledge about Sri Lankan asylum seekers, and the processing of his return - that the Sri Lankan authorities would assume that he unsuccessfully sought protection in Australia.

Treatment on return

103.   The material before the Tribunal raises questions about the applicant’s prospects as a returnee from several overlapping perspectives: (a) whether the Sri Lankan authorities draw adverse inferences from the mere fact that a person is suspected of having sought protection abroad; (b) whether Tamil returnees, or those with particular characteristics, face a real chance of persecution (or significant harm); and (c) whether the processing of failed asylum seekers exposes them to particular risks.

104.   The Sri Lankan authorities’ treatment of the applicant on his return to Colombo Airport, and his subsequent actions, were addressed at hearing and in submissions. As noted above, the Tribunal drew largely on information from the May 2018 DFAT report, but considers that the November 2019 DFAT report is consistent with the information discussed at hearing.

105.   Reports indicate that various Sri Lankan agencies, including the Department of Immigration and Emigration, the State Intelligence Service, the CID and, at times, the Terrorism Investigation Division process returnees at Colombo’s international airport. They check travel documents and identity information against immigration databases, intelligence databases and records of outstanding criminal matters. This process can take several hours, depending on administrative processes, interview lengths and staffing constraints. Returnees are processed in groups, and individuals cannot leave until they are all processed.  

106.   The DFAT reports also both state, in identical terms:

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.

107.   The Tribunal accepts that the authorities will interview the applicant, and that he will be required to remain at the airport during this process. In light of the above findings, the Tribunal does not accept that the applicant has any adverse criminal or security profile with the authorities in Mullaitivu, [City 1] or anywhere; and therefore does not accept that he is at risk of having his clearance delayed for any such reasons.

108.   The Tribunal accepts that routine identity and security checks will likely involve the airport police contacting their counterparts in Mullaitivu. The UNHCR and other sources indicate that the military or police are known to call on returnees at home after their arrival.[21] The Tribunal accepts as plausible that the Sri Lankan military or police may call on the applicant when he is back in Mullaitivu. However, having rejected the applicant’s claims that they harassed and mistreated him after his return there; that they detained and mistreated him in connection with the Hindu temple project; and that they continue to call on his mother enquiring after the applicant, the Tribunal does not accept that they have any past or ongoing adverse interest in him. The Tribunal therefore finds that there is no real chance of the Sri Lankan authorities in Mullaitivu, if they contact the applicant on his return there, pursuing and inflicting serious harm on him.

[21] See, for instance: UNHCR 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December, p.8

109.   The Tribunal now addresses below whether other factors – his return as a failed asylum seeker, as a Tamil and/or (claimed) LTTE suspect – may give risk to adverse treatment on his return. (It addresses the question of his breach of illegal departure separately, below.) 

Failed asylum seeker

110.   The applicant and his representative did not expressly claim that his status on return to Sri Lanka as a failed asylum seeker would of itself give rise to a real chance of persecution. At hearing, the applicant thought that the Sri Lankan authorities would probably guess that he has applied for asylum in Australia. For the reasons stated above, the Tribunal accepts that they will likely identify him as a failed asylum seeker.

111.   The Tribunal put to the applicant country information that there is no information that the Sri Lankan authorities or others target pursue failed asylum seekers; and that Prime Minister Wickremasinghe stated publicly that they were welcome to return to Sri Lanka (although that statement is viewed with caution).[22] The applicant stressed that his presentation to the Sri Lankan authorities on arrival will prompt them to enquire about his past, and uncover his dealings with the CID (and his suspected LTTE association). However, for the reasons stated above, the Tribunal does not accept that the authorities in Mullaitivu or [City 1] have any adverse interest in the applicant, including in relation to the LTTE or anti-government political opinion, or that they have fabricated any political or criminal case against him.

[22] May 2018 DFAT report, para 5.38; November 2019 DFAT report, para 5.45.

112.   The Tribunal accepts as likely that the Sri Lankan authorities will presume that the applicant has sought protection in Australia. However, it is not satisfied that the applicant’s status as a failed asylum seeker gives rise to a well-founded fear of persecution.

