1830100 (Refugee)

1830100 (Refugee) [2019] AATA 5961 (23 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1830100
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:David McCulloch
DATE:23 July 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 July 2019 at 9:28am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Court remittal – no appearance by applicant at hearing – race – Tamil – imputed political opinion – perceived sympathiser/supporter of the Liberation Tigers of Tamil Eelam (LTTE) – particular social group – failed asylum seeker – integration issues – credibility concerns – weekly report to army camp – physical harm during fishing activities – treated roughly and verbally abused – issuance of fishing licenses – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
MIEA v Guo (1997) 191 CLR 559
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 3 January 2013 and the delegate refused to grant the visa on 10 December 2013.
The matter has previously been considered by the Tribunal and remitted to the Tribunal to re-determine according to law on the basis of a judgment by the Federal Court.
The Federal Court remitted the matter for two reasons. Firstly, the Court found that the Tribunal had only considered the 2012 DFAT Report on Sri Lanka, and failed to refer to the 2015 DFAT Report which included updated information on the treatment of returned asylum seekers. Secondly, the Court found that the Tribunal failed to consider evidence submitted by the applicant from the Edmund Rice Centre regarding the treatment of returned asylum seekers, which contradicted the 2012 DFAT Report.
The Tribunal wrote to the applicant on 15 October 2018 indicating that the matter had been returned to the Tribunal and, among the next steps that would occur, the matter would be reallocated to a Member of the Tribunal and the applicant may be invited to attend a Tribunal hearing. The applicant’s registered migration agent sent an email to the Tribunal on 3 November 2018 indicating that they had contacted the applicant who indicated that he did not wish to attend the hearing.
However, in order to afford the applicant full procedural fairness the Tribunal scheduled a hearing on 19 July 2019. The hearing invitation was sent to the address nominated by the applicant, his registered migration agent. The migration agent had advised the Tribunal that they were no longer acting for the applicant. However, as the applicant had not advised the Tribunal of this change, including in terms of contact details, the contact details of the migration agent remained the legal contact details that had been provided by the applicant. The Tribunal wrote to the applicant providing the form for him to complete advising as to new contact details. No completed form was ever forwarded to the Tribunal. As a consequence, the Tribunal also caused the invitation to the Tribunal hearing to be sent to two physical addresses for the applicant that had previously been indicated on Tribunal and Government systems.
The applicant did not appear at the Tribunal at the time and place scheduled for the hearing on 19 July 2019. On the basis that the applicant had previously responded indicating that he did not wish to attend a hearing, the Tribunal proceeds to make a decision on the material before the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
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’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it DFAT Country Report – Sri Lanka, 23 May 2018.
The issue in this case is the credibility of the applicant and whether, on accepted claims, he fulfils the criteria for protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background, claims and submissions
The applicant arrived illegally on [excised territory] [in] July 2012 on a boat [codenamed]. The applicant subsequently applied for a protection visa. The applicant has been in Australia since.
The applicant had an interview with the Ministerial delegate on 13 September 2013. The applicant’s representatives provided oral and written submissions on the same date (folios 67–81 of Departmental file). The applicant was denied a protection visa on 10 December 2013. The applicant subsequently applied for review by the Tribunal. The applicant appeared before the Tribunal on 9 June 2015, and the applicant’s representatives provided submissions on 5 June 2015 (folios 51–54). The Tribunal affirmed the Department of Immigration and Border Protection’s (the Department) decision on 18 February 2016. The applicant applied for review by the Federal Circuit Court on 10 March 2016. The matter was dismissed [in] March 2018. The applicant subsequently applied for review by the Federal Court. The Federal Court remitted the matter to the Tribunal on 27 September 2018.
The following information is apparent from the application forms for the protection visa. The applicant was born on [date] in [Village], Jaffna, in the Northern Province of Sri Lanka. The applicant is a Hindu of Tamil ethnicity, and speaks, reads, and writes Tamil. The applicant completed Year [level] in 1992, and worked as a fisherman with his father from 1993 to 1996. The applicant then worked independently as a fisherman until 2012. The applicant also worked as a [Occupation 1] in Jaffna from 2010 to 2012. The applicant married [in] December 1999. The applicant’s wife and [number of] daughters live in Sri Lanka, as do the applicant’s mother, father, and [number of] brothers. The applicant states that he had another brother and a sister, both of whom are deceased. The applicant lived in [Village], Jaffna, from 1981 to 1990, then in Vanni from 1990 to 1996.[1] The applicant lived in [Town 1] from 1996 to 2012. The applicant was in custody on Christmas Island. The applicant is currently unemployed.
[1] This is inconsistent with other evidence provided by the applicant – see further in this decision.
The applicant provided a Statutory Declaration setting out his claims as follows (not corrected for spelling or grammar):
Summary of my claims
Set out below are my claims for protection and I look forward discussing same in further details.
Introduction - Citizenship
I am a Sri Lankan citizen by birth of Tamil ethnicity and my religion is Hindu. I have no other citizenships and I am not entitled to a citizenship nor have I right to residence in any other country.
I was born on [date] in a village named [Village] of the Jafflia district in the Northern Province of Sri Lanka
I have [number of siblings] also born in [Village] as was my mother but my father was born in [Town 1].
In 1990, my brother [Brother A] was killed from shrapnel of a shell fired by the SLA and in 2001, my sister [Sister B] passed away from natural causes.
We were displaced to [Town 1] in 1990 and to this day, I haven't been allowed to return to my birth place.
I completed year [level] in 1992 in [Town 1] and started work as a Fisherman with my dad until 1996. I then went to work by myself also as a Fisherman and did so until July 2012 during this time, I was also employed by 'a company called [Company 1], this company use to send me to [location] to [undertake specified work] but this was not continuous work.
My wife and I were married in 1999, she is a distant cousin and we now have [number of] daughters.
The country to which I fear returning
Sri Lanka.
Why I left that country
We were displaced to Vani in March 2006 and returned to the village in June 2006. When we did return, the army questioned me if I had been with the LTTE and if I had received any training, I told them I hadn't and they told me I could go but to make myself available whenever they need me.
From 2006 to 2009, I had no problem until I went fishing and each time ee were going fishing, I needed to give my ID and a permit was issued.
I can't recall the month but in 2009, the navy kept my ID and told me to report to a camp in [Town 2] and my ID will be returned, I did, my ID was returned to me and I was ordered to sign the register each Sunday, they told me I was suspected to be an LTTE member and I was not to leave the country.
I was terrified having been told to report^/ each Sunday because most of the people I know who reported like this were eventually shot or disappeared. I continued working and reporting for 3 years like this, each day wondering when will I be kidnapped or shot and by July 2012, I decided to leave Sri Lanka and I departed [in] July 2012.
I speak with my wife often and she tells that the army have been to my home twice looking for me.
What I fear may happen to me in Sri Lanka
I fear I will be killed if I returned to Sri Lanka.
I fear I will be arrested and detained if I return to Sri Lanka.
I fear my movements will continue to be restricted should I return to Sri Lanka.
Who I think may harm/mistreat me in Sri Lanka and why.
I fear the authorities will harm me if I was to return to Sri Lanka because they suspect me to be an LTTE sympathiser and my escape from this country will reinforce this suspicion in their mind.
AND
I fear the authorities will harm me because I departed Sri Lanka unlawfully and I am a Tamil from the Northern Province.
Do I think the authorities of that country can and will protect me and or accompanying family members, where applicable, if I / we were to go back
No, they are the ones I fear.
Do I think that there is a place in that country where I could hbe safe.