Tamil returnee and suspected LTTE affiliation

113.   The representative’s submissions and the applicant’s evidence at hearing focussed very much on the risks to the applicant as a Tamil returnee, and in particular as a person suspected of having LTTE affiliations, an anti-government political opinion (through the Hindu temple activities) and/or some other political or criminal profile (which the applicant claimed the CID interrogation seemed to suggest). As noted in the first Tribunal’s decision in 2015, it could ‘no longer be assumed that all Tamils in northern Sri Lanka were connected with the LTTE, nor that Tamils face a real chance of suffering serious or significant harm solely on account of their Tamil ethnicity.’[23] Furthermore, the focus of the Sri Lankan government’s concerns after the conclusion of the war was ‘those who are perceived to be a threat to the integrity of Sri Lanka as a single state because they are perceived to have a significant role in relation to post-war separatism and a renewal of hostilities within Sri Lanka.[24] In light of the above findings, the Tribunal concludes that there is no real chance of the Sri Lankan authorities perceiving the applicant to be associated with the LTTE, or having any other profile that could undermine the government’s authority or national unity.

[23] Department of Foreign Affairs and Trade 2014 DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam 3 October; Department of Foreign Affairs and Trade 2014 DFAT Country Report 3 October; UK Home Office Operation 2014 Country Information and Guidance about Tamil Separatism in Sri Lanka dated 28 August; UNHCR 2012 Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from  Sri Lanka, 21 December;

[24] UK Home Office Operation 2014 Country Information and Guidance Report about Tamil Separatism in Sri Lanka, 28 August at 1.3.5-7

114.   Having regard to the applicant’s background, profile and past experiences, the Tribunal accepts that the Sri Lankan authorities will undertake routine questioning and investigations on his return, due to his Tamil ethnicity, his origins from Mullaitivu; his status as a failed asylum seeker, and his illegal departure from Sri Lanka (see below). However, the Tribunal finds with confidence that the applicant will be able to explain his circumstances, including his residency in Mullaitivu, his [business] in the area, and his past dealings with the authorities (both in the IDP camp, and in Mullaitivu and [City 1]). The Tribunal finds there is no real chance that the authorities will subject him to sustained questioning, detention or other treatment that, individually or cumulatively, involves serious harm amounting to persecution.

Illegal departure

115.   The offence: Sri Lanka’s Immigrants and Emigrants Act (I&E Act) makes it an offence to depart Sri Lanka other than through an approved point of departure. Penalties for breaches include imprisonment of up to five years and a fine of up to LKR 200,000.[25] The Tribunal accepts that the applicant left Sri Lanka without a passport and that he left from a place other than an approved place of departure.

[25] See Immigration and Emigration Act, s.45(1)(b), s.45(1)(o). 45http:// The December 2015 DFAT report sets out these figures. The May 2018 and November 2019 refer to custodial sentences (without mentioning the maximum period), and fines up to LKR 200,000.

116.   There was detailed discussion of this at hearing, and the pre-hearing submission addresses aspects of it. The Tribunal drew heavily on the May 2018 DFAT report, which is consistent with the more recent November 2019 DFAT report. The Tribunal considers the reports to be detailed and reliable, and notes that, where appropriate, they identify information that is anecdotal and/or unverified.

117.   Arrest and charging: According to DFAT[26], the Sri Lankan Attorney-General’s Department has directed that all those suspected of involvement in irregular migration – including fare-paying passengers – be charged under the I&E Act. The Police Airport Criminal Investigations Unit at Colombo Airport makes most arrests. The police take photographs, fingerprints and statements from returnees, and make further enquiries about their activities abroad if they are former LTTE members (or suspected members)[27]. The Tribunal accepts that the Sri Lankan authorities will likely identify the applicant as a person suspected of breaching the I&E Act; that the police will arrest and process him; and that they may make further enquiries, essentially of an administrative and migration nature..

[26] May 2018 DFAT report, para. 5.30; November 2019 DFAT report, para. 5.34.

[27] Note: The May 2018 DFAT report refers to further enquiries of former LTTE members, whereas the November 2019 report adds the qualifier ‘suspected’. The Tribunal is of the view that, during the course of these enquiries, the police will act on their suspicions (or knowledge, as the case may be) and there is no practical difference between the two

118.   Custody at the airport and on remand: DFAT advises[28] that apprehended persons are held in custody in the CID’s Airport Office, for up to 24 hours after arrival. If a magistrate is not available – for instance, due to a weekend or public holiday – the person may be held for up to two days, in an airport holding cell. At the earliest opportunity, the police transport the person to the closest Magistrate’s Court. As noted above, DFAT understands that all returnees, regardless or ethnicity and religion, are subject to the same processing, and not mistreated at the airport. The Tribunal finds, on the basis of these reports and in the absence of any persuasive contrary evidence, that the applicant faces the prospect of being detained at the airport and then in remand for up to several days.

[28] May 2018 DFAT report, para 5.30.; November 2019 DFAT report, para 5.34.

119.   Court processing: DFAT advises[29] that all persons charged under the I&E Act, including passengers of people smuggling ventures, are required to appear in court in the location where the offence occurred, which involves legal and transport costs. The most recent reports state, in relation to bail: ‘A guilty plea will attract a fine, which can be paid by instalment, and the defendant is free to go. Where a passenger returnee pleads not guilty, the magistrate will usually grant bail on the basis of personal surety or guarantee by a family member. Where a guarantor is required, returnees may need to wait for the guarantor to come to court.’

[29] May 2018 DFAT report, para 5.32; November 2019 DFAT report, para 5.37.

120.   Remand and bail: The Tribunal put to the applicant country information about bail requirements. At the first hearing, he replied briefly that he is aware of and accepts that he may be subject to such procedures. (He went on to reiterate his fears relating to being a suspected LTTE cadre.) The submission of 23 September 2019 noted that it is ‘plausible [that the applicant] will not be provided bail – compounded by his socio-economic situation in Sri Lanka, including his widower mother’. It goes on to state that, in these circumstances, the applicant’s period in custody will be longer, and the risk of the Sri Lankan authorities harming him seriously will rise accordingly. At the second hearing, the applicant again indicated that he did not have concerns about his access to bail, but reiterated his broader claims).

121.   The Tribunal notes that, alongside his mother, the applicant also has two brothers who live and work in Mullaitivu; and appears to have some standing within the Hindu community in his village. Furthermore, country information indicates that bail is not always required, and that it may be granted on the basis of personal surety or guarantee by a family member. Taking all this into account, the Tribunal finds no real chance of the applicant being held in custody for a lengthy period, on the basis that bail is required, and he and/or his family are unable to raise the funds. 

122.   Conditions in detention: The Tribunal accepts that the applicant faces a real chance of being detained at the airport for several hours, and then on remand for possibly a few days.

123. It is undisputed that ‘prison conditions in Sri Lanka do not meet international standards, including due to old infrastructure, overcrowding, and a shortage of adequate health and sanitary facilities’. The Tribunal acknowledges that the applicant’s detention during police investigations and while on remand will involve a loss of liberty, which is one of the examples of serious harm set out in s.91R(2) of the Act. In MIBP v WZAPN, the High Court rejected the Federal Court’s finding that under s.91R(2)(a), any loss of liberty, regardless of its duration, would amount to serious harm.[30] It held that whether the likelihood of detention rises to the level of serious harm requires a qualitative judgement, including an evaluation of the nature and gravity of the loss of liberty. In the present case, the Tribunal finds that the applicant’s detention at the airport and on remand, even if he arrived on the weekend and had to wait before he could appear before a magistrate and/or if he had to await for a guarantor to appear in court, would involve only a few days in overcrowded or unsanitary conditions. It is not satisfied that this amounts to serious harm.

[30] MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610 overturning WZAPN v MIBP [2014] FCA 947 (North J, 3 September 2014).

124.   The submission of 23 September 2019 contends that the applicant faces an elevated risk of Convention-related persecution in detention, for two reasons. First, it points to the risk that he will be detained for a longer period, due to the authorities’ wish to conduct enquiries into his past, and the ability of his family to raise bail. For the reasons stated above, the Tribunal finds that there is no real chance of the applicant being detained for a longer period, given that the Sri Lankan authorities have no outstanding issues to investigate and that he has avenues to raise bail (if required). Second, the submission posits that the applicant’s (prolonged) detention could give rise to adverse treatment, due to his ‘past activities and circumstances as a Tamil male previously questioned about his LTTE links and [anti-government] SLA opposition]’. At the second hearing, the applicant and his representative invited the Tribunal to consider that the anti-Tamil sentiment within the Gotabaya Rajapaksa-led government could add to his risk of being scrutinised and detained on his return. However, as the Tribunal noted, there is no independent reporting to suggest any recent change in the processing and treatment of Tamil returnees, including persons who departed illegally.  