No, wherever I go in Sri Lanka I will still be a Tamil from the North and as such, permission to permanently settle elsewhere may very well be denied.
The Tribunal notes the following evidence given by the applicant in the interview with the delegate which took place on 13 September 2013. The applicant indicated that he was born in [Village] but was displaced in 1990 and went to live in [Town 1]. The applicant got married in [Town 1]. The applicant was displaced from [Town 1] to Vanni for three months in the first half of 2006. On return to [Town 1] the applicant was questioned by the army who suspected him of having belonged to the Liberation Tigers of Tamil Eelam (LTTE) because he had travelled to Vanni. However, the applicant had no further difficulties from authorities for the remainder of 2006, 2007 or 2008. In 2009, however, problems for the applicant started. He was told at this point in time that he would have to attend an army camp every week to sign in at 10am on a Sunday morning. The applicant indicated that he attended this army camp to check-in every Sunday, without exception, from this point on until his departure to Australia in July 2012.
The applicant indicated that on two occasions since he left for Australia, military officials have visited the applicant’s family home looking for the applicant.
The applicant said that other individuals he knew were also made to report to the army camp in this manner. The applicant indicated that he would often be made to wait at the army camp from 10am until later in the afternoon to sign in. He indicated that, depending on the mood of the army soldiers and whether they had been drinking, that they would, on occasion, physically harm the applicant as well as make derogatory racial comments. The applicant indicated that he would have been hit by soldiers on between 10 and 15 occasions over the course of his visits.
The applicant confirmed in the interview that he reported weekly on Sundays without exception for approximately three years, and never missed a Sunday reporting. The applicant indicates that he was made to report because of suspicion of him being involved with the LTTE because he spent three months in Vanni in 2006. It appears that at this point in time, Vanni was under the occupation of the LTTE.
The applicant claimed that he was told not to leave the country, but did so. If he returns authorities will now believe that he was involved with the LTTE and he will be harmed as a result. He will be killed, kidnapped or taken to intelligence headquarters in Colombo.
In relation to difficulties in work as a fisherman, the applicant indicated that on his return from Vanni there were occasions where military officials would physically assault fisherman, including the applicant. There were also restrictions as to where fishing could occur and the times that fishing was allowed.
The applicant’s migration agent made oral submissions in the interview. These included submissions that the applicant might not be granted bail in relation to criminal charges for leaving Sri Lanka unlawfully because he had been previously told by the army not to leave the country but that he had left the country. Submissions were made of the risk to the applicant on return to Sri Lanka based on being a young Tamil male from the north. It is submitted that there is a fine line between the applicant’s reporting requirements to an army over several years and him being positively perceived to have been involved with the LTTE.
The applicant’s migration agent provided the following written submission to the Department dated 13 September 2013. The submission summarises the factual claims made by the applicant. It submits that he faces persecution on the basis of his ethnicity as a Tamil, his actual/imputed political opinion as being a perceived sympathiser/supporter of the LTTE or someone seen to hold Tamil separatist views supporting hostilities against authorities, and his membership of a particular social group of failed asylum seekers.
Reference is made to independent information which is cited as supporting the position that there is a risk of persecution for individuals suspected of even the slightest support of, or connection to, the LTTE and its aims. Reference is made to the persecution of Tamils by authorities. Reference is made to authorities seeking to quell any re-emergence of the LTTE. Reference is made to militarisation and Sinhalisation of the North. There is reference to human rights abuses by Sri Lankan authorities. Reference is made to broad detention powers by authorities. Relevant is the fact that the applicant is from the North which is relevant to the overall risk he faces on return to Sri Lankan. Reference is made to Tamils suffering long-standing systemic discrimination.
Reference is made to information supporting claims that Tamil fishermen in the North have become victims of severe and discriminatory restrictions imposed by the navy resulting in a serious threat to the applicant’s capacity to earn a livelihood and subsist. Reference is made to Tamils experiencing challenges in having fishing licenses renewed but with licenses being granted to Sinhalese fishermen.
It is submitted that the applicant will be suspected of LTTE connections by virtue of having sought asylum in the West with independent information being referred to as supporting this. Reference is made to reports of failed asylum seekers facing persecution on return to Sri Lanka, including information relating to the arbitrary arrest and torture of returnees from the United Kingdom. It is submitted that the applicant would be subject to more than just peremptory screening on his return to Sri Lanka and is at a risk of detention and torture on return as a Tamil asylum seeker who has a perceived association with the LTTE (irrespective of level). Reference is made to the risk of adverse attention from authorities after having left the airport.
Submissions are made with respect to the complementary protection criterion. Reference is made to the applicant being charged with having left Sri Lankan unlawfully and being remanded in detention. It is submitted that information relating to the treatment of prisoners or those in police custody indicate that such individuals would be subject to a real risk of harm that amounts to significant harm. Reference is made to reports of torture, cruel and degrading punishment or treatment faced by those in police custody or in prisons. Reference is made to poor prison conditions.
Submissions are made that the applicant would also be at risk after returning to his place of origin. Reference is made to a risk of abduction and extortion by armed groups. Returnees are treated with suspicion and are seen as traitors.
A further undated submission was provided by the applicant’s migration agent. Reference is made to a 2013 DFAT report being inaccurate in terms of claiming that the current experience is that imprisonment for charges of leaving Sri Lanka unlawfully are uncommon and that fines of the maximum are unusual. It is submitted that there is little publicly available information regarding sentencing outcomes since November 2012. It is submitted that Sri Lankan judges do not have a discretion not to impose a term of imprisonment, only that they may impose a suspended sentence. Reference is made to the importance that Sri Lankan authorities have placed on deterring those who leave the country unlawfully.

It is submitted that there will likely be abuse or mistreatment, significant harm, even if detention is for a short period. Reports are provided of mistreatment in Sri Lankan prisons.
The Tribunal notes the following relevant evidence provided by the applicant in the first Tribunal hearing which took place on 9 June 2015. This led to the Tribunal decision which has been remitted by the courts. The applicant refers to moving from his birthplace to [Town 1] in 1990. [Town 1] is where his father is from. The applicant referred to employment, in addition to being a fisherman, as loading and unloading ships.
The applicant indicated that the family relocated to Vanni in 2006 because the LTTE announced that the conflict would affect them and that they therefore went to Vanni for 10 days. The Tribunal sought to confirm with the applicant that he was only in Vanni for 10 days and he confirmed that was the case. The applicant indicated that living in Vanni was very expensive and difficult causing the applicant and his family to decide to return to [Town 1].
The applicant indicated that on return to [Town 1] in 2006 he was questioned by authorities because the LTTE had been recruiting people for training in Vanni. The applicant said that he told the truth that he had not been trained by the LTTE including because he had [number of] young children. The applicant indicated that the army said that if they have doubts in relation to this and they call him, he must come.
The applicant confirmed that there was no difficulty in this respect until 2009, when he was told that he would have to report at an army camp every Sunday. He reported continuously from 2009 until he left Sri Lanka in 2012. The applicant indicated that on these various army camp visits he was beaten on between 10 and 15 occasions. The applicant indicated that he was made to report because he had travelled to Vanni in 2006 causing suspicions of LTTE involvement.
The Tribunal noted to the applicant the fact that country information indicated the arrest and detention at the end of the civil conflict of those suspected of involvement in the LTTE. The fact that the applicant was not arrested and detained could indicate that he was not suspected by authorities of any involvement in the LTTE. The applicant referred to a profound fear of something happening to him. The Tribunal also referred to its difficulty in understanding why the applicant would have been made to continuously report for this length of time. The Tribunal noted to the applicant that independent information indicated that most of those suspected to have been involved in the LTTE had been detained, rehabilitated and released by 2012. The Tribunal noted that according to UNHCR there are only 200 individuals suspected of LTTE involvement still being detained in 2012. The applicant maintained that he was required to report continuously as claimed.
The applicant referred to being beaten by the navy at sea and the army on land during his work as a fisherman. This occurred both before and after the civil conflict. Harm was inflicted by the navy because of breaching territorial fishing restrictions. The applicant referred to being required, including after the conflict ended, to obtain a daily fishing pass from the navy to be allowed to fish. When the Tribunal put to the applicant that independent information indicated that the navy were no longer responsible for issuing fishing passes following the end of the conflict, the applicant indicated that, in practice, the navy is still control fishing.
The Tribunal asked the applicant why he had made no indication in his entry interview on first arriving in Australia when asked as to harm suffered in Sri Lanka as to mistreatment by the army/navy as part of his fishing activities. In response, the applicant indicated that he was so happy to have arrived in Australia that he did not tell everything in his first interview.
The applicant indicated to the Tribunal that on two occasions since he left for Australia, military officials have visited his family asking as to the whereabouts of the applicant. The applicant indicated that his family indicated to the officials that the applicant has gone to Colombo.
The Tribunal discussed with the applicant his risk of harm and meeting protection criteria as a result of his return to Sri Lanka, being a failed asylum seeker and being charged for having left Sri Lanka unlawfully. The applicant maintained that he would suffer harm in these respects. However, the applicant indicated that having money and paying a fine for having left Sri Lanka unlawfully is not a difficulty for him.
Independent information sourced by Tribunal
DFAT Country Report – Sri Lanka, 23 May 2018 provides variously as follows (portions particularly relevant to this matter underlined by the Tribunal):
RACE/NATIONALITY
Sri Lanka is a party to the International Convention on the Elimination of All Forms of Racial Discrimination. The Sri Lankan Constitution provides that ‘no citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such grounds’. The ethnic dimensions of the civil conflict, and Sri Lanka’s previous discriminatory language policy, the 1956 Official Language Act (also referred to as the ‘Sinhala Only Act’) which listed Sinhala as the only official language, have shaped ethnicity and language as sensitive issues in Sri Lanka. An amendment to the Constitution in 1987 recognised Tamil as the second official language. In 2012, the Trilingual Policy gave Sri Lankans the right to communicate in Sinhala, Tamil or English throughout Sri Lanka. Under this policy, all civil servants employed after 1 July 2007 must be proficient in both official languages within five years of employment in order to receive annual salary increments. Ethnicity and language are fundamental considerations in the reconciliation process.
Most Sri Lankans tend to live within their own ethnic communities, although different ethnic groups live within close proximity in major urban areas. Colombo has roughly equal populations of Sinhalese, Tamils and Muslims. This is the outcome of Tamils and Muslims moving from other parts of the country to access greater economic opportunities in Colombo, and internal relocation due to the conflict. Tamils comprise most of the population of the Northern Province, and the isolation of the region during the conflict has left it less ethnically diverse.
DFAT assesses that Sri Lankans of all backgrounds face a low risk of official or societal discrimination based on ethnicity, including in relation to access to education, employment or housing.
Tamils
Tamils are the second largest ethnic group in Sri Lanka. According to the most recent census, the Tamil population was 3.1 million in 2012, compared to 2.7 million in 1981. Tamils live throughout Sri Lanka, concentrating in the Northern Province, where they comprise 93 per cent of the population, and the Eastern Province, where they comprise 39 per cent of the population.
Tamils have a substantial level of political influence and their inclusion in political dialogue has increased since the change of government in 2015. Tamil political parties are numerous, with the largest coalition of parties operating under the umbrella of the TNA. The Tamil Makkal Viduthalai Pulikal (formerly known as the Karuna Group) contested and won some seats in the February 2018 local government elections. The TNA’s vote share dropped with a noticeable swing towards more hard-line Tamil groups in the local elections. Tamils faced less harassment during the 2015 presidential and parliamentary elections than in the 2010 elections. DFAT understands Tamils do not receive unwarranted attention from authorities because of their political involvement, including with the TNA. DFAT assesses there are no barriers to Tamil political participation.
Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs. Even the Tamil-dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil-speaking police officers and military in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities.
DFAT assesses that there is no official discrimination on the basis of ethnicity in public sector employment. Rather, limited Tamil appointments are a result of a number of factors, including disrupted education because of the conflict and language constraints.
Monitoring, harassment, arrest and detention
Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested or detained by security forces during the conflict. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner (see Political Opinion (Actual or imputed)).
Members of the Tamil community in the north and east continue to claim that authorities monitor public gatherings and protests, and practise targeted surveillance and questioning of individuals and groups. In the north, security forces are more likely to monitor people associated with politically sensitive issues, including missing persons, land release and memorial events (see Civil society organisations and government critics and Media). Police increased their presence following a rise of criminal activity and violent attacks that authorities attributed to the Avaa group (alleged to comprise former LTTE members recruited by military intelligence) in Jaffna and other parts of the Northern Province in 2016 and 2017. One measure was the establishment of security checkpoints on the A9 highway (the major road into Jaffna from the south) in November 2017, where authorities stopped private and public vehicles and searched luggage.
Communities in both the north and east report that monitoring is undertaken by military intelligence and the Police Criminal Investigation Department, though in many cases officers dress in plain clothes and do not identify themselves. Some members of the Tamil community reported they felt more empowered to question monitoring activities. In the east, local informants within the community (including neighbours and business owners) reportedly undertook monitoring on behalf of the authorities. Intelligence agencies also monitor links to foreign groups, including some in the Tamil diaspora.
DFAT assesses that, while monitoring of Tamils in day-to-day life has decreased significantly under the current government, surveillance of Tamils in the north and east continues, particularly those associated with politically sensitive issues.
During the conflict, authorities detained more Tamils under the Prevention of Terrorism Act (1978) (PTA) than any other ethnic group. Since 2015, the government has reviewed some cases of persons still detained under the PTA and released some detainees, mostly Tamils (see Arbitrary Arrest and Detention). The PTA is currently suspended but remains legally in force.[2]
[2] DFAT Country Report – Sri Lanka, 23 May 2018, paras 3.1-3.12
…
POLITICAL OPINION (ACTUAL OR IMPUTED)
Sri Lanka has regularly held democratic elections since independence. Large-scale violence and vote rigging have never been features of elections, but nor have they always been described as entirely free and fair. The Commonwealth Observer Group said the most recent (2015) national elections were ‘credible, met the key criteria for democratic elections, and the outcome reflected the will of the people’.
Political representation of minorities, including ethnic and religious minorities
No constitutional, legal or other restrictions bar minorities from participating in politics. Sri Lanka has a diverse political landscape, with 70 registered political parties representing ethnic, religious or ideological interests. Political representation in parliament is broadly proportional to the overall population. The current parliament includes 29 Tamils and 21 Muslims among its 225 members. President Sirisena presides over a diverse coalition of more than a dozen political parties, which are comprised predominantly of Sinhalese Buddhists but also include Muslim and Tamil members.
Sri Lanka has no banned political parties and all parties operate freely within the same legal framework. DFAT is not aware of any evidence to suggest that Sinhalese, Tamil, Muslim or other parties face any differences in treatment. The PTA restricts certain actions by political parties or groups. Specifically, any person who ‘causes or intends to cause commission of acts of violence or religious, racial or communal disharmony’ can face a maximum of five years’ imprisonment.