125.   The Tribunal is not satisfied that the applicant’s status as a Tamil male or his past interactions with the Sri Lankan authorities[31] will prompt the Sri Lankan authorities to undertake further enquiries. On the contrary, the Tribunal considers that the applicant’s past dealings with the Sri Lankan army and CID will help satisfy officials that he was not a person of interest then, and is not now. For the reasons given above, the Tribunal does not accept that the Sri Lankan army and CID detained, investigated and mistreated the applicant in Mullaitivu, in connection with the Hindu temple; that they forbade him from leaving the area; that he defied them; or that the Sri Lankan authorities in Mullaitivu and [City 1] ordered him back to his home village to undergo further investigations, which he defied.

[31] Such as his detention in the IDP camp immediately after the war, and questioning there about his past activities (including LTTE contacts); periods of monitoring and reporting obligations (such as in [City 2] and after his return to Mullaitivu); routine checkpoints; and registering with local authorities in Mullaitivu and [City 1].

126.   The submission of 23 September 2019 addresses the issue of whether the applicant’s detention and related proceedings will reflect the non-discriminatory enforcement of laws of general application, i.e. the I&E Act. As noted above, it suggests that the applicant’s profile will motivate the Sri Lankan authorities to treat him in a discriminatory manner, which results in him being subject to serious harm.

127.   However, for the reasons given above, the Tribunal finds that there is no real chance of the applicant being subject to persecution while in detention. Furthermore, it is not satisfied on the available material that the I&E Act is selectively enforced or applied in a discriminatory manner, in relation to Tamils or any other group. It is also not satisfied that the applicant’s profile (in particular, those dealings with the Sri Lankan authorities that the Tribunal accepts did occur) gives rise to a real chance of the I&E Act being enforced in a selective, discriminatory manner that involves persecution.

128.   Having regard to the applicant’s treatment as a person charged and detained under the I&E Act, the Tribunal is not satisfied that he faces a real chance of serious harm, such as a threat to his life or liberty, or significant physical harassment or ill treatment, or any other form of serious harm.

129.   Pending court case: DFAT advises that those charged are required to appear in court in the place of their offending, and that the frequency of court appearances varies widely. Delays can be protracted, as court cases proceed only when all members of a people smuggling venture have been located. Once again, whether the applicant remains on bail for years pending the conclusion of any court process remains uncertain, and will depend on whether or not he opts to plead guilty to charges of illegal departure. However, the Tribunal is not satisfied that the expense and inconvenience of court proceedings amount to serious harm.

130.   Penalties: DFAT has consistently stated that the Sri Lankan authorities distinguish between fare-paying passengers and the facilitators and organisers of irregular migration. DFAT reports that the fines for illegal departure usually range from LKR 3,000 (approximately AUD 25) to LKR 200,000 (approximately AUD 1,633). The most recent DFAT report quotes sources as saying that a typical fine is between LKR 15,000 and LKR 30,000. They note advice from the Sri Lankan Attorney-General’s Department that no mere passenger on a people smuggling venture has been imprisoned under the I&E Act. The Tribunal recognises the need for caution in assessing such official statements although, as noted at hearing, it has found nothing to indicate that persons who have departed illegally have been imprisoned (including for non-payment of fines).

131.   The Tribunal finds, on the available material, that if the applicant pleads guilty he will have to pay a fine, in instalments if necessary. If he pleads not guilty, he will likely spend years awaiting a final court date, and if ultimately found guilty, likewise have to pay a fine. At the second hearing, the applicant indicated that he did not have any claims or concerns about his capacity to pay a fine, or the consequences of any failure to do so (but rather, reiterated his broader claims about the Sri Lankan authorities’ adverse interest in him, in particular, due to his perceived LTTE links).

132.   Having regard to the totality of the treatment that the applicant will likely face as a person charged under the I&E Act – including possibly several days in detention, in overcrowded, unsanitary conditions; a possible requirement to post bail and comply with bail conditions (such as reporting); and the possible uncertainty/expense of a protracted court process - the Tribunal is not satisfied that he faces a real chance of serious harm amounting to persecution. The Tribunal is therefore not required to consider, or determine, whether such harm is Convention-related (eg. whether it would be for the essential significant reason(s) of the applicant’s imputed political opinion, membership of a particular social group, or any other Convention reason).  