DFAT assesses that no laws or official policies discriminate on the basis of political opinion, nor is there systemic political discrimination against any particular group.
Liberation Tigers of Tamil Eelam (LTTE)
At its peak in 2004, the LTTE had an armed force of approximately 18,000 combatants. The LTTE had an intelligence wing, a political wing and an extensive administrative structure based in its de-facto capital in Kilinochchi in northeast Sri Lanka. The majority-Tamil civilian populations of the areas controlled by the LTTE were required to interact with the LTTE as a matter of course. The LTTE was supported by foreign funding and both voluntary and forced recruitment of Tamils.
Towards the end of the conflict, government security forces arrested and detained a large number of LTTE members. Most were sent to government-run rehabilitation centres. A smaller number were prosecuted through Sri Lanka’s court system. Security forces also questioned or monitored many civilians for possible LTTE activity, and for civil resistance or anti-government sentiment. Although not officially mandated, in many areas the military took a visible and active role in civilian life. Since 2015, the government has publicly committed to reducing military involvement in civilian activities.
Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country. According to expert testimony provided to a hearing of the UK’s Upper Tribunal on Immigration and Asylum, Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases. ‘Stop’ lists include names of those individuals who have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals whom the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities. The UK Home Office reported that the ‘watch list’ comprised minor offenders and former LTTE cadres. DFAT assesses those on a watch list are likely to be monitored.
Former LTTE members face no legal barriers to participating in public life, including politics. In the August 2015 parliamentary elections, the TNA did not allow ex-LTTE members to run on their ticket, but ex-combatants established the Crusaders for Democracy group and ran for election. While they did not win any seats, their participation demonstrated the openness of the electoral process.
DFAT assesses that the LTTE no longer exists as an organised force in Sri Lanka. Any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans, including those returning from abroad. The government has demonstrated a commitment to easing restrictions: in November 2015, it reviewed its United Nations Security Council Resolution 1373 list and removed eight Tamil diaspora organisations and 269 individuals from its terrorist list.
Some members of the LTTE (and the Sri Lankan forces) may be ineligible for international refugee protection because of involvement in war crimes and serious violations of human rights committed during the conflict. Such crimes include: abductions and enforced disappearances; indiscriminate attacks on civilians; forced displacement; torture and other cruel, inhuman and degrading treatment; murder, including political assassination; mass killings; extrajudicial and summary executions; rape; and forced recruitment for the commission of attacks and/or military service and/or labour, including recruitment (sometimes through abduction) of children.
Rehabilitation
Since the end of the civil conflict, the Sri Lankan government has managed a large-scale rehabilitation process for former LTTE. The government established 24 rehabilitation centres in the Northern, Eastern and Western Provinces for approximately 12,000 former LTTE members who surrendered in 2009. The Bureau of the Commissioner General of Rehabilitation used a ‘three pronged approach’ to manage the arrested LTTE members: those to be investigated and prosecuted under normal court of law; those to be rehabilitated; and those to be released upon confirmation by intelligence agencies of their peripheral involvement in the conflict. LTTE members undergo two forms of profiling: psychosocial, including an assessment of their level of radicalisation; and socioeconomic, including education, professional skills and vocational interests. Personal files assess the progress of former LTTE in terms of rehabilitation and de-radicalisation. Rehabilitation is typically a one-year program, extended to up to two years for those considered to be highly radicalised. The first six months of the program focuses on ‘rehabilitation of the mental and physical state’, including education, spiritual, religious and cultural training and sports, and the last six months is dedicated to vocational training.
Although the activities undertaken in the rehabilitation centres vary, vocational training for men includes welding, masonry, plumbing, driving, tailoring, wiring, language, computer skills and vegetable cultivation. Women receive training in cookery, beauty therapy, tailoring, language and computer skills. Former child soldiers are able to complete their education. While many of those who have completed rehabilitation have reported difficulty finding regular employment following their release, others have said the vocational skills gained during rehabilitation made them more employable. The unemployment rate among rehabilitated former LTTE members, particularly women, is reportedly higher than the national average but this may reflect factors such as the weaker economic conditions in the north and east, conflict-related disabilities, and a reluctance to hire known former LTTE members. The 2018 budget allocated LKR 25 million (approximately AUD 209,000) for rehabilitated ex-combatants in the north and east to attain National Vocational Qualifications.
According to the Bureau of the Commissioner General of Rehabilitation, by November 2017, 12,882 people, primarily former LTTE, had completed rehabilitation. Only one centre with eight inmates remained open in Vavuniya in December 2017. In 2016, Vavuniya inmates reported conditions were significantly better than in prison. Other centres have redeployed for drug rehabilitation.
The rehabilitation program is expected to conclude once the last intake has completed the one-year program. The government estimates 5,000 undisclosed ex-combatants remain in the community. Ex-combatants are reluctant to identify as such for fear of rehabilitation or prosecution. A Sri Lankan official told DFAT that former LTTE members who are not already rehabilitated are unlikely to be rehabilitated now. Extension of the program would create an obligation for the government to support the families of new inmates while they undergo rehabilitation. DFAT is not aware of rehabilitation being imposed on any former LTTE members who have returned from Australia.
Although no formal parole arrangements apply, former LTTE members are required to register with the Civil Affairs Office of their local military unit and may be subject to monitoring, the level of which would depend on the degree of their assessed LTTE involvement. Most individuals released from rehabilitation centres have returned to their places of origin upon release and, like all other citizens, are required to register with a local grama niladhari (village officer) to receive financial and other support for repatriation and access to public services. Some international and domestic NGOs also provide post-release support. DFAT understands that no travel restrictions apply to rehabilitated former LTTE members, who may obtain a passport. Some may limit their own travel to avoid telling authorities of their movements.
DFAT is aware of reports that more than 150 former LTTE members died of cancer after being in rehabilitation camps. Some Tamil political leaders, including Northern Province Chief Minister Wigneswaran, raised allegations in 2015 and 2016 that former LTTE members received poisonous injections during rehabilitation resulting in fevers, heart disease and cancer. The Northern Provincial Council directed its health ministry to investigate over 200 allegations and concluded there was no evidence of injections.
The government has used the rehabilitation process to screen and profile LTTE members through interviews, informants and other relevant information to assess individuals’ depth of involvement, period of involvement and activities. Security forces can use such information to categorise individuals and potentially to determine whom to prosecute for terrorism or other offences. DFAT is not aware of specific cases where this has occurred.
Imputed membership of the Liberation Tigers of Tamil Eelam (LTTE)
In 2012, UNHCR identified a range of people with real or perceived links to the LTTE:
·     persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the Northern and Eastern provinces of Sri Lanka;
·     former LTTE combatants or ‘cadres’;
·     former LTTE combatants or ‘cadres’ who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, ‘computer branch’ or media (newspaper and radio);
·     former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;
·     LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE; and
·     persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.
Some Tamils with imputed LTTE links reported police monitoring and harassment in 2016. The UK Home Office assessed in 2017 that anyone actively promoting Tamil separatism could risk persecution.
High profile former LTTE members
The LTTE’s former leadership face the highest risk of monitoring, arrest, detention or prosecution, regardless of whether they performed a combat or civilian role during the conflict. Although most of the LTTE’s leadership died during the conflict, a number surrendered or were captured and sent to rehabilitation centres or prosecuted. Some former leaders may have left Sri Lanka before, during or after the conflict (see Former LTTE members living outside Sri Lanka). Others considered ‘high profile’ include former members suspected of terrorist or serious criminal offences during the conflict, or of providing weapons or explosives to the LTTE.
On 11 April 2014, following the alleged posting of pro-LTTE flyers in Kilinochchi, the military killed three suspected LTTE members in Vavuniya district. DFAT is not aware of any similar cases since 2014.
DFAT assesses that the number of high profile former LTTE members living in Sri Lanka is small and the vast majority would already have come to the attention of the authorities. DFAT further assesses that any remaining high profile former members who came to the attention of Sri Lankan authorities would likely be arrested, detained and prosecuted through Sri Lanka’s criminal courts. Following their release from prison, high profile former LTTE members would likely continue to be monitored by Sri Lankan authorities.
Low profile former LTTE members
‘Low profile’ former LTTE members include former combatants, those employed in administrative or other roles and those who may have provided a high level of non-military support to the LTTE during the conflict. DFAT assesses that, although the great majority of low profile former members have already been released following their rehabilitation, any other low profile LTTE members who came to the attention of Sri Lankan authorities would be detained and may be sent to the remaining rehabilitation centre. Following their release from rehabilitation, low profile former LTTE members may be monitored but generally are not prosecuted.
Former LTTE members living outside Sri Lanka
At least one million Sri Lankan Tamils live outside Sri Lanka, mostly in Canada, Europe, Australia, Malaysia, and the Indian state of Tamil Nadu. Members of the Sri Lankan Tamil diaspora may be citizens or legal residents of those countries, or dual nationals. Some members of the Tamil diaspora return to Sri Lanka to visit family members, for holidays and for business. Remittances from the Tamil diaspora continue to provide an important source of income for family and community members in Sri Lanka.
Some members of the Tamil diaspora played a central role during the conflict, as a source of funding, weapons and other material support for the LTTE, and as political advocates for a separate Tamil state in Sri Lanka. Many countries designated the LTTE as a terrorist organisation after September 2001, which made it more difficult to raise funds from Tamil diaspora communities.
Some Tamil diaspora groups continue to hold public demonstrations in their countries of residence to support a separate Tamil state in Sri Lanka. High profile leaders of pro-LTTE diaspora groups may come to the attention of Sri Lankan authorities because of their participation in such demonstrations.
A large number of Sri Lankan Tamil refugees live in camps in Tamil Nadu; in September 2017, the population of these camps was 62,209 (see Returnees from Tamil Nadu). Of this number, 20 people reside in a ‘special camp’ in Tiruchirappalli, Tamil Nadu, managed by the Tamil Nadu Prisons Department. DFAT cannot verify the profile of the Tiruchirappalli camp population, but understands this camp houses former LTTE members. After the end of the conflict, the camp population has included Sri Lankan Tamils travelling without valid identity documentation and other foreigners arrested under the provisions of India’s Foreigners Act (1946). DFAT understands that, unlike other refugee camps in Tamil Nadu, special camp inhabitants are not permitted to leave, and they may not be eligible for benefits that other Sri Lankan Tamil refugees receive.
The government has publicly encouraged all Sri Lankans living overseas to return or invest in the Sri Lankan economy. DFAT assesses Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their risk profile.
Family members of LTTE
The Sri Lankan government acknowledges that ex-combatants and their families may continue to face discrimination both within their community and from government officials. The TNA and the Tamil Civil Society Forum reported in 2016 that authorities continued to follow and monitor former LTTE cadres and their families. DFAT cannot verify claims that people have been arrested and detained because of their family connections with former LTTE members, but understands that close relatives of high profile former LTTE members who are wanted by Sri Lankan authorities may be subject to monitoring.
Arrest, Detention and Prosecution
Under Regulation 22 of Sri Lanka’s Emergency Regulations (2005) (repealed in 2011), administrative detention in rehabilitation centres or elsewhere was possible for up to two years without judicial review or access to legal representation. Under the PTA, which is currently suspended but still in legal force, authorities can hold suspects without charge for extendable three-month periods, not exceeding a total of 18 months, though some persons have been held for more than 10 years. In addition to those arrested under the PTA, some former LTTE members have faced other criminal charges.
Modest numbers of former LTTE members continue to be detained and prosecuted within Sri Lanka’s criminal justice system. In November 2015, then Justice Minister Wijeyadasa Rajapakshe publicly reported that 204 suspected LTTE cadres (including around 50 in rehabilitation centres) remained in government custody, 56 had been convicted, and trials were in process for 124. DFAT is unable to verify independently the number of former LTTE members in places of detention other than rehabilitation centres.
The Attorney-General may seek a person’s admission to a rehabilitation program, a prison sentence, or dismissal of a case. Case dismissals have been rare, and recommendations for rehabilitation alone have applied only to low profile detainees. Some high profile detainees have received prison sentences following their release from rehabilitation centres.
DFAT has no information on conviction rates for LTTE members, but the lower standards required for cases brought under the PTA suggests the potential for a higher rate of conviction.
Societal discrimination
Most former LTTE members released from rehabilitation have been accepted back into their communities in the north and east, despite some suspicion that they may act as informants for Sri Lankan authorities. Tamil populations in these areas understand that many people were forced to participate in LTTE activities, and DFAT assesses that societal discrimination against low profile LTTE members is low, although some have faced difficulty finding employment, as some potential employers are concerned about increased police and military attention (see Rehabilitation). Societal discrimination against former LTTE members is also related to caste, as the majority of former LTTE members are lower caste.
Local NGOs report that female former LTTE members face additional difficulties, including the risk of sexual harassment and stigmatisation within the community, and difficulties finding a marriage partner or securing employment. DFAT has been unable to verify these claims. Women who were forcibly recruited are more likely to be accepted back into their communities than LTTE volunteers.
DFAT assesses that members of the LTTE suspected of serious human rights violations against Tamils face a moderate risk of societal discrimination. This includes those believed to be responsible for forced recruitment, particularly of children, or those suspected of torture or other mistreatment of Tamil civilians.
Scarring
DFAT is aware of reports that people with conflict-related scarring are more likely to attract adverse attention from the Sri Lankan authorities. Freedom from Torture’s 2011 report ‘Out of the Silence’ documents an unidentified number of people detained by Sri Lankan authorities in April or May 2009, because their scarring was deemed evidence of LTTE membership. The cases raised in the report date from the immediate end of the conflict and DFAT is unaware of more recent evidence of people being detained because of scarring. DFAT is aware of the conclusions of the UK Court of Appeal in 2017 of self-inflicted scarring in the case of an asylum claimant who alleged torture because of his previous links to the LTTE.[3]
[3] DFAT Country Report – Sri Lanka, 23 May 2018, paras 3.31-3.67
…
TREATMENT OF RETURNEES
Exit and Entry Procedures
Sri Lanka’s Constitution entitles any citizen to ‘the freedom to return to Sri Lanka’. The Immigrants and Emigrants Act (1949) (the I&E Act) governs exit and entry from Sri Lanka. Sections 34 and 45(1) (b) of the I&E Act make it an offence to depart other than via an approved port of departure, such as a seaport or airport. Returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the I&E Act. If a returnee voluntarily returns on their own passport on a commercial flight, they may not come to the attention of local authorities if they had departed Sri Lanka legally through an official port on the same passport.
Different agencies, including the Department of Immigration and Emigration, the State Intelligence Service and the Criminal Investigation Department and, at times, the Terrorism Investigation Department, process returnees, including those on charter flights from Australia. These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Australian officials based in Colombo may meet charter flights carrying voluntary and involuntary returnees. IOM meets assisted voluntary returns after immigration clearance at the airport. Processing of returnees at the airport can take several hours, due to the administrative processes, interview lengths, and staffing constraints at the airport. Returnees are processed in groups, and individuals cannot exit the airport until all returnees have been processed.