Political opinion

133.   The Tribunal accepts that the applicant, as a Tamil from Northern Province who lived through the civil war, disapproves of Sinhalese/Buddhist attitudes towards Tamils (including Tamil Hindus), the conduct of the government and military, and persistent political and economic disadvantages facing the Tamil population. However, he has not claimed to have a political opinion that he has been motivated to express or act upon in the past. On the available material, the Tribunal finds that the applicant does not have a political opinion that will form the basis for future action, or that the applicant will have to refrain from acting upon, for fear of being subject to persecution or significant harm.

134.   The applicant claims that the Sri Lankan authorities have in the past, and will in the future, impute to him a political opinion, based on various attributes – his Tamil ethnicity; as a ‘young Tamil male who has lived and worked in LTTE-controlled areas in Northern provinces of Sri Lanka’; his past arrest, detention, interrogated and threats, as a suspected LTTE associate; the applicant’s fears that the CID could also charge him with (unrelated) political or criminal offences;  the authorities’ past surveillance of him; the CID’s file on him as a suspected LTTE activist;  his illegal departure from Sri Lanka; and his status as a failed asylum seeker (who will be presumed to have criticised the Sri Lankan government).

135.   For the reasons given above, the Tribunal accepts some of these claimed attributes (the applicant’s Tamil ethnicity, his place of origin, his illegal departure from Sri Lanka, and his future status as a failed asylum seeker); but it does not accept that he has an adverse profile as a suspected LTTE associate or that he has been subject to the past harm claimed (other than questioning and detention, in the final stages of the war, and some degree of subsequent monitoring). The Tribunal has assessed these claims above, and concluded that the applicant does not have a well-founded fear of Convention-related persecution arising from them, including on the basis of any associated imputed political opinion.

136.   As for any residual claims based on an imputed political opinion, the Tribunal accepts that the Sri Lankan authorities may perceive the applicant as having criticised Sri Lanka’s society and government, in the course of seeking a better life abroad.

137.   The Tribunal considers that the Sri Lankan authorities will likely assume that the applicant went overseas to seek a better life, including more favourable economic, political and security conditions; and that implicit in this is criticism of Sri Lanka’s society and governance. However, the Tribunal is not satisfied that this equates to an ‘imputed political opinion, as anti-government and pro-LTTE’. Furthermore, there is considerable country information about the Sri Lankan authorities’ treatment of Tamils from Northern Provinces, persons who departed Sri Lankan illegally, and failed asylum seekers, all of which the Tribunal considers elsewhere in this decision. The Tribunal is not satisfied that the Sri Lankan authorities impute to such people an anti-government or pro-LTTE political opinion, which in turn motivates them to seriously harm such people.   

138.   The Tribunal finds that there is no real chance of the Sri Lankan authorities seriously harming the applicant on the basis of any political opinion, actual or imputed.

Conclusion

139.   The Tribunal has considered the applicant’s claims individually and cumulatively. For the reasons set out above, it does not accept that if the applicant returns to Sri Lanka now or in the foreseeable future that there is a real chance he will face serious harm for reason of his Tamil ethnicity, his Hindu faith, any imputed links with the LTTE (including as a young Tamil male from Mullaitivu, his experiences during the war, and his role in the local Hindu temple); any political opinion (actual or imputed); the fact of his illegal departure from Sri Lanka, and/or his return as a failed asylum seeker. The Tribunal finds that his processing as a returnee (failed asylum seeker) and as a person charged with illegal departure does not involve serious harm amounting to persecution.

140. The Tribunal that the applicant does not face a real chance of serious harm amounting to persecution for any Convention-reason (including his race, religion, political opinion or membership of any associated particular social group), now or in the reasonably foreseeable future, if he returns to Sri Lanka. It finds that he does not meet s.36(2)(a).

ASSESSMENT: COMPLEMENTARY PROTECTION

141.   The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm.

142. The Tribunal has accepted above that there is a real chance of the Sri Lankan authorities detaining the applicant on his arrival at the airport, for several hours; and then, detaining him on remand pending bail, perhaps for several days; that the conditions in detention are overcrowded and unsanitary; and that he may be fined, and/or subject to lengthy court processes. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. The Tribunal therefore finds that there is a real risk that the applicant will face such treatment.