For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity, which 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 the person’s claimed hometown police, contacting the person’s 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.
Offences under the Immigrants and Emigrants Act
Most Sri Lankan returnees, including those from Australia, are questioned (usually at the airport) upon return and, where an illegal departure from Sri Lanka is suspected, they can be charged under the I&E Act. DFAT understands the Sri Lankan Police Airport Criminal Investigations Unit at Colombo’s Bandaranaike International Airport makes most arrests. In the process, police will take photographs, fingerprints and statements from returnees, and further enquire about activities while abroad if returnees are former LTTE members. At the earliest available opportunity after investigations are completed, police transport the individual to the closest Magistrate’s Court, after which custody and responsibility for the individual shifts to the courts or prison services. The magistrate then makes a determination as to the next steps for each individual; crew and facilitators or organisers of people smuggling ventures are usually held in custody. Apprehended individuals can remain in police custody at the Criminal Investigation Department’s Airport Office for up to 24 hours after arrival. Should a magistrate not be available before this time – for example, because of a weekend or public holiday – those charged may be detained for up to two days in an airport holding cell.
The Sri Lankan Attorney-General’s Department has directed that all passengers of people smuggling ventures, not only those suspected of facilitating or organising irregular migration, be charged under the I&E Act and appear in court. Those charged are required to appear in court in the location where the offence occurred, which involves legal and transport costs. The frequency of court appearances depend on the magistrate and vary widely, but those charged are required to return to court when their case is being heard, or if summonsed as a witness in a case against the facilitator or organiser of a people smuggling venture. Cases are taken forward in court only when all members of a people smuggling venture have been located, contributing to protracted delays. In November 2017, over 800 separate court cases were pending, with most involving several people. The I&E Act does not specify minimum mandatory sentences.
Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine. In practice, most cases result in a fine and not imprisonment. The Attorney-General’s Department, which is responsible for the conduct of prosecutions, claims no mere passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally. However, fines are issued to deter people from departing illegally in the future. Fine amounts vary from LKR 3,000 (approximately AUD 25) for a first offence to LKR 200,000 (approximately AUD 1,670). 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. Anecdotal evidence suggests that most passengers of people smuggling ventures spend many years on bail, and that most are free to go after paying a fine. DFAT is unable to obtain any data to support this claim.
Bail is usually granted to voluntary returnees. Bail conditions are discretionary, and can involve monthly reporting to police at the returnee’s expense, including for those who have subsequently relocated to other parts of the country. Facilitators and organisers of people smuggling ventures can be charged under section 45C of the I&E Act and are not usually released on bail. According to Sri Lankan Police information as at September 2017, all facilitators, organisers and skippers (captains of boats) convicted under section 45C had received prison sentences of one year. DFAT could not obtain information on the number of persons convicted.
The processes outlined above apply to returnees who travelled illegally to India and then onwards to a third country. Children over 14 can be charged; no bail or fines are imposed for children under 14. The Sri Lankan government claims no returnee from Australia to Sri Lanka has been charged under the PTA. DFAT cannot verify this claim. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure. In October 2012, a court issued warrants for the arrest of a group of returnees for the theft of a vessel used to travel to Australia, for causing of grievous harm to persons, and for people smuggling.
DFAT assesses that the Sri Lankan government differentiates between fare-paying passengers and the facilitators and organisers of irregular migration. It is more likely to pursue those suspected of being facilitators or organisers of people smuggling ventures. DFAT is unable to assess if penalties for multiple illegal departures are higher. DFAT notes that, while the fines issued for passengers of people smuggling ventures are often low, the cumulative costs associated with regular court appearances over protracted lengths of time can be high.
DFAT understands the Sri Lankan parliament is expected to consider new legislation to replace the I&E Act by mid-2018.
Conditions for Returnees
Between 2008 and 2017, over 2,400 Sri Lankan nationals departed Australia for Sri Lanka. This includes nationals who were returned from the Australian community, and those removed from Australian onshore immigration detention centres. Many others returned from the US, Canada, the UK and other European countries, and most returnees are Tamil. Although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin, or because they have existing family links, or because of the relatively lower cost of living compared to the south. Around one quarter of approximately 5,000 IOM-supported voluntary returnees (including failed asylum seekers, irregular migrants and stranded migrants) from 2002 to January 2016 returned to Jaffna.
The government has consistently said that refugees are welcome to return to Sri Lanka, and announced in 2016 the ‘National Policy on Durable Solutions for Conflict-Affected Displacement’. During a visit to Australia in February 2017, Sri Lankan Prime Minister Ranil Wickremesinghe stated publicly that failed asylum seekers from Australia would be welcomed back to Sri Lanka (see Offences under the Immigrants and Emigrants Act). Human rights groups greeted this statement with scepticism.
Despite positive government sentiment, refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. Most returnees have incurred significant expenses or debt to undertake their outward journey. Some refugee returnees receive reintegration assistance in the form of transport assistance and livelihood support upon return to Sri Lanka from the government, UN organisations and international NGOs, but this requires a returnee to meet strict eligibility guidelines and is minimal. Failed asylum seekers receive limited reintegration assistance. Many returnees have difficulty finding suitable employment and reliable housing on return. Those who have skills that are in high demand in the labour market are best placed to find well-paid employment. In 2016, the Sri Lankan government promised to recognise the educational and professional qualifications acquired by refugee returnees outside Sri Lanka, but returnees continue to report challenges in obtaining recognition for foreign qualifications.
While the government has reportedly decreased systematic surveillance of returnees, DFAT is aware of anecdotal evidence of regular visits and phone calls by the Criminal Investigation Department to failed asylum seekers in the north as recently as 2017. A UNHCR survey in 2015 reported that 49 per cent of refugee returnees in the north had received a visit at their homes for a purpose other than registration, with almost half of those visits from the police. Refugees and failed asylum seekers reported social stigma from their communities upon return; in some communities, people resent the financial support provided to refugee returnees.
Bureaucratic inefficiencies rather than official discrimination present the biggest challenge to reintegration for returnees. Refugee returnees, particularly those who returned without UNHCR facilitation, can experience delays in obtaining necessary identification documents and citizenship. Lack of documentation inhibits access to social welfare schemes and their ability to open bank accounts, find employment or enrol in educational institutions. Limited job availability in the north and east (see Employment) further contributes to difficulties in securing employment and housing. DFAT assesses that reintegration issues are not due to failure to obtain asylum, but rather due to the employment and accommodation difficulties they may face. Only 0.3 per cent of refugee returnees interviewed by UNHCR (including UNHCR-facilitated and voluntary returns) in 2016 indicated that they had security concerns following their return.
DFAT assesses that returnees may face some societal discrimination upon return to their communities, which could also affect their ability to secure housing and employment. DFAT further assesses that continued surveillance of returnees contributes to a sense of mistrust of returnees within communities.[4]
[4] DFAT Country Report – Sri Lanka, 23 May 2018, paras 5.27 – 5.42

UNHCR’s July 2012 report ‘Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka’ states, in part:
… At the height of its influence in Sri Lanka in 2000-2001, the LTTE controlled and administered 76% of what are now the northern and eastern provinces of Sri Lanka. Therefore, all persons living in those areas, and at the outer fringes of the areas under LTTE control, necessarily had contact with the LTTE and its civilian administration in their daily lives. Originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection in the sense of the 1951 Convention and its 1967 Protocol.[5]
[5] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012, p. 25 <>
The 2013 decision of the United Kingdom Upper Tribunal (Immigration and Asylum Chamber) in GJ and others (post-civil war returnees) Sri Lanka CG [2013] UKUT 00319 (AIC) comprehensively considered the available information on the treatment of Tamils in Sri Lanka and the treatment of those returning. It is a decision that is designed to guide UK decision makers. The decision qualifies the risk category relating to those with actual or perceived connections to the LTTE. It states that the establishment of former links to the LTTE are not determinative of an asylum claim today :
It is not established that previous LTTE connections or sympathies (whether direct or familial), are perceived by the GOSL as indicating now that an individual poses a destabilising threat in post-conflict Sri Lanka; as indicated in the UNCHR Guidelines and in the evidence before us, the extent to which past links predict future adverse interest will always be fact specific, and for those with close links to the LTTE’s operations during the war, the exclusion clauses may well be relevant.^[6]
…
The government’s present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state enshrined in Amendment 6(1) to the Sri Lankan Constitution in 1983, which prohibits the ‘violation of territorial integrity’ of Sri Lanka. Its focus is on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organisation and (b) the revival of the civil war within Sri Lanka.[7]
[6] GJ and others (post-civil war returnees) Sri Lanka CG [2013] UKUT 00319 (AIC), para 325
[7]Ibid, para. 356(3)
The decision lists risk categories of those who are subject to persecution or serious harm, including:
Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.[8]
[8] Ibid, para.356(7)(a)
It goes on to state:
The Sri Lankan authorities’ approach is based on sophisticated intelligence,
both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities
know that many Sri Lankan Tamils travelled abroad as economic migrants and also
that everyone in the Northern Province had some level of involvement with the
LTTE during the civil war. In post-conflict Sri Lanka, an individual’s past history
[9] Ibid para. 356(8)
will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government.[9]
Independent information indicates that those known to have supported the LTTE were rounded up into rehabilitation camps shortly after the end of the civil conflict. Most have now been released.[10]
[10] International Crisis Group, ‘Sri Lanka's North I: the denial of minority rights’, Asia Report No.219, 01 March 2012, p. 10, footnote 73 CIS22742
Credibility, findings and assessment
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘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’. The Tribunal notes also 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’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Sri Lanka and accordingly his claims will be assessed against Sri Lanka.
The Tribunal has core credibility and plausibility concerns regarding the scenario put forward by the applicant that he was, on a long term basis, or still is, seriously suspected by Sri Lankan authorities as being involved in the LTTE based on having spent a short period in an LTTE controlled area in 2006.
As the applicant’s factual claims over time make clear, he is stating that he was made to report weekly from 2009 until leaving Sri Lanka in 2012 at an army camp because of a belief of his LTTE involvement based on him having spent time in Vanni in 2006. The applicant claims that it is this period in an LTTE controlled area in 2006 that would result in Sri Lankan authorities currently believing that the applicant was involved in the LTTE and causing him harm on return as a result.
The applicant has claimed that although he was questioned as to LTTE involvement by authorities in 2006 on return to [Town 1] it was not until 2009 that the requirement was imposed on him by authorities to report at an army camp every week for several years based on the suspicions that had arisen in 2006.
The Tribunal also does not find it credible or plausible that the applicant would have been made to report to an army camp on a weekly basis for approximately three years from 2009 on suspicion that he had been involved in the LTTE, without authorities earlier making a conclusive determination one way or the other whether the applicant had been so involved. The fact of the civil conflict ending in 2009 could have been a legitimate catalyst for the applicant having to report to security officials and having to answer questions in the immediate aftermath of the ending of the conflict. The Tribunal considers that if the applicant had been under any serious suspicion of being involved in the LTTE he would have been detained and sent to a rehabilitation camp for LTTE members. As the independent information makes clear after the end of the civil conflict the Sri Lankan authorities managed a large scale rehabilitation process.
The Tribunal also notes that the DFAT report indicates that Sri Lankan authorities had sophisticated intelligence on former LTTE members and supporters. Again, the Tribunal considers that the authorities would have maintained ongoing suspicions over several years of the applicant having LTTE involvement without finally determining whether this was the case or not.
The Tribunal has credibility concerns with the applicant’s claims to have suffered physical harm from the army and navy in the course of his fishing activities given the failure to make any claims to this effect in his initial entry interview.
In that interview the applicant is asked why he left his country. He makes reference to being required to report to the army. He is then asked if anything else happened to him other than being queried by the army. The applicant provides no additional indication of any difficulties other than the army questioning. The applicant is then asked another time if anything else happened to him which made him leave Sri Lanka. The applicant responds ‘no’.
The applicant has previously explained that he did not mention harm during fishing activities in his entry interview because he was so happy to have arrived in Australia. The Tribunal does not accept this explanation. If the applicant had been fleeing Sri Lanka on the basis of a risk of harm and, on arrival in Australia, had been asked why he had left Sri Lanka the Tribunal considers that he would have revealed difficulties faced in fishing activities had they been a significant cause of him leaving Sri Lanka.
The failure by the applicant to indicate in the entry interview any difficulty suffered from military officials in relation to fishing activities is undermining of the truth of those claims or the severity of the claimed treatment by military officials. The failure to make this claim suggests that there was either no mistreatment by the military in the applicant’s fishing activities or that it was not overly severe.
These credibility issues cause the Tribunal to not be satisfied with key elements of the applicant’s claims. Whilst the Tribunal accepts that the applicant was questioned by authorities on return from Vanni in 2006 as to whether he had any involvement in the LTTE, the Tribunal considers that the applicant satisfied authorities at that time that he was not involved in the LTTE, including by explaining that he had two young children.
The applicant did provide evidence which was reasonably consistent and convincing of him being required to report to an army camp. The Tribunal accepts that at some period either during or in the immediate aftermath of the civil conflict in 2009 the applicant was required to regularly report to an army camp for a limited period. This would be consistent with the scrutiny that was taking place of Tamils during and in the immediate aftermath of the civil conflict to determine whether they had LTTE involvement. The Tribunal does not accept that these reporting requirements continued for three years. The Tribunal would accept that the reporting continued for a period of, at most, a few months and that in a reasonably short period authorities determined that the applicant was not a person of ongoing risk or requiring any particular attention or scrutiny.
The Tribunal is prepared to accept that the applicant may have been treated roughly in the army camp with racially derogatory comments having been made towards him. This would not be inconsistent with the negative and adverse manner in which security officials treated Tamils in Sri Lanka both during and in the immediate aftermath of the civil conflict.
However, the Tribunal would find that Sri Lankan authorities reasonably soon after the end of the civil conflict determined that the applicant was not a person of ongoing adverse interest. The Tribunal is not satisfied that authorities would have flagged the applicant on government systems as having being involved in the LTTE or that they would have any ongoing concerns or suspicions in this respect.
Given those findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm based on authorities having a suspicion that he was involved in the LTTE, or based on the applicant having an ongoing reporting requirement to the army, at the time that he left Sri Lanka which he did not meet as a result of his departure.
Again, the Tribunal can accept that the applicant may have been treated roughly and verbally abused by the army and navy as part of that role in interacting with fishermen, but the Tribunal would not be satisfied that this treatment was overly severe or constituted serious or significant harm given that harm of this nature was not referred to by the applicant in response to multiple questions in his entry interview on first arrival in Australia.