143.   For the reasons that follow, the Tribunal is not satisfied that such treatment, individually or cumulatively, amounts to significant harm, in Northern Province or anywhere in Sri Lanka.

144.   First, based on country information about the treatment of detainees, the Tribunal does not accept that his treatment whilst in detention at the airport or in remand, or the duration of his detention over several days, amounts to significant harm as defined in s.36(2A). For the reasons stated above, it finds no persuasive country information to indicate that any period in prison in Sri Lanka (that is, every instance) gives rise to a real risk of torture, as a general proposition.

145.   As noted above, the submission of 23 September 2019 contends that the applicant is likely to spend a longer time in custody, and therefore be at a heightened risk of torture or other significant harm. Key reasons cited are: (a) his suspected LTTE links and anti-government (Sri Lankan army) political profile will result in detention and interrogation that is longer and more intensive than usual; (b) the added complexity for enquiries, given the passage of time; and (c) the risk that his ‘widower mother’ will not be able to raise bail, particularly given the socio-economic conditions in Sri Lanka. The submission contends that the duration of the applicant’s detention, and credible reports of the use of torture to extract confessions, all point to the risk of him being subject to significant harm.

146.   In light of the above findings of fact, and following on from its assessment under the refugee criterion about the applicant’s future interactions with the Sri Lankan authorities on his return, the Tribunal does not accept that the Sri Lankan authorities have an adverse interest in the applicant; that there is a real risk that the authorities will detain or question him beyond routine checks; or that there is a real risk that his mother, brothers or others will be unable to raise bail for him. In these circumstances, the Tribunal is not satisfied that there is a real risk that the Sri Lankan authorities will torture the applicant, or inflict cruel or inhumane, or degrading treatment on him, during the course of his detention. The Tribunal is also not satisfied that the Sri Lankan authorities have any reason to ‘extract confessions’ from the applicant, or to apply torture in the process of trying to get such information.  

147.   Second, in relation to the overcrowded and unsanitary conditions that the applicant will likely experience while in detention, the representative submitted that this gives rise to a real risk lf ‘cruel or inhuman or degrading treatment’. Again, she linked these with the duration of the applicant’s detention, which the Tribunal considers will be short. In addition, the Tribunal is not satisfied that poor prison conditions are the result of Sri Lankan officials’ acts or omissions that are intended to cause severe pain or suffering, of a kind that amounts to torture, or cruel or inhuman treatment or punishment; or extreme and unreasonable humiliation that amounts to degrading treatment or punishment. Rather, country information indicates that poor conditions arise from the Sri Lankan authorities’ limited resources.[32]

[32] May 2018 DFAT report, para 5.18; November 2019 DFAT report, para 5.2/

148.   Third, the Tribunal does not accept that the applicant’s detention and ancillary processes involve the death penalty or arbitrary loss of life.

149.   Fourth, the Tribunal does not accept that the imposition of a fine as punishment for the applicant’s illegal departure, or any processes associated with the grant of bail or any court proceedings (such as payment of bail, the appearance of a family member at the court, requirements to attend court at regular intervals, etc.), amount to significant harm.

150.   Finally, the Tribunal does not accept that there is a real risk that the applicant will face harm that amounts to significant harm, on the basis of his circumstances as a whole[33] – including as a Tamil male; as a Hindu and former promoter/organiser for the local temple, as a former or future resident of Mullaitivu; as a failed asylum seeker; as a person who departed Sri Lanka illegally; or on the basis of any other factors - give risk to a real risk of him being subject to serious harm.

[33] The Tribunal excludes those claims, such as the Christians’ allegations that the applicant is a former LTTE cadre, which it has rejected.

151.   For the above reasons, the Tribunal is not satisfied that the applicant’s circumstances give rise to a real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. 

152. Accordingly, the Tribunal is 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, there is a real risk that he will suffer significant harm: s.36(2)(aa).

Overall conclusion

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

154. 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).

155. 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

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

James Silva
Member

ATTACHMENT: RELEVANT LAW

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

Refugee criterion

Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

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

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

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

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

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

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

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

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

Complementary protection criterion

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

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

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

Section 499 Ministerial Direction

In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal is required to take account of Refugee and humanitarian - Complementary Protection Guidelines and Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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.