Independent information makes clear that the navy in Sri Lanka no longer have responsibility in issuing fishing licenses or passes to Sinhalese fishermen.[11]
[11] Country of Origin Information Services of the then Department of Immigration and Border Protection, Standard Q&A Report: Sri Lanka LKA43534 - Fishing passes/licenses – Tamil fisherman, 3 December 2014
The Tribunal finds that the navy is no longer responsible for fishing licenses for fishermen in Sri Lanka. Therefore the Tribunal would not be satisfied that the applicant faces a real chance of serious or significant harm based on hurdles created by the navy in issuing fishing licenses. The Tribunal would not be satisfied that territorial or time restrictions on fishing would constitute serious or significant harm. In relation to fishing activities, the Tribunal would not be satisfied that the applicant faces a real chance of serious or significant harm based on the requirements for fishing permits, fishing restrictions or based on a risk of physical harm from military officials.
The Tribunal considers the claims that the applicant faces harm on return to Sri Lanka based on his Tamil ethnicity alone. Whilst the Tribunal does accept that there has been a degree of marginalisation and discrimination towards Tamils in Sri Lanka, the Tribunal is not satisfied that the weight of independent information supports the conclusion that, as a class, Tamils face a real chance of serious or significant harm. The applicant’s personal circumstances need to be considered in this assessment. Whilst the Tribunal accepts that the applicant may have been made to report for a period to authorities at the end of or soon after the civil conflict, and that the applicant may have had rough encounters with military officials while fishing, the Tribunal is not satisfied that these have been such ongoing and systemic behaviours that would result in the applicant facing a real chance of serious or significant harm on return to Sri Lanka based solely on being Tamil. The Tribunal would find that the applicant has been able to make his way through life with ongoing employment and raising a family who he has supported. The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm on return to Sri Lanka based solely on being a Tamil.
In addition to claims based on being suspected of LTTE involvement and harm as part of fishing activity, it is claimed that the applicant faces a real chance of serious or significant harm on return to Sri Lanka based on him being a failed asylum seeker returning from Australia and as a result of the process and outcome of him being charged for leaving Sri Lanka unlawfully.
The Tribunal has carefully considered the information in the recent DFAT report in these respects. It has noted the submissions and independent information forwarded by the applicant’s migration agent, including information provided from the Edmund Rice Centre.
The Tribunal acknowledges that the applicant will be questioned and his background investigated as he enters the country. The Tribunal is not satisfied that this questioning an investigation will elicit any adverse information in relation to the applicant. The Tribunal acknowledges that the applicant may be questioned by authorities on return to his home area. The Tribunal considers that this will be relatively routine treatment to seek to identify and categorise the applicant.
The Tribunal accepts that there are reports of Tamils returning as failed asylum seekers from foreign countries as suffering harm from authorities on return to Sri Lanka. However, the weight of independent information would not cause the Tribunal to find that Tamils, as a class, returning from a foreign country having unsuccessfully claimed asylum in that country would face a real chance of serious or significant harm on return to Sri Lanka simply as a result of having sought asylum in a third country and having lived in a Western country.
Many thousands of Tamils have returned to Sri Lanka from Western countries after being unsuccessful in seeking asylum and there have only been very limited instances of claims of harm by authorities towards such individuals. However, the Tribunal accepts that there are certain risk profiles which do create a real chance of serious or significant harm. The main risk profile, as clear from independent evidence, would be a suspicion that the person is engaged in post-conflict separatism. There is no evidence that the applicant is so engaged and the Tribunal does not consider that he would be perceived to be involved in post-conflict separatism. The Tribunal does not consider that the applicant has any other risk profile that would cause him a risk on returning to Sri Lanka over and above any other Tamil returnee. The Tribunal is not satisfied that the independent evidence establishes that there is a real chance of serious or significant harm simply based on being a failed asylum seeker from a Western country.
The Tribunal acknowledges the DFAT information that there can be integration issues in terms of living arrangements and obtaining employment. The Tribunal is not satisfied that such hurdles would be insurmountable for the applicant resulting in him facing a real chance of serious or significant harm.
The Tribunal considers claims that the applicant is owed protection based on charges or the sentence he will face on return to Sri Lanka for having left Sri Lanka unlawfully, which the Tribunal accepts that he has done. The Tribunal accepts that the applicant will be charged on return to Sri Lanka under the Immigrants and Emigrants Act (1949). The weight of evidence suggests that the applicant would be detained on remand before appearing before a magistrate for no longer than a few days. The weight of the independent evidence before the Tribunal indicates that the applicant will be granted bail.
The Tribunal does not accept that the applicant will be denied bail because he was told by the army not to leave the country and he nevertheless did so. If having left Sri Lanka unlawfully was a ground for denying bail, then, contrary to what is clearly the case, all or many of those charged with having departed Sri Lanka unlawfully would be denied bail.
The Tribunal is not satisfied that the applicant would be considered by Sri Lankan authorities to have been anything other than a passenger on the illegal boat leaving Sri Lanka. The Tribunal is not satisfied that the applicant would be suspected of being an organiser of people smuggling operations. Sri Lankan authorities assert that no mere passenger on an illegal boat has ever been given a prison sentence for leaving Sri Lanka unlawfully. There is no independent evidence before the Tribunal that would contradict this. Independent evidence is contrary to the assertion that judges have no discretion not to impose a prison sentence. Given the international scrutiny that has taken place with respect to returning Tamils to Sri Lanka the Tribunal considers that if prison sentences had been given to mere passengers on boats that there would be evidence of this. The Tribunal considers, based on independent evidence, that the applicant will be fined between approximately AU$25 and AU$1,670 for having left Sri Lanka unlawfully. The fine may be paid in instalments. The applicant indicated in the first Tribunal hearing that the issue of paying a fine is not an issue.

The Tribunal would consider that the applicant would be in a position to pay off this fine through instalments from either his own resources or from help from his family.
The Tribunal is not satisfied that there is evidence to suggest that the law would be applied to the applicant in a discriminatory manner. The Tribunal considers that the fact of the applicant being charged for leaving Sri Lanka unlawfully and any fine together with being in detention on remand for a few days prior to being brought before a magistrate to consider bail, would be non-discriminatory treatment and would be as a consequence of a law of general application, meaning that such treatment would not meet the Refugees Convention criterion.
The Tribunal considers the position of the applicant being in detention for a few days prior to being brought before a magistrate under the complementary protection criterion.
While the Tribunal accepts that prison conditions in Sri Lanka are inferior, the Tribunal would not be satisfied that having to spend a few days in detention prior to being brought before a magistrate and bail being granted would constitute any defined category of significant harm. Inferior prison conditions would not constitute defined definitions of significant harm, being cruel or inhuman treatment or punishment and degrading treatment or punishment. This is because in both definitions there needs to be the intention of a perpetrator to inflict such harm. Inferior prison conditions would not be a product of any intention but rather due to the resources allocated by the state to detention facilities. The Tribunal would not further be satisfied that there is a real risk that the applicant would be subject to any intentional treatment that would constitute cruel or inhuman treatment or punishment, or degrading treatment or punishment while in detention for a few days on remand. In the absence of any independent evidence before the Tribunal of torture of Sri Lankans returning from overseas facing charges and in detention on remand for leaving the country unlawfully, the Tribunal would not be satisfied that the applicant faces a real risk of torture during such detention.
The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm being a failed asylum seeker from a Western country returning to Sri Lanka. The Tribunal is not satisfied that the applicant would meet Refugees Convention criteria in relation to the process and fact of detention, and any fine imposed for having left Sri Lanka unlawfully. Nor would the Tribunal consider that the process in terms of charges and detention would meet any category of significant harm or fall within the complementary protection criterion.
The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm based on the fact or process of temporary detention for a few days as a result of him being left Sri Lanka unlawfully.
In summary, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Refugees Convention reason for any of the reasons claimed. 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.
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).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
Member

[2019] AATA 5961

23 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction