1831263 (Refugee)

[2023] AATA 4319

1831263 (Refugee) [2023] AATA 4319 (11 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1831263

CASE NUMBER:  2308440

REPRESENTATIVE:  Mr Joshua  Le Vay

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Luke Hardy

DATE:11 September 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the respective decisions not to grant the respective applicants protection visas.

Statement made on 11 September 2023 at 2:29pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – imputed political opinion – Liberation Tigers of Tamil Eelam (LTTE) member – ethnicity – Tamil – victim of sexual assault – risk of gender-based sexual violence – delay in applying for protection – inconsistent evidence – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants protection visas (PVs) under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants are a family of four. They are all citizens of Sri Lanka.

3. [The first named applicant], the husband, first arrived in Australia [in] April 2016. He carried a student visa valid to 20 September 2018. He departed for Sri Lanka on [date] January 2017 and re-entered Australia on [date] January 2017.

4. [The second named applicant] and the daughter [the third named applicant] applied for and were issued Student visas as dependants on 14 February 2017 after [the first named applicant] had already returned to Australia. These were granted on 23 May 2017 and the two arrived in Australia on [date] May 2017.

5. All three of the above departed for Sri Lanka on [date] February 2018 and re-entered Australia on [date] February 2018.

6. Two months later, on 1 May 2018, the first three applicants jointly lodged a PV application. [The first named applicant] and [the second named applicant] were interviewed by the delegate on 30 August 2018. The delegate refused to grant the visas on credibility grounds on 16 October 2018.

7. [The first named applicant]’s and [the second named applicant]’s second child, [the fourth named applicant], was born shortly afterwards. They lodged a separate application in his name.

8. [The first named applicant] and [the second named applicant] appeared before the Tribunal on 18 August 2023 to give evidence and present arguments. They gave evidence on behalf of both children.

9. The Tribunal hearing was facilitated by an interpreter in the Tamil- English medium.

10. The applicants are represented in relation to the review. Their adviser/representative attended the Tribunal hearing.

    CRITERIA FOR A PROTECTION VISA

11. 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, he or she is either a person in respect of whom Australia has protection obligations under the "refugee" criterion, or on other "complementary protection" grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

12. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

13. A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to that country: s.5H(1)(b).

14. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

15. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ("the complementary protection criterion"). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The issues

17. The key issue in this case is whether, on accepted evidence, any of the applicants is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.

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

    Claims to the former Immigration Department (the Department)

19. [The first named applicant] and [the second named applicant] made individual statements of claims on 12 April 2018.

20. Useful summaries of the respective applicants’ claims appear in the two primary decision records.

21. The following is a summary of [the first named applicant]’s claims:

    ·The applicant was born in Killinochchi. In 1996, his family moved to Nelukkulam Camp to avoid civil war hostilities. The applicant received his school education in the camp.

    ·Kilinochchi was under the LTTE control at that time. The applicant being a Tamil was abused and beaten over suspected links with the LTTE by soldiers from the government army units. He was also forced to do unpaid work for soldiers such as cleaning toilets and cutting wood. On one occasion, he was [very grievously assaulted] by a group of soldiers.

    ·In October 2008, his family bribed a military officer and were permitted to leave the Nelukkulam camp. At that point in time, the applicant and his brother decided to join the LTTE and fight against the Sri Lankan army.

    ·They contacted a person they knew as [Mr A] who was an LTTE recruitment agent in Vavuniya. The applicant believes [Mr A] was an alias. This person was later killed in combat.

    ·[Mr A] organised a transfer of the applicant and his brother, [Mr B], to Kilinochchi and then to the Gaddafi camp in Visuvamadu where the applicant received weapons training. Then he was transferred to another location ‘at the border’ where he was given guarding duties. His brother was separated from him and deployed elsewhere.

    ·The Sri Lankan army was advancing and one night two of his fellow LTTE soldiers got killed. The applicant ran away from his unit and hid in a hut with an elderly couple. After two days, he returned to Vavuniya walking on a jungle path and re-united with his parents in [Village 1].

    ·In mid-2009, he obtained a study place at [named] Campus. He was afraid to be identified by the Sri Lankan army and security agencies as a former LTTE combatant; therefore, he decided to move to [University 1 campus] where he was less likely to be identified as a LTTE supporter. He commenced his study in September 2009 and graduated in 2014.

    ·He was living in constant fear of being identified and arrested as a former LTTE combatant who fought against the Sri Lankan military. The LTTE fighters are still being persecuted in Sri Lanka. His brother was arrested by security forces and since then his current whereabouts have been unknown.

22. From this evidence, I understand that [the first named applicant] claimed to have been an armed guard when performing guarding duties for the LTTE “at the border”. 

23. [The second named applicant]’s claims were also accurately summarised by the delegate:

    ·The applicant married her husband on 12/02/2014.

    ·They have a daughter and currently the applicant is pregnant with their second child.

    ·In Sri Lanka she resided in [Village 2].

    ·Vinayagamoorthy Muralitharan known as Karuna learned that her husband was away in Australia. One day, Karuna and his two bodyguards appeared at her family home and asked her parents to stay inside a room. They asked the applicant if it was true that her husband had been with the LTTE. She stated that he never was an LTTE fighter. Karuna suggested that, if she cooperated, she and her husband would not experience any problems. She understood that he hinted at sexual favours and said that she would think about it and tell her decision later.

    ·Sometime later, she passed a message to Karuna via a neighbour saying that she did not want any ‘help’.

    ·In 2016, Karuna visited her home two or three times asking her about her husband and suggesting to rethink her refusal to ‘cooperate’.

    ·She later heard from other villagers that Karuna and his bodyguards made similar offers to other women in the village. She personally heard about at least three cases. Karuna gave one of those women a job at a local bank office – presumably as a trade-off for sexual favours.

    ·The applicant was scared that Karuna might harm her because of her refusal to give in to his sexual advances and reported these incidents to her husband. He arranged a subsequent Student visa for her so that she could depart Sri Lanka and join him in Australia.

    ·She fears that, if she returns to Sri Lanka, she would once more find herself in the same precarious situation where she might be sexually assaulted by Karuna and that her husband might be also harmed because of his past involvement with the LTTE.

24. The following claims were made on behalf of the applicant son, [the fourth named applicant]:

    ·The applicant is [an infant] born in Australia to asylum seeking parents.

    ·He was born [period] after his parents’ protection visa (PV) application was refused, application ID [number].

    ·His parents have appealed the refusal of the PV application to the Administrative Appeals Tribunal (AAT).

    ·The applicant fears returning to Sri Lanka as he will face serious harm due to his ethnicity as a Tamil and for an imputed political opinion due to his ethnicity, and because of his parents’ claims.

25. In response to questions at the delegate’s interview, [the first named applicant] gave additional information:

    … after arriving in Australia, the applicant visited Sri Lanka on two occasions: on [date]/01/2017 returning on [date]/01/2017 and on [date]/02/2018 returning on [date]/02/2018. I asked the applicant to explain the purpose of his travel to Sri Lanka. He said that his first trip was undertaken to assist his wife and daughter with a move to Australia. His second trip was undertaken because his mother was gravely ill and moved to a hospital.

    The applicant’s parents, a brother and a sister live in Vavuniya in the north of Sri Lanka. His other brother is missing, presumably arrested and disappeared by government forces because of his involvement with the LTTE. Last time the family heard of him was in 2009. Their parents did not allow the applicant to travel to the location where his brother was presumably captured for fear that he, too, will be detained by the military. In any event, they had only rumours to go by.

    His father owns a piece of land and does some farming employing workers to assist him. His younger brother lives at home with parents because jobs are scarce in the area. The applicant stays in regular contact with his family.

    The applicant obtained a Bachelor’s degree in [Discipline 1] from [University 1]. He finished school (year 12) in August 2008. In September 2008, he applied for a study place at [University 1] and was eventually accepted but he commenced his study only in June or July 2009. He applied for the study place by a letter and did not have to attend the university in person until the start of the first term.

    Upon graduation, he was working part-time for a [company] and as a trainee for [Organisation 1].

    He met his wife at the university around 2011 and they got married in February 2014.

    He has never been arrested or convicted for criminal offences.

    I asked the applicant to relay in detail his story of involvement with the LTTE. He provided the following account:

    He, his brother and their friend agreed to join the LTTE succumbing to cajoling from [Mr A], an LTTE recruiter and because he was previously abused by the Sri Lankan military at the Nelunkulama camp as a 10-year old boy. After joining, the applicant refused to participate in the weapons training, or any other kind of military training, and merely agreed to be fulfil chores that did not involve use of firearms or combat roles. He regretted his decision to join the LTTE and disliked the LTTE service from day one. They were brought to a military camp in Visuvamadu. The applicant couldn’t tell how big the camp was and what kind of forces were stationed there because they stayed there only for two days. All three were then deployed to separate locations. The applicant was walked through the jungle for about 12 hours to a new location. He was included into a small group of LTTE members out of any permanent location which were doing patrols and guarding duties. He was appointed to assist a military [medic] and tasked with menial housekeeping duties such as cleaning and cooking. He never received weapons or medical training nor did he take part in combat or any other military actions. He did not wear uniform. In fact, he was not given any military equipment at all.

    The applicant stayed with the medic for only three months from October 2008 till January 2009. In the end of 2008, intense fighting between the LTTE and the government forces broke out. When the applicant saw blood and wounds for the first time, he fainted. He was made to carry dead bodies. The applicant got anxious and asked the medic who was his supervisor to be released back to his parents. The medic took pity with him and let him go with a group of about 40 other civilians. After leaving the combat zone, the applicant walked with several thousands of other displaced persons to reach a safe area. He was carrying someone else’s baby in his arms which helped him escape adverse attention from government forces. Because of a massive number of IDPs reaching five or ten thousand people, Sri Lankan army personnel did not bother to do individual ID checks. Identity checks started happening much later when the fighting was over.

    When the applicant returned to his parents, they moved to the east of the country. He discovered that no one missed him and his temporary absence did not raise any questions with authorities. His parents did not dare to report their sons’ disappearance to authorities because they suspected that the applicant and his brother went to ‘tigers’. He commence his university study and finalise his degree without his past connection with the LTTE being discovered.

    The issue of his LTTE participation emerged only in 2016 when the applicant already was in Australia and Vinayagamoorthy Muralitharan (also known as Colonel Karuna Amman) started harassing his wife. After graduation, the applicant was living with his wife in the east of Sri Lanka, near Batticaloa. There is a distinct division between the Tamils from the north such as the applicant and those from the east. Karuna is a local from Batticaloa area. He found out that the applicant was originally form the north and started collecting information on him. Karuna is a former LTTE commander who changed sides and became a leader of a pro-government paramilitary group and a politician. He retains access to extensive Tamil networks all over the country including former LTTE combatants and apparently gained information about the applicant’s LTTE involvement through these channels.

    Karuna first started sexually harassing the applicant’s wife without knowing anything about the applicant’s identity and involvement with the LTTE. He then started collecting information on the applicant and it was at that time Karuna had become aware of the applicant’s LTTE background and started threatening him.

    When the applicant’s wife first complained about sexual harassment by Karuna, the applicant went back to Sri Lanka to help her with the subsequent visa application. Karuna learned that the applicant returned to Sri Lanka. As a result, the applicant had to cut his stay short to only 3 or 4 days instead of initial 3 or 4 weeks and hurry back to Australia. When he was at home, Karuna and his security detail entered the applicant’s home and assaulted him. They punched him in the face and stomach and put a knife to his neck … The applicant managed to push them aside and run out of the house. That was why the applicant decided to leave the country much earlier.

    After his wife and daughter joined the applicant in Australia, he thought the issue was settled. He went back to Sri Lanka in February 2018 because his mother had become seriously ill.

    I quoted DFAT information suggesting that persons with indirect and past connections with the LTTE, unless at a very high level of the organisation or who committed criminal acts or war crimes, are not likely to face adverse harm on the basis of those past connections. The applicant said the situation is different in the north of the country where persecution of former low-profile LTTE members still occurs but is not widely reported. Many of such people have become essentially disabled as a result of ill-treatment and torture.

    I asked the applicant if he could relocate to another part of the country where he could be safe from persecution. He responded that Karuna has a network of his people all across the country and also has access to official records. He might be safe for one year or so but will be eventually located.

    I asked the applicant why Karuna and his people would take so much effort looking for the applicant all across the country whereas his participation with the LTTE was minimal and happened when he was of a young age. The applicant responded that Karuna would target him because he is interested in his wife. Karuna has been cohabiting with two or three women whose husbands he accused of having links to the LTTE and killed.

    Karuna has basically unlimited personal power, he served as a minister in the previous government and has now founded his own political party. Even the country’s president does not dare to touch him.

    [Tribunal’s emphasis]

1. [The second named applicant] made additional claims to the delegate:

   I asked the applicant why, after leaving Sri Lanka to avoid sexual abuse, she returned there only a year later in 2018 and stayed at the very place where she had previously lived and was sexually abused by Karuna. She said she believed that her sexual harassment was no longer an issue after she joined her husband in Australia. They both travelled to visit his sick mother in Vavuniya and then went to her native village where they previously resided, to see her relatives. Her parents were anxious to meet with her and see their granddaughter.

   When they were still dating, she learned that her future husband was ‘taken’ by and spent some time with the LTTE. She did not think it was a serious matter back then and was not particularly interested to discuss this information because the LTTE ceased to exist by that time. I asked the applicant to clarify whether the applicant told her that he volunteered or was forcibly taken by the LTTE. She stated the latter was true.

   I asked her when the harassment started and to provide an account of what happened. She said it started sometime in 2016 after her husband departed for Australia. Karuna visited her village to see a woman who used to be his lover and had his baby. This woman was previously married and had two children. Karuna came at night with his two bodyguards and pushed the door open. He was heavily drunk. He claimed that the applicant’s husband had been an LTTE cadre. Everyone in the room tried to persuade him it was not true. Karuna moved towards the applicant, her father attempted to stop him and Karuna hit him on the face. Then Karuna threatened the applicant saying that he knew her husband had been with the LTTE; he said she should stop lying. He then suggested that, if the applicant ‘goes along’ with him, there will be no problems for her and her family. He was standing very close to the applicant so she realised that he referred to sexual matters. She asked to give her time to think it over and that she will respond later.

   Karuna came another 2 or 3 times after 2 or 3 weeks prompting her to make a decision. I asked when the last visit took place. She said it was in February 2018 when her husband and she last visited Sri Lanka. Her parents, her husband and she returned home after visiting the applicant’s mother in a hospital in Vavuniya when Karuna appeared with two security officers. Karuna verbally abused the applicant accusing him of being an LTTE cadre. Her parents tried to reason with Karuna stating that her husband was a student at that time and never served with the LTTE. Her husband tried to intervene into the argument. Karuna threatened to kill him. Karuna’s security officers kept the parties apart to prevent a fight. There was after all no physical contact. Then Karuna verbally abused the applicant, her child got afraid and started crying. Karuna ordered the applicants to come and see him next morning but they simply left Sri Lanka.

   I asked the applicant if anything happened on her husband’s first visit to Sri Lanka in January 2017. She said that, about one week before her husband’s arrival, Karuna came to her place heavily intoxicated. At that time, he actually managed to sexually assault her. When her husband came back, he took the applicant and their daughter to their aunt’s place where they stayed until the visa application was sorted out. Her husband stayed there with them until his departure. He remained at their home only for one night upon arrival before they all moved to their aunt’s place. The applicant stated that, on that single night when her husband and she remained in their own home, no incidents happened.

   I asked if the applicant and her husband could move to a different location within Sri Lanka for safety. She stated that even little children are abused in Sri Lanka. Her daughter’s mental state has suffered from witnessing her mother being assaulted. Applicant’s parents accumulated enough wealth for them to have a good life and she would otherwise not need to seek safety in another part of Sri Lanka or abroad but Karuna makes it impossible for her and her family to safely live in Sri Lanka.

   [Tribunal’s emphasis]

2. Both [the first named applicant] and [the second named applicant] claim that the delegate erred in recalling that [the second named applicant] was staying at an aunt’s place when Karuna attacked [the first named applicant] during his 2017 visit home. I have played and replayed the recording of the PV interview and agree that the delegate erred in this aspect of his summary of evidence. [The second named applicant] described a visit by Karuna at her parents’ house a week prior to [the first named applicant]’s return visit to Sri Lanka, upon which return [the first named applicant] then moved her to an aunt’s house while he completed arrangements for her visa.

3. I note, however, that whereas the applicants had previously claimed that [the first named applicant] was able to move [the second named applicant] to Australia before Karuna had an opportunity to assault her sexually, the claim at the PV interview was that he did do so on one occasion, just a week before [the first named applicant] came back to Sri Lanka on [date] January 2017 to arrange dependant visas.

   Evidence and issues discussed at the PV interview with the delegate

4. During the PV interview, [the second named applicant] evidently said that [the first named applicant] had told her he was kidnapped by the LTTE and forced to join them. During the same interview [the first named applicant] himself claimed that he and his brother volunteered. He explained that he was motivated to join the LTTE because he had once been abused by government soldiers in the camp some nine years earlier. He claimed he then lost interest on the very first day upon arriving at a training camp and refused to be given weapons training. The delegate drew attention to [the first named applicant] having said in his written statement that he had indeed been given weapons training and that he was then deployed elsewhere and given presumably-armed “border guard duties”. In reply, [the first named applicant] denied having ever been trained in the use of weapons and claimed that he refused to participate in weapons training. He said he was therefore transferred to a small unit far away from the training camp where he was  appointed an assistant to a military medic and given menial tasks. He said that he did not carry weapons or wear a uniform and was never given military guarding or other military duties.

5. During the PV interview [the first named applicant] gave verbal evidence about his escape from the LTTE camp that appeared inconsistent with what he had written in his original statement of claims. In writing, he had claimed that he absconded from his unit and kept hiding at a nearby house belonging to an elderly couple for two days and then walked a jungle path home to Vavuniya. At interview, he said that the military medic, his supervisor, took pity upon him and let him join a group of Tamil civilians who were evacuated from the combat zone. Later in the interview, he evidently said he joined a large mass of refugees walking away from the battle zone on feet in full view of the government troops who did not check their identity because of their large number. He said that he carried someone's child in his arms which made him look like a family member and thus avoided adverse attention.

6. The delegate considered this oral testimony against independent country information to the effect that Sri Lankan military authorities singled out all young males of Tamil of a serviceable age who were residing in or trying to leave the combat zone:

   As a result of the ongoing LTTE attacks on Government and civilian targets in the country, which have included suicide attacks by Tamil men and women, Tamils, in particular those originating from the North and East have been under suspicion. Wide scale arrests and detention of Tamils have been reported throughout the country. As in the North and the East, they are frequently associated with cordon and search operations and frequently follow bombings or other attacks by the LTTE. Tamils who are without proper identity documents are more likely to be arrested and detained in these operations.[1]

   [1] "The Implementation of certain Human Rights Conventions in Sri Lanka", European Commission, 1 January 2009

7. The delegate also located a Human Rights Watch report from 2010 that stated:

   Faced with possible starvation or death by shelling or gunfire, many civilians escaped to presumed safety in government-controlled areas, surviving fire from LTTE forces attempting to prevent their flight, almost continual crossfire and scattered landmines. For the most part people fled in small groups, but a massive exodus of tens of thousands of people took place after the government broke through LTTE defense fortifications on April 20. According to the United Nations, 290,000 people crossed over to government-controlled areas from the conflict zone between October 27, 2008, and June 1, 2009. At several checkpoints, security forces screened and registered the displaced before transporting them to detention camps in the north, which the government euphemistically called "welfare centers." The largest detention camp was the multi-camp Menik Farm in Vavuniya district.[2]

   [2] "Legal Limbo - The uncertain fate of detained LTTE suspects in Sri Lanka", Human Rights Watch, 1 January 2010

8. The delegate reasonably observed, on the HRW information, that it would have been highly unlikely for a person to leave a combat zone at the peak of the government offensive without attracting adverse attention, being detained and ending up, at least temporarily, in a detention camp.

9. In his written statement, [the first named applicant] also claimed that he kept hiding after joining his parents until he could start his university study at a remote campus. However, during the PV interview, he said that when he returned nobody even noticed his absence and therefore did not question him about where he had been, which suggests there would have been no need to hide.

10. The delegate’s decision puts [the first named applicant] on notice that his claim about ever having joined the LTTE, no matter what motivated him, contained factual contradictions and appeared inconsistent with relevant independent reporting. The delegate also referred to reporting about lists compiled and consulted by Sri Lankan authorities to check the background of Tamil youths enrolling in university right after the end of the hostilities to screen out and detain active LTTE cadres.[3]

    [3] DFAT Country Information Report Sri Lanka, Department of Foreign Affairs and Trade (DFAT), 23 May 2018, p.18

11. One of the reasons for the delegate’s negative credibility findings regarding [the first named applicant]’s claimed affiliation with the LTTE related to the question of how plausible it could be that he could finish high school, apply for a place at university, join the LTTE for a mere three months, then manage to return home without attracting adverse attention, and slip, as it were, into university and commence studies there. Although [the first named applicant] claims he was profoundly motivated to join the LTTE in 2008 and suddenly went off the idea after joining, he was already on a pathway to tertiary study as a civilian the whole time. The delegate found that [the first named applicant] appeared to have “inserted the story of his LTTE involvement into his real-life story in the manner it would serve the purpose of supporting his claims without conflicting with known facts.” The delegate observed that at its best, [the first named applicant]’s testimony of LTTE involvement was, in [the first named applicant]’s own words, brief, minor and insignificant.

12. The delegate referred to then-recent DFAT information[4] about the treatment of former LTTE members that indicated that those with indirect and past connections with the LTTE, unless at a very high level of the organisation or expressed in criminal acts or war crimes, were not likely to face adverse harm on the basis of those past connections. “Low-profile” former LTTE members, according to DFAT, included former combatants, those employed in administrative or other roles and those who might have provided a high level of non-military support to the LTTE during the conflict.[5] Low-profile former LTTE members might have been monitored but generally are not prosecuted.[6] Low-profile LTTE members who came to the attention of the Sri Lankan authorities would be detained for questioning and might be sent for rehabilitation.[7] The delegate observed that even if [the first named applicant] had had some kind of connection with the LTTE in the past that only recently came to the attention of authorities, there was no real chance he would suffer serious harm for that reason. Relevant to this, [the first named applicant] advised the delegate that he had never been placed on any “stop” or “watch” lists comprising the names of and information regarding “persons of interest”.

    [4] DFAT Country Information Report Sri Lanka, Department of Foreign Affairs and Trade (DFAT), 23 May 2018

    [5] Ibid.

    [6] Ibid.

    [7] Ibid.

13. Regarding the claims about Karuna, and on the basis of finding that [the first named applicant]’s claimed involvement with the LTTE was a complete invention, the delegate did not accept that there was any circumstance in which Karuna could have discovered his past LTTE membership. The delegate also drew attention to discrepancies between [the first named applicant]’s and [the second named applicant]’s respective oral testimony: [the first named applicant] maintained that Karuna first made sexual advances towards [the second named applicant] without being aware of his, [the first named applicant]’s, past connection with the LTTE and only later learned about it and started using it as a means to force [the second named applicant] into accepting his sexual advances. However, [the second named applicant] evidently claimed during the PV interview that Karuna mentioned her husband’s LTTE membership the very first time he turned up at her home and that her parents had to vehemently deny it, whereupon he then appeared to show a sexual interest in [the second named applicant].

14. During the PV interview, [the first named applicant] said that he was physically assaulted by Karuna and his bodyguards at his wife’s home on his first return trip to Sri Lanka in January 2017. He said that he managed to escape the attackers and hide for a few days before he could return to Australia. [the second named applicant], however, provided a different version of these events saying that [the first named applicant] took her and their daughter on the first day of his visit and moved them to her aunt’s place. She claimed that [the first named applicant] himself had no encounters with Karuna and suffered no harm during his first return trip to Sri Lanka. I note she also said this to me at the Tribunal hearing.

15. The delegate noted that, according to [the second named applicant], there was a “heated altercation” between [the first named applicant] and Karuna during their second visit to Sri Lanka in 2018. She evidently said that the conflict almost precipitated a fight that was prevented by Karuna’s security personnel. [The second named applicant] claimed that it was this incident during the last return trip to Sri Lanka that finally convinced [the first named applicant] and herself to seek protection in Australia. The delegate observed that, in spite of the significance of this episode, [the first named applicant] had not mentioned it in his written or oral testimony.

16. The delegate concluded that, contrary to their claims, [the first named applicant] and [the second named applicant] had not experienced real harm from Karuna and/or his entourage. The delegate went on to consider [the second named applicant]’s claims about harm from Karuna as a complementary protection claim, supposing, in the alternative, it had happened, but the delegate went on to find that [the second named applicant] was caught by s.36(2B)(a) and did not met the complementary protection test overall.

    Independent country information

17. I have had regard to the following information[8] from DFAT:

    [8] DFAT Country Information Report Sri Lanka, 23 December 2021.

    LIBERATION TIGERS OF TAMIL EELAM (LTTE)

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

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

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

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

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

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

    Rehabilitation

    3.45      Since the end of the war, successive Sri Lankan Governments have managed a large-scale ‘rehabilitation’ process for former LTTE members. The aim of the 24 rehabilitation centres was to process LTTE members who surrendered in the final stages of the war and to assist them to adjust to a life after war, with a focus on vocational training. According to Sri Lankan Government statistics from March 2019, 12,191 former LTTE members (including 2,265 women) had completed rehabilitation. Some centres previously used to rehabilitate former LTTE members have since been redeployed for the purposes of rehabilitating drug addicts and possibly Muslim detainees under the PTA (see Rehabilitation of non-LTTE members).

    3.46      Local sources have previously estimated that between 4,000 and 6,000 former LTTE members are undisclosed and non-rehabilitated, the majority of whom may now be living overseas. Military sources have previously estimated the number of undisclosed and non-rehabilitated former LTTE numbers within Sri Lanka as being low, including approximately 280 individuals in Jaffna (Northern Province).

    High-profile former LTTE members

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

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

    Low-profile former LTTE members

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

    Monitoring of former LTTE members

    3.50      Some Tamils with actual or imputed LTTE links (including those who fought for the LTTE or were part of its civilian administration) continue to report police monitoring and harassment. Multiple sources in the north told DFAT that former LTTE members, including those considered low-profile, are monitored to guard against the LTTE’s re-emergence. Testimonies provided to ITJP show that such harassment can include: frequent visits by police, visits to family members, threats and seizure of mobile devices.

    3.51      Local sources also claimed the authorities – usually undercover police officers or intelligence agents – sometimes used more subtle methods, for example inviting individuals to tea in public places and asking questions about their activities. Such questioning did not involve violence. Telephone calls were also common. Some sources claimed questioning was sometimes indirect, and involved questioning the neighbours of suspected former LTTE members. Sources told DFAT that monitoring of former LTTE members was less extensive in the Eastern Province, insofar as many there had defected during the latter years of the war and aligned with the Government as part of the Karuna Group/TMVP (see Security situation in the north and east).

    3.52      DFAT assesses that, while they may be monitored, Tamils with former links to the LTTE, and who are not politically active, are generally able to lead their lives without concern for their security as a result of their past association with the LTTE.

    Former LTTE members living outside Sri Lanka

    3.53      At least one million Sri Lankan Tamils live outside Sri Lanka, mostly in Canada, Europe (with large communities in the UK and France), Australia and India. Members of the Sri Lankan Tamil diaspora may be citizens or legal residents of those countries, or dual nationals. Some members of the Tamil diaspora return to Sri Lanka to visit family members, for holidays and for business. Remittances from the Tamil diaspora provide an important source of income for family and community members in Sri Lanka.

    3.54      Some members of the Tamil diaspora played a central role during the war, as a source of funding, weapons and other material support for the LTTE, and as political advocates for an independent Tamil state. Some Tamil diaspora groups continue to hold public demonstrations in their countries of residence for an independent Tamil state. High-profile leaders of pro-LTTE diaspora groups, particularly diaspora groups banned under Sri Lankan law, may come to the attention of Sri Lankan authorities because of their participation in such demonstrations. The Sri Lankan Government continues to assess that elements of the Tamil diaspora remain committed to a separate Tamil state. The UK Upper Tribunal in its May 2021 ruling on Tamils engaged in activities in the UK found that a range of political activities such as ‘attending meetings and demonstrations, holding flags or banners displaying the LTTE emblem, attendance at commemorative events, meaningful fundraising, any presence on social media, signing petitions’ may be perceived by the Government of Sri Lanka as threatening and it may trigger official harassment upon return.

    3.55      In March 2021, the Sri Lankan Government proscribed a number of Tamil diaspora groups including the Australian Tamil Congress and the Tamil Youth Organisation (Australia), as well as a number of individuals based in Australia, the UK, Germany, Italy, Malaysia and several other countries. The Australian Tamil Congress and the Tamil Youth Organisation are not proscribed in Australia, while the LTTE remains a proscribed organisation in Australia.

    3.56      Approximately 95,000 Sri Lankan Tamils live as refugees in Tamil Nadu, India. (see Returnees from Tamil Nadu).

    3.57      DFAT assesses Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their security risk profile. DFAT assesses that following Tamils would be of particular interest to the authorities: those who hold leadership positions in Tamil diaspora groups, particularly groups deemed by the Sri Lankan Government to hold radical views; those who were formerly part of the LTTE, particularly in – but not necessarily limited to – high-profile roles; those who are suspected of raising funds for the LTTE during the war; and those who actively advocate for Tamil statehood. Those Tamils living abroad with links to the LTTE are unlikely to return to Sri Lanka voluntarily.

    Family members of LTTE

    3.58      The Sri Lankan Government acknowledges that former LTTE members and their families may continue to face discrimination both within their communities and from government officials. 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. The ITJP, based on interviews with Tamils who have fled the country and are resident overseas, states that family members of former or suspected former LTTE cadres have been subject to harassment and detention.

    Societal discrimination

    3.59      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 be pressured to act as informants for Sri Lankan authorities. There is an acknowledgement within the Tamil community that many people were forced to participate in LTTE activities against their will. DFAT assesses that low-profile former LTTE members face a low to moderate risk of societal discrimination. Societal discrimination against former LTTE members is also related to caste, as the majority of former LTTE members are lower caste. Former LTTE members can readily access government services.

    3.60      Local sources in the north characterised former LTTE members as the most vulnerable and neglected segment of the Tamil population. Former LTTE members face ongoing challenges reintegrating fully into society. Sources told DFAT that unemployment among this cohort, particularly the women, is high. Many, even those who received vocational education as part of the post-war rehabilitation process, lack the skills to find and hold meaningful employment, and some have reportedly resorted to criminal activities. Reluctance by employers to hire known former LTTE members, for fear of inviting monitoring by the authorities, is also reported as a factor. In-country sources said that the lack of economic options experienced by former LTTE members meant that some had become paid informers for the authorities. Anecdotal evidence indicates that mental illness linked to the war is prevalent among former LTTE members. Those with disabilities sustained during the war receive minimal state support, if any at all.

    3.61      Local sources report that female former LTTE members face additional hardships, including the risk of sexual harassment and difficulties finding marriage partners owing to their LTTE past. Women who were forcibly recruited by the LTTE are more likely to be accepted back into their communities than those who joined voluntarily.

    3.62      DFAT assesses that members of the LTTE suspected of serious human rights violations against other 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.

1. I have also had regard to the following[9]:

   Conditions for Returnees

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

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

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

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

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

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

   [9] Ibid.

2. Regarding ethnic Tamils generally, I note the following[10]:

   [10] Ibid.

   RACE/NATIONALITY

   3.1       The 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 war, coupled with previous language policy that was discriminatory toward the Tamil community, mean ethnicity and language are sensitive issues in Sri Lanka. Since 1987, Tamil has become an official language and English is, in practice, a lingua franca between communities.

   3.2       Most Sri Lankans tend to live within their own ethnic communities, although different ethnic groups live within close proximity in major urban areas. As Sri Lanka’s commercial centre, Colombo has attracted Tamils and Muslims from other parts of the country in search of greater economic opportunities. Many Tamils and Muslims also moved to Colombo during the war, to escape the fighting in the north and east. Tamils comprise most of the population in the Northern Province, with the region’s isolation during the war – and the ouster of Muslims by the LTTE in 1990 – making it less ethnically diverse. The Eastern Province, in contrast, is mixed — at the time of the 2012 census (the most recent available), Tamils comprised 39.2 per cent of its population, Muslims 36.9 per cent and Sinhalese 23.2 per cent.

   3.3       Caste remains important in Sri Lankan society, although its influence has decreased over time. Sources told DFAT that caste retains particular significance within the Hindu community. Anecdotal evidence suggests that, for Hindus, caste outweighs religion in relation to marriage – Hindus prefer to marry from within their own caste above all else and inter-caste marriage is frowned upon. DFAT assesses that non-Muslim Sri Lankans, including Tamils, face a low risk of official or societal discrimination based on ethnicity or caste, including in their ability to access employment or housing (see Religion). Language constraints can limit access to education for some Sri Lankans (see Education).

   Tamils

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

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

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

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

   Monitoring, harassment, arrest and detention

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

   3.9       Members of the Tamil community and NGOs report that authorities continue to monitor public gatherings and protests in the north and east, and practise targeted surveillance and questioning of individuals and groups. Security forces are most likely to monitor people associated with politically-sensitive issues, including those related to the war, such as missing persons, land release and memorialisation events (see Civil society organisations and government critics and Media).

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

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

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

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

3. As claims about Martyrs’ Day observances appear in this application, I have had regard to the independent country information that indicates that there has been some ongoing controversy about the observing of Martyrs’ Day in Sri Lanka. Large, public observances of Martyrs’ Day have been banned in some parts of Sri Lanka. I found evidence, however, of court orders allowing commemorations in the Jaffna region[11]. As to the situation in November 2021, there is reporting[12] [13] of security deployments having prevented access by mourners to the sites of former LTTE cemeteries and some other large public spaces in recent years whilst not interfering with lower-key gatherings:

   [11] “Three magistrate courts in Jaffna refused to ban Maveerar Naal commemorative events,” The [Sri Lankan] Times Online, 23 November 2021,

   [12] “Tight security in North over LTTE Maveerar Day events,” The Sunday Times [Sri Lanka], 28 November 2021,

   [13]  “Sri Lanka Govt. launches crackdown on Tamil remembrance,” Sri Lanka Brief, 27 November 2021,

   Tight security was maintained throughout the Northern Province yesterday with temporary
   checkpoints and patrolling of military personnel in streets as residents and organised groups
   held events to commemorate those killed in the separatist war.

   Remembrance events were mostly held in homes and in a few selected public places with
   people lighting oil lamps and candles to remember the dead.

   The events coincided with November 27 “Maveerar” or Martyrs Day observed by the Liberation
   Tigers of Tamil Eelam (LTTE) since the early 1980s to commemorate its fallen cadres.

   Some civil society-led organisations and youth groups organised similar events among their
   close circles yesterday evening.

   In Valvettithurai, more than a hundred people gathered at the Theeruvil grounds to
   commemorate their loved ones with flowers, garlands and candles but they were not allowed
   by security forces. However, a handful of people were allowed to take part in the event.
   Several people and local politicians gathered in Chaati, Velanai at an abandoned LTTE
   cemetery, but security forces and police barred people from entering the site and allowed only
   a few people to go inside.

   Police also prevented people who gathered on the Mullaitivu beach to mark the day and
   arrested one person who refused to obey police directives.

   Throughout the province, many shops were closed and transport services were limited as political parties and civil society forums urged the people to observe low key commemorative events due to the court orders issued by various courts and the pandemic situation.

   In the East, low key events were held in Batticaloa, Ampara and in Trincomalee but no public events were held.

   The Ilankai Thamil Arasu Katchi (ITAK), the main constituent party of Tamil National Alliance, had organised a commemorative event in Kopay, but it was called off after the Jaffna Magistrate issued an order, banning commemorative events.

   Earlier this week, in the Jaffna District, three Magistrate’s Courts refused to issue orders preventing commemorative events.

   The Mallakam, Point Pedro and Chavakachcheri Magistrate’s Courts rejected the applications filed by the police on Friday seeking orders to prevent commemorative events.

   On Thursday, Mullaitivu Magistrate’s Court amended its order to allow commemorative events without using LTTE symbols or photographs.

   Police filed applications under the Penal Code, the Prevention of Terrorism Act and COVID-19 health guidelines.

   Police in the Kilinochchi, Mullaitivu and Mannar districts applied for orders against commemorative events under similar provisions. Refusing to grant orders, the Magistrate’s Courts told police they could take action if regulations were violated at the events, but held the commemoration could not be held with LTTE symbols and flags.

   Meanwhile, a Mullaithivu-based journalist was allegedly assaulted by military persons yesterday when he tried to take photographs of the name board of Mullivaikaal village where the last stages of the war took place.

4. According to some reporting, the so-called “crackdown” was more of a military presence engaged in limiting the scale of commemorations in various locations. The Tamil Guardian reported[14], with multiple, unredacted photographs of mourners lighting lamps and candles, that in spite of the limitations described above, or arguably working within them, Tamils in their thousands observed Martyrs’ Day commemorations across Northern Sri Lanka on 27 November 2021 with only little hindrance:

   [14] “Maaveerar Naal: Kilinochchi, Mannar and Vavuniya,” Tamil Guardian, 1 December 2021,

   Private commemorations to mark Maaveerar Naal were held across the North-East on
   November 27th, amidst a Sri Lankan military crackdown and fears of intimidation, harassment
   and arrest.

   In Kilinochchi, there were reports that the Sri Lankan military had blocked access to destroyed LTTE cemeteries, where locals had gathered in previous years to pay tribute to those that gave their lives in the Tamil liberation struggle.

   Instead, private commemorations were held in temples and homes.

   In Mannar, Tamil National Alliance MP Charles Nirmalanathan lit a flame and candles before a
   banner to commemorate Maaveerar Naal.

   In Vavuniya, former political prisoner Yumana S. Aravindan paid homage to fallen fighters.

   Families of the disappeared in Vavuniya also held a small commemoration ceremony.

   The events across the North-East took place amidst a crackdown by the army that saw a heavy
   military presence and at least one arrest.

5. Independent information about Martyrs’ Day 2022 suggests a further relaxation of conditions for mourners, presenting observances in locations both large and small, public and private, according to photographs and comments that appeared in the Tamil Guardian on 27 November 2022[15]:

   Maaveerar Naal was marked at Eechankulam, the only Thuyilum Illam to have been built by
   the Liberation Tigers of Tamil Eelam (LTTE) in the Vavuniya district.

   A commemorate event was also held in Kalikkaadu in remembrance of the Maaveerar.
   Lamps were also lit at Vavuniya city hall to commemorate the fallen.

   Students at Vavuniya university also held a remembrance event to mark the day.

   [15] “Maaveerar Naal marked in Vavuniya,” Tamil Guardian, 27 November 2022,

   Pre-hearing submissions

6. The Tribunal received the following submission from [the first named applicant]:

   … INCONSISTENCIES RELATING TO MY INVOLVEMENT WITH THE LIBERATION TIGERS OF TAMIL EELAM (LTTE).

   6. I have claimed previously that I was recruited by the LTTE towards the end of the civil war. In my interview I made clear that I joined the LTTE around August 2008 when I had finished school and before I went to [university] in September 2009. This followed the release around 2005 (not 2008 as statement in my written statement – an error corrected in my interview) of my family from Nelukkulam camp where we had been displaced around 1996. We had relocated to [Village 1], Vavuniya rather than returning to the family home in Killinochchi.

   7. I joined the LTTE with my brother – [Mr B], who later went missing and is presumed dead – and a [friend]. The Department stated that I inserted the story of my involvement with the LTTE into my real-life story so as to support my claims without conflicting with known facts. This is not the case - I have provided a true account.

   8. I have consistently claimed that I volunteered to join the LTTE. I understand that my wife – who was interviewed separately from me – told the Department that I was forcibly recruited. My wife and I did not meet until I went to university. I did tell my wife about my involvement with the LTTE after I met her. Whatever her recollection of our discussions, it is the case that I volunteered for the LTTE.

   9. I recognise that in my written statement it states that I received weapons training and that afterwards I was posted as a border guard separately from my brother. In my interview I provided further information about my training. I was taken for weapons training for two days but was unable to carry it out. As a result, I was sent to the border where I provided basic logistical support, such as supplying food and medicine. I was not armed and did not wear uniform.

   10. In my statement it is also stated that I escaped from the LTTE after two other members who were with me were killed and that I travelled to Vavuniya by foot, staying with an elderly couple for two days en route. Again, at my interview I provide further information. I fainted when I saw the bodies and the LTTE medical officer, who I was my supervisor, saw that I was unable to cope. He therefore allowed me to join a large group of displaced people which was heading for Vavuniya. We did stop at the property of an elderly couple on the way – the whole group slept outside the house.

   11. The Department did not accept that I would not have been checked by the Sri Lankan authorities. However, as I explained to the delegate I travelled with a large group of displaced people, and it was impossible for the authorities to check everyone. This was around January 2009, close to the end of the war in May.

   12. In my statement it states that I went into hiding when I joined my parents in [Village 1] until I [moved] around August 2009 to attend university. In my interview I clarified, when asked, that my absence had not been noticed by the authorities, which was the case. I was however afraid that I would be arrested by the authorities and so stayed at home with my parents until I went to university.

   INCONSISTENCIES RELATING TO VINAYAGAMOORTHY MURALITHARAN AKA KARUNA

   13. The Department also did not accept my account about the difficulties my wife and I faced from Karuna and his men. I did not provide an account of this in my written statement. However, my wife provided an account in her statement, which supported the application, and I provided an account at my interview.

   14. As previously claimed, I returned to Sri Lanka because my wife told me that Karuna had threatened her. I left Australia on [date] January 2017 with a view to assisting my wife and daughter and bringing them with me to Australia. However, because of the threats I faced in Sri Lanka and cut my trip short and returned to Australia on [date] January 2017, just a week later. As I said in my interview, I would not have returned to Australia so soon and without my family if I had not been forced to.

   15. In my interview I explained to the delegate that I went to my home where Karuna came with his security people and assaulted me – he punched me in the face and stomach and put a knife to my neck. I understand that my wife said in her interview that I was not harmed on that trip. However, I have provided an accurate account. To be clear, when Karuna came round my wife, her mother and our daughter were at home. Karuna approached my wife and I intervened. Karuna’s men took me outside the house and assaulted me. I then went to my wife’s aunt’s home, remaining there until I returned to Australia. My wife and daughter later joined me at my wife’s aunt’s home.

   16. I went back to Sri Lanka with my wife and daughter on [date] February 2018 because my mother was in hospital in Vavuniya. We visited my mother in hospital and then travelled to Batticaloa. It was during this trip that Karuna and his men again came to our home and threatened me and my wife. Karuna’s men kept me outside the house while Karuna went inside with my wife. The delegate stated that he found it peculiar that I did not mention this in my interview. However, I would have been happy to expand on this in my interview had I been asked. I understand that my wife gave an account of what happened. We returned to Australia on [date] February 2018.

   …

   Additional information

   18. I wish to add that while I have been in Australia – in 2021 and 2022 – I attended ‘Heroes Day’ commemorations, commemorating the deaths of those who fought and died for the LTTE. I fear that this creates an additional risk since if I am concerned that the Sri Lankan authorities will come to know about it.

1. The Tribunal received the following submission from [the second named applicant]:

   …. 4. I wish to respond in brief to some of the issues regarding the credibility of my claims raised by the delegate in the refusal of the application. The delegate found that my husband and I were not harmed by Vinayagamoorthy Muralitharan AKA Karuna because of differences in our accounts. I am happy to provide further information to the AAT at the hearing of my review application.

   5. In my written statement I stated that while my husband was in Australia, I was approached by Karuna who asked questions about my husband’s involvement with the Liberation Tigers of Tamil Eelam (LTTE) and who told me that I would not have any problems if I cooperated with him, which I took to be a threat if I did not have sex with him. It was because of this that my husband returned from Australia to be with me in January 2017. In my interview I confirmed this and said that on the first occasion Karuna came at night when he was drunk with two guards when my parents and daughter were present and sexually assaulted me.

   6. When my husband arrived from Australia, he was also threatened and assaulted at our home. I understand that when asked in my interview whether he was harmed by Karuna I said that he was not. I do not remember saying this. If I did that it is incorrect. Karuna approached me and when my husband intervened, Karuna’s men took him outside. I did not witness him being assaulted but I later joined him at my aunt’s home, where my husband remained until he went back to Australia, cutting his trip short. After my husband was taken outside, Karuna again sexually assaulted me. I have not spoken to my husband in detail about what happened. I may not have disclosed this assault to the Department. It is very difficult to talk about.

   7. Following my entry to Australia in May 2017, I returned to Sri Lanka with my husband and our daughter in February 2018 because my mother-in-law was in hospital. We visited her in Vavuniya and then travelled to our home in Batticaloa. I understand that in my interview I said that Karuna and two men came to our home again, accusing my husband of having been in the LTTE, and that he also tried to abuse me. It is correct that my husband was held outside while Karuna took me inside the house. My parents and daughter were also outside. However, I wish to add that Karuna again sexually assaulted me - this was the worst assault: I was raped. I find it extremely hard to talk about this. It was for this reason that we returned to Australia so quickly.

   8. I believe that I continue to be at risk of sexual assault. Even if I were to return with my husband, he cannot be with me all the time. I also fear that he may be taken away because of his involvement with the LTTE and that I will be alone.

   [Tribunal’s emphasis]

2. The claims about cutting short the February trip to Sri Lanka are not independently supported. I note that later, at the Tribunal hearing, the applicants both claimed that they cut short what was to be a longer stay in Sri Lanka in February 2018 because of what was now alleged to have been a further rape after the one purportedly committed in 2017. [The first named applicant] told me his beating and his wife’s rape occurred four days after they returned to see his mother. He said they then moved to his aunt’s pace. He said as soon as those things happened, he and [the second named applicant] organised to bring forward their flight with their daughter out of Sri Lanka. However, their migration history, as citied in the delegate’s decision record, shows they remained in Sri Lanka for a further ten days, arriving back here on [date] February 2018. It is hard to see that the ten-day delay can easily mean “quickly” in the claimed circumstances.

3. The Tribunal received the following submission from the applicants’ adviser, excerpted here as follows:

   UPDATED COUNTRY INFORMATION

   To assist the Member, we provide the following country information in addition to the latest Country Information Report on Sri Lanka by the Australian Department of Foreign Affairs (DFAT), which is dated 23 December 2021.

   Recent developments and the current economic and political situation in Sri Lanka In May 2021 the UK Upper Tribunal summarised in KK and RS (Sur place activities: risk) (KK and RS) the political landscape in Sri Lanka following the election of the former Defence Secretary - Gotabaya Rajapaksa - as president in November 2019, and his brother Mahinda Rajapaksa, the former president between 2005 and 2015, as prime minister. The Upper Tribunal stated that ‘the “direction of travel” quite clearly does not point towards any improvement in the foreseeable future’, and there is ‘no tolerance of the expression of any avowedly separatist or perceived separatist beliefs’.

   Although somewhat overtaken by recent events in Sri Lanka, it is submitted that the situation in Sri Lanka is not sufficiently settled to diverge from the UK Upper Tribunal’s assessment. Indeed, the pattern in Sri Lanka following the onset of the current economic and political crisis is one of increasing repression. Following the departure of President Rajapaksa in July last year, his replacement - Prime Minister Wickremesinghe - declared a countrywide state of emergency, and many protestors have been arrested and others forced into hiding. In September the government introduced restrictions in Colombo to restrict public protests, and the authorities have responded to protests with excessive or unnecessary use of force.

   In August 2022 the UK Home Office published an updated report on Tamil separatism in Sri Lanka. We bring the Member’s attention particularly to the following passages as being recent information and relevant to our client’s circumstances:

   2.4.30 Since the promulgation of KK and RS, the UN High Commissioner for Human Rights has reported deaths in custody, torture and ill-treatment in detention, including in the Tamil populated areas of the north…

   3.2.10 In an article by the BBC, published in May [2022, in relation to recent economic and political developments but prior to the departure of President Rajapaksa in July 2022], it was noted:

   ‘While the protests in the cosmopolitan capital are peaceful and carnival-like, the situation is different in the north and east of the country, where most of Sri Lanka's Tamil population resides.

   ‘Protests in these areas have so far been much rarer, even though antigovernment sentiment historically runs deep.

   ‘Tamil activists say they fear security forces will not exhibit the same kind of restraint that has been afforded to protesters in Colombo.

   ‘"Here, organising demonstrations has always been met with state violence," says Anushani Alagarajah, a Tamil civil rights activist based in Jaffna in northern Sri Lanka. "There are always two different treatments of protesters. It depends on who you are and where you are."

   The Home Office’s August 2022 report also states the following in relation to the Prevention of Terrorism Act (PTA):

   4.3.2 According to a March 2022 article by the Guardian:

   ‘In recent years some of the worst abuses that were rife in the years after the war, from white-van abductions, torture and sexual crimes against Tamils, have abated. What never disappeared was the draconian Prevention of Terrorism Act (PTA). Since it was passed in 1979, the PTA has been a stain on Sri Lanka’s human rights record, enabling arbitrary arrest, detention without charge or evidence, forced confessions and torture of anyone suspected of terrorism.’…9

   4.3.8 – 4.3.9 In a February 2022 report focusing on the PTA, Human Rights Watch noted that ‘The preamble to the PTA states that its purpose is to prevent “unlawful activities … within Sri Lanka or outside Sri Lanka.”’10…‘The effect of the PTA is to deprive people accused by the government of vaguely defined “terrorist” acts of due process rights, enabling detention without trial that can last for years or even decades, and removing protections that would reduce the risk of torture. A lawyer who has defended suspects in numerous PTA cases said that the authorities bring cases and only then begin their investigation: “If they cannot find any evidence then they record a confession. I have not seen any confession that was recorded in compliance with procedures. My experience is that in only a few cases the confessions have been rejected by the judges.” The effect, the lawyer said, is that “prisoners know they are in a legal black hole. They can’t see the light at the end of the tunnel. They know that they have no future.” This characterization is borne out by the many cases in which suspects are held, sometimes for years, without the government indicating having [sic] any evidence against them...’

   In September 2022 the United Nations Human Rights Council discussed the situation of human rights in Sri Lanka. Some speakers were concerned about the current situation in Sri Lanka, which was said to be characterised by an economic crisis and violations of fundamental human rights. There were high levels of concern around freedom of expression, as peaceful protests resulting from the crisis situation were met with violence. The Acting United Nations High Commissioner for Human Rights, in presenting the United Nations Human Rights Office of the High Commissioner report on the human rights situation in Sri Lanka also commented that ‘Impunity remained a central obstacle to Sri Lanka’s sustainable peace and development, and risked enabling further violations’.

   The report further expressed concerns about increased militarisation, including President Wickremesinghe’s continued reliance on military appointees and involvement of the military in law enforcement; the increased prominence in the North and East of Sri Lanka of the military in law enforcement, governance and development; reports of surveillance, intimidation, harassment of journalists, human rights defenders, families of the disappeared and persons involved in memorialization initiatives, by intelligence services, military and police, particularly in the North and East; and the unnecessary use of force against protestors.

   The DFAT report on Sri Lanka dated 23 December 2021 states that ‘While the [Liberation Tigers of Tamil Eelam (LTTE)] was comprehensively defeated, Sri Lankan authorities remain concerned over its potential re-emergence, and to separatist tendencies in general. Moreover, DFAT refers to the use of torture by the authorities at paragraphs 4.11 to 4.18. DFAT assesses that torture is still used as a routine tool of policing, and that ‘Sri Lankans detained by the authorities face a moderate risk of torture. This is especially the case for the poor and criminal elements, and for those who challenge or are perceived to challenge the Government’.

   Amnesty International in its July 2022 submission to 42nd Session of the Universal Periodic Review (UPR) working group stated that ‘Space for dissent has closed dramatically since the previous review, with police criminal investigators, human rights defenders, lawyers, opposition parliamentarians, trade unionists, student activists all targeted by the state in reprisal for their work’.

   ACTIVITIES IN AUSTRALIA

   In relation to activities outside Sri Lanka, we refer the Member to the UK Upper Tribunal’s May 2021 ruling in KK and RS on Tamils engaged in activities in the UK which found that a range of political activities such as ‘attending meetings and demonstrations, holding flags or banners displaying the LTTE emblem, attendance at commemorative events, meaningful fundraising, any presence on social media, signing petitions’ may be perceived by the Government of Sri Lanka as threatening and it may trigger official harassment upon return.

   Consideration ought also to be given to the UK Upper Tribunal analysis in the same judgement of the procedure in the UK relating to obtaining a travel document for return to Sri Lanka. Although this analysis relates to procedures in the UK it is submitted that these would be similar in Australia. According to this process, a returnee would undergo an interview and be asked about his LTTE connections and sympathies and any ‘sur place’ activities. He cannot be expected to do anything other than tell the truth. It is assessed that the Government of Sri Lanka is reasonably likely to have obtained information on whether an individual is associated in any way with a particular diaspora organisation, whether they attended meetings and/or demonstrations or commemorative events such as Heroes Day, and the nature of their involvement in these events.

   Further consideration ought also be given to the consequences of carrying out similar activities in Sri Lanka. According to DFAT’s December 2021 report on Sri Lanka, local sources indicate that those participating in public gatherings and protests are often photographed, and Tamils have been arrested in 2021 under the PTA for commemoration of the war. Moreover, the PTA ‘allows arrests for unspecified ‘unlawful activities’, permits detention for up to 18 months without charge and provides that confessions are legally admissible…The PTA has been used for many years to detain people in prolonged and often arbitrary detention’. The PTA has also recently been used against Tamils. Media reported a Tamil man was arrested by Eravur police in April 2021 for allegedly sharing a photo of LTTE leader Prabhakaran. Heroes Day was banned by the current government in November 2020. In 2021 a priest who organized a celebration with the image of former LTTE leader Vellupillai Pannirabhakaran at a religious place in Jaffna to commemorate Heroes Day was arrested. Last year the Sri Lankan authorities were reported to have tightened security in the Eastern and Northern provinces of Sri Lanka ahead of Mullivaikkal Remembrance Day and people were advised to avoid the protests as a precaution.

   The Home Office’s August 2022 report also states the following in relation to the use of the PTA in relation to the sharing of social media posts:

   4.3.12 With regard to arrests under the PTA, an April 2022 OHCHR report noted:

   ‘Reports indicate that at least 70 people have been arrested under the PTA for sharing social media posts commemorating victims of the war that included LTTE images or Tamil nationalist iconography. On 18 May, police arrested 10 people near Batticaloa under the PTA for organizing a memorial event; they were finally released on bail on 8 December. A journalist, Murugupillai Kokulathasan, has been detained for 15 months since November 2020 in relation to photos of the LTTE leader appearing on his social media. The Government shared with OHCHR a directive issued by the Inspector General of Police dated 23 October 2021 providing guidance on restricting the use of the PTA and exercising greater discretion in evaluating cases such as, possession of pictures.’

   In relation to our client’s activities in Australia, his attendance at Heroes Day is genuine and consistent with his background. He has not engaged in these activities for the purpose of strengthening his claim to be a refugee. According to section 5J(3) of the Migration Act, a person does not have a well‑founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would, inter alia, conflict with a characteristic that is fundamental to the person’s identity or conscience, or require the person to conceal his or her true political beliefs. Our client cannot be expected to modify his behaviour. It is submitted therefore that there is a real risk that our client would be arrested and detained if he were to engage in the kinds of activities he has been carrying out in Australia and that this treatment would amount to persecution. The UK Upper Tribunal in KK and RS held that it is ‘abundantly clear that there is a reasonable likelihood that those detained by the Sri Lankan authorities will be subjected to persecution within the meaning of the Refugee Convention and ill-treatment contrary to Article 3 ECHR’.

   TAMIL RETURNEES

   The Home Office’s August 2022 report states in relation to Tamil returnees the following:

   7.2.2 [An Immigration and Refugee Board of Canada (IRB) COI query response dated 2 May 2022, based on a range of sources] outlined:

   ‘The Analyst noted that there have been "credible allegations" over the years of people thought to have connections to the LTTE being arrested, detained and tortured and there is "deep mistrust" among security forces of Tamil returnees… The Professor stated that if there is a reason for the authorities to believe the person was connected to the LTTE during the war, even for something such as transporting goods for a Tamil person that they did not know was connected to the LTTE, they are "taken into custody and tortured, [and face] extortion"… The Executive Director noted that "there are reports" that asylum seekers have been questioned by security personnel... According to the Professor, individuals who have been forced to return, provided the authorities have been notified of their arrival, face "vary[ing]" "degrees of harassment," depending on their ethnicity, how long they have been away, whether they are on a watchlist and whether they are perceived to have ties with the LTTE… The same source added that "ethnicity matters" and Tamils face "more scrutiny," especially those who are failed asylum seekers…’

   Evidence given at the Tribunal hearing

4. [The first named applicant] confirmed that the issuing of his current passport was unremarkable. He said it was a replacement of a passport he had previously been issued, apparently also without potentially relevant difficulty. He acknowledged that he had been able to depart Sri Lanka three times without any potentially relevant difficulty. He had also re-entered Sri Lanka twice to date without any potentially relevant difficulty.

5. The information discussed above struck me as particularly interesting because the applicants both claim to have frustrated the notorious Karuna by arranging for [the second named applicant] to move in Australia in May 2017, amidst threats from Karuna about denouncing [the first named applicant] as a former LTTE cadre. [The first named applicant] faced no potentially relevant interest from authorities when he re-entered Sri Lanka and departed again in February 2018. It is as if Karuna, though purportedly frustrated and defied, either did not follow through on his purported threat against [the first named applicant] or was comprehensively disbelieved when he did.

6. I asked [the first named applicant] about the day-to-day life of his family which, he told me, resides in Vavuniya. He said his father [is an Occupation 1], his mother is a housewife, his younger brother was completing year 12 at school and looking for a job and his younger sister is a married housewife. He said his family lives off his father’s income from [Occupation 1]. He said he adds to that income by sending money home. He said that the money he sends makes a difference to their lives back home and that it would be difficult for them to subsist if he were ever to stop sending it. Essentially [the first named applicant] indicated that his family members are all living lives that, for the purposes of this application, are entirely unremarkable. None of the oral evidence about [the first named applicant]’s family suggests that it is living with the pressure of [the first named applicant] having been denounced to Sri Lankan authorities, either truthfully or falsely, over some past affiliation of his with the LTTE, let alone by the notorious Karuna.

7. I asked if there is any evidence of his family having attempted to trace his brother’s whereabouts. He said there is not. I asked why, and he said his parents feared that if they asked anyone about his brother, he, [the first named applicant], would also be harmed. I put to him that Tamils in Sri Lanka were able to contact the Red Cross tracing service.[16] He said his parents did not have any knowledge about that. He said he did not consult the Red Cross because he would then have problems. I asked him why and he said he never used to leave his house. I put to him that according to other evidence he certainly left the house. He went to university and, according to evidence in his PV application form, he worked for [Organisation 1]. [The first named applicant]’s evidence about why his family embarked on no effort to search for his brother struck me as troubling.

   [16] “ICRC received over 16,000 requests to trace disappeared in Sri Lanka”, Tamil Guardian, 23 March 2015,

1. [The first named applicant] has repeatedly indicated that he was willing to discuss sensitive facts. He specifically foreshadowed an intended discussion regarding traumatic childhood events from the very outset of his PV application, making it very hard to conceive that he was ever reticent at least to mention his and [the second named applicant]’s claimed encounters with Karuna, even if some of these led, as claimed, to rape. Whereas he told me that the crux of his PV application lay in the relatively events concerning his wife, rather than in his history of association with the LTTE, I find it particularly concerning that his original statement of claims did not mention any harming of his wife at all.

2. Albeit with some difficulty, I can accept that [the first named applicant]’s mother may have been ill when he took his family to visit Sri Lanka in February 2018. On the other hand, the trip has the appearance of having been an annual visit taken around the same time of year just before the start of a semester in Australia. Whereas [the first named applicant] has claimed that as soon as the incident with Karuna happened in February 2018, he and [the second named applicant] organised to bring forward their flight with their daughter out of Sri Lanka, and having regard to their staying on in the country for a further ten days, I do not accept that they did anything of the kind. This adds to my concerns about the Karuna encounters having been invented.

3. Cumulatively, I give negative weight to the poor explanations given about having “believed” without ever consulting any information or talking with anyone, that the Karuna problem had gone away by February 2018, particularly when there was a young daughter in tow, no matter how dearly [the first named applicant]’s mother might have wanted to see her again. Ultimately, I find that the visit by the first three applicants to Sri Lanka in February 2018 adds to my concern that the business with Karuna never occurred.

4. Meanwhile, whereas [the second named applicant] claims her difficulty with dates, days and times is due to trauma, nerves, post-traumatic stress, the vagaries of memory over time or other vulnerability, there is a problem in her evidence that is not reasonably explained by any such factors and which remains starkly unresolved: the original claim about [the second named applicant] having sent a message to Karuna though a neighbour telling him she did not intend to co-operate regarding his inquiries after her husband (which is a common sense interpretation of “cooperate” on a plain reading of its first appearance in context in the statement.)  In her evidence to me, [the second named applicant] denied ever having sent such a message; she even appeared to deny ever having made the claim, but it remains in her original statement of claims, and was uncorrected until I asked her about it during the hearing. In the post-hearing submissions, the adviser said, “When this was put to [the second named applicant] at the hearing, she said that she did not tell anyone about Karuna’s approach, correcting the statement to the Department.” In my view she did not resolve a discrepancy in her evidence regarding a pivotal communication between herself and Karuna, in that it was about her openly defying him. The adviser went on to say, “It is submitted that any perceived inconsistency is not sufficient to undermine the couple’s central claims.” The inconsistency, however, is more than something inferred; it is actual and unresolved. I give substantial negative weight to this deficiency in [the second named applicant]’s evidence.

100.   In her original statement of claims, [the second named applicant] did not mention anything about Karuna making any pass at her, let alone raping her on two separate occasions. Her original statement was all about Karuna’s interest in her husband, but for the round-about suggestion that if she co-operated with him regarding his inquiries about [the first named applicant], he, Karuna, would not cause her “problems”. She relied on an inference she had about his demeanour, but mentioned no act or action on Karuna’s part, ending the first statement asserting the notion of “cooperating” was, in fact, “agreeing” to have sex with Karuna. I do not believe on the evidence before me that [the second named applicant] omitted any reference to rape or other non-consensual sexual acts because she wanted “to forget about the incidents and was “confused”. There was no such reticence during the delegate’s interview or in subsequent decisions or at the hearing: [the second named applicant] and [the first named applicant] were both more than forthcoming in advancing hitherto omitted claims about rape. I give this concern some negative weight cumulatively.

101.   I am not satisfied with the explanations given as to how [the second named applicant] went from saying that Karuna’s visit were “mostly” on the weekend to asserting that they exclusively occurred during the weekend. I am confident that she was improvising her evidence in the face of a challenging question at this stage in the hearing. I give this problem, cumulatively, some negative weight in this matter overall.

102.   I note that during the hearing, attempting to ascertain a timeframe within which Karuna’s alleged visits to [the second named applicant] occurred, I asked for whatever details could be provided about dates, days of the week and times of the day. The delegate submits that this is unreasonable given his clients’ individual mental and emotional health issues. I have considered that. I acknowledge that some people depending on their circumstances will have difficulty with recalling events in such precise detail. I find that eventually, both applicants gave me a more or less consistent timeframe for those three Karuna visits that allegedly occurred before [the first named applicant]’s January 2017 visit to Sri Lanka: the first visit was in late November; the second in early December; and the third visit occasioning the alleged rape in January 2017. It is not unreasonable to try to ascertain such a timeframe given the information about matters with which Karuna was reportedly preoccupied at the time.

103.   I note that [the second named applicant] has gone into some detail citing gossip or common knowledge about Karuna having had mistresses and protégées in and around Batticaloa to suggest that it would not have been out of character for him to take a prurient interest in her somehow. [The first named applicant] has also claimed that Karuna made such moves on women like this all the easier by accusing their husbands of having links with the LTTE and then having them killed. However, [the second named applicant]’s information, on its own, does not suggest that the women described were under any duress, and [the first named applicant]’s claim, as it is, sounds fanciful. For Karuna to have somehow come to know that [the first named applicant] “had travelled to Australia” is an unsupported claim and suggests that [the first named applicant] had some notoriety in some quarter, which, for reasons given below, I do not accept.

104.   In addition, nothing evidently escalated during the allege second visit by Karuna to [the second named applicant]’s home. According to the applicants’ claims, it would have been a great loss of face for a powerful man like Karuna, with bodyguards assisting, not to have achieved anything out of the first meeting with [the second named applicant] and yet he evidently achieved nothing during the second, after waiting “two or three” weeks. In this light, it seems far-fetched that he waited another “two or three” weeks to make a third visit. I find that this account of three spaced visits lacks an air of reality. There is the familiar element of a trend, given the three events, but also the ring of a tale or fable. According to [the second named applicant], Karuna gave her time to think after the first visit and found her “unco-operative during the second. Waiting three weeks to anything about strikes me, on the facts provided, as being simply illogical. I give this concern, cumulatively, some negative weight in this matter overall.

105.   I find it far-fetched to the point of being fanciful that, after the alleged first visit, [the second named applicant] either left the front door open or, at least, did not lock it, particularly after her husband had supposedly told her to try and make herself as safe as possible. [The second named applicant] told me she did not lock the door because, fatalistically, she assumed Karuna and his bodyguards would have knocked it down anyway. On the evidence before me as a whole, I do not find this explanation credible.

106.   As discussed under the protocols of s.424AA, Karuna was arrested and remanded on 29 November 2016 and remained in remand until 7 December 2017. He was then placed on weekly Sunday morning reporting conditions in Colombo until, on 1 February 2017, the requirement was changed to reporting on the last Sunday of every month.

107.   Meanwhile, counting “about a week” back from [date] January 2017, when [the first named applicant] arrived in Sri Lanka, Karuna’s third visit to [the second named applicant] would have been the weekend of [date] January 2017. Three weeks before that was the weekend of [date] December 2016, and three weeks before that was the weekend of [date] December when Karuna was widely reported to be in remand. Moving this chronology back a week, so that the last visit was two weeks before [date] January 2017 and, requiring the intervals to have been precisely three weeks, to which neither applicant has ever committed in their evidence, then Karuna’s first visit could have been on the weekend of [date] November 2016, the second (undaunted by a recent spell in jail) on the weekend of [date] December 2016 and the last, in “early” January during the weekend of [date] January 2017.

108.   Karuna would likely have been made to understand that he was required to be on his “best behaviour” or risk revocation of his bail conditions during that period. According to the applicants, however, he behaved criminally and cravenly in front of multiple witnesses on multiple occasions, more or less throughout the same period. When I first put to the applicants that Karuna was either in jail or under weekly Sunday reporting conditions in Colombo, seeming to make it very hard for him to be harassing [the second named applicant] in Batticaloa during that period, their first response was to say the information I cited could not have been not true (“fake” news) and that no such information was or could feasibly have been published inside Sri Lanka, given the government’s control of mass media. That position changed when, in post-hearing submissions, it was suggested that it would have been physically possible for Karuna to be in Batticaloa on a Saturday or Sunday night and be back in Colombo, five hours’ drive away, to report to the FCID on any Sunday. Even if he was not in jail during the first visit to [the second named applicant], its strains credulity that he was making these fortnightly or three-weekly visits at night to [the second named applicant] in Batticaloa so close to the time of day he was supposed to be reporting in Colombo on the opposite side of the country. Having given the evidence due consideration, and even allowing for margins of human error in recalling the intervals between the three visits, I give much weight in this matter to the fact that Karuna was remanded and bailed on strict conditions throughout much if not all of the period of his alleged visits to [the second named applicant].

109.   Assessing the evidence cumulatively, and having regard to the factors to which I have or have not given weight, I conclude that the claims about Karuna knowing, or knowing of, [the first named applicant] and about ever having visited [the second named applicant], let alone having raped her, not once but twice, are complete fabrications.

110.   This finding has significant implications as to the applicants’ respective standing as witnesses of truth in this matter. However, having regard to commonly reported conditions for Tamils in Sri Lanka during the civil war, there are some claims made by [the first named applicant] that I can accept.

111.   I accept that [the first named applicant] and his family were evacuated into a state-run camp during the civil war and stayed there several years until their release back into society in 2005. This was a common experience for Tamil families in the north and northeast of Sri Lanka at the time. I can accept that internees, including women and children, were vulnerable to mistreatment by the soldiers who operated the camps. I accept that [the first named applicant] suffered one grievous incident of serious abuse when he was ten to twelve years old, as claimed.

112.   I accept that [the first named applicant] had a brother who is deceased. I can accept that he died during or as a result of the civil war. Beyond that, however, there are problems, even though I can accept the general position that Tamil families, at and after the end of the civil war, would have been reticent to report publicly the “missing” status of close family members who had joined the LTTE. Even families that had no connection to the LTTE were reportedly scared of joining families that did in seeking information about the missing. There is also the fact that many LTTE graves and whole cemeteries were bulldozed and vitiated from public sight by the military, some even built over, making the idea of a search seem to many families a pointless exercise to begin with. The problem in this case is that there are inconsistencies in [the first named applicant]’s evidence about having joined and worked the LTTE for his own part; these give me caution about accepting that his brother joined the LTTE either.

113.   [The first named applicant] has indicated that his treatment in the evacuee camp as a child motivated him to join the LTTE immediately upon his completion of secondary school studies. However, notwithstanding the facts that I have accepted above, I have found [the first named applicant] an unreliable witness in his connecting of facts with each other. Accordingly, I find that I cannot give weight to the suggestion that joining the LTTE was motivated, as it were on principle, by the suffering of direct harm from its opponents, who were members of the army.

114.   Although there would have been just enough time to finish high school, join the LTTE, suddenly discover that that had bene a mistake, become caught up in the chaos attending the LTTE’s virtual annihilation, and commencing university, I find this scenario as improbable as the one about Karuna managing weekend visits to [the second named applicant] in the middle of everything else he was dealing with at the time. I give much more weight to the evidence suggesting that [the first named applicant] completed his secondary studies in 2008 with a view to moving straight on, as soon as practicable, to university.

115.   I am not satisfied that [the first named applicant] has ever resolved the inconsistencies in his evidence about LTTE weapons training and the duties to which he claims he was assigned. I asked myself if [the first named applicant] might merely have extrapolated from an actual non-combatant role in the LTTE  to enhance his claims in this application. I also considered whether he might indeed have had weapons training but, in the course of this application, downplayed his true role due to Australia’s official stance regarding the LTTE as a terrorist group. Ultimately, however, I am not satisfied on the evidence before me that he had any role in the LTTE or that he ever had any interest in interrupting his path in education to join it.

116.   Further to this, [the first named applicant]’s evidence of the apparent ease with which he was able to enter university in 2009, obtain successive passports and leave and re-enter Sri Lanka without attracting any potentially relevant concern on the part of the authorities there leads me to conclude that he was never suspected of being an LTTE member or even the close relative of a person who had been a member of the LTTE.

117.   Having considered the evidence cumulatively, I am not satisfied that [the first named applicant] or his brother ever joined the LTTE. I am not satisfied that he will ever be imputed in the reasonably foreseeable future to have joined the LTTE in the past.

118.   I can accept that [the first named applicant] attended two commemorations of Martyrs’ (or Heroes’) Day here in Australia. I am prepared to accept that he did this not merely to enhance his claim to be a refugee (ref. s5J(6) in the Attachment below), as Martyrs’ (or Heroes’) Day is a time for Tamils genuinely to come together as a community en masse, both here and, evidently under variously state-managed conditions, in Sri Lanka. I can accept that there is a genuine emotional and social element in this conduct. However, I am not satisfied on the evidence before me that [the first named applicant]’s conduct in this regard will lead, separately or cumulatively, to a real chance of [the first named applicant] or members of his family being persecuted in Sri Lanka in the reasonably foreseeable future. In addition, given the evidence of Martyrs’ Day commemorations being permitted in Sri Lanka, if somewhat managed or curbed in some locations, I am not satisfied that [the first named applicant] would have to modify his behaviour such that modification would rise, inter alia, to “conflict with a characteristic that is fundamental to the person’s identity or conscience, or require the person to conceal his or her true political beliefs” as set out in s.5(3) of the Act.

119.   I am not satisfied on the evidence before me that the applicants face any serious or substantial imputations of LTTE affiliation either from state or non-state parties in Sri Lanka.

120.   I have considered the claim to the effect that [the second named applicant] “continues to be at risk of gender-based sexual violence, especially from those in positions of authority, such as Karuna, and that there is no adequate protection available to her.” True, this claim cites Karuna as an example rather than being entirely dependent on his alleged actions in 2016-2017. However, on the evidence before me, I am not satisfied that [the second named applicant] faces a real chance of gender-based sexual violence, including from person in positions of authority, let alone Karuna, or that there is no adequate protection available to her. On the evidence before me, this finding extends to her daughter.

121.   I am not satisfied on the evidence before me that there is a real chance of any of the applicants suffering serious harm in Sri Lanka for separate or cumulative reasons of being “returnees” or “failed asylum seekers” or, in the case of the two minors in this matter, “children of persons who applied for asylum abroad”.

122.   I acknowledge that there is some discrimination against Tamils in Sri Lankan society and that this manifests in different ways. However, I am not satisfied on the evidence before me that any of the applicants including the son [the fourth named applicant] face a real chance of serious harm amounting to persecution for separate or cumulative reasons of their Tamil ethnicity. In coming to this conclusion I give some weight to the evidence of [the first named applicant]’s own family getting on with their lives in Sri Lanka. I also give weight to the ease with which [the first named applicant] was able to proceed from secondary school to university notwithstanding his ethnicity.

123.   I am not satisfied on the evidence before me that [the first named applicant] will be unable to function let alone work and protect his family due to “trauma” from his time in the evacuee camp. In coming to this conclusion I give weight to his evident success in education in Sri Lanka and his ability to work part-time before he came to Australia.

124.   Given the findings above regarding the Karuna visits, I am not satisfied that the daughter [the third named applicant] is " ‘traumatised’ by what she saw back in Sri Lanka.” I accept that the two applicant children have become enculturated in Australia, and would sustain some disruption, for example, in a change of educational environments, but I am not satisfied that any of these things give rise to a real chance of their suffering serious (or, for that matter, significant) harm in Sri Lanka. I do not accept on the evidence before me that the two applicant children neither speak nor understand Tamil. I give weight to the evidence of members of their extended family having welcomed them in the past in finding that the applicant children would adapt.

125.   On the evidence before me, I am not satisfied that any of the applicants faces a real chance, separately or cumulatively, of being persecuted in Sri Lanka in the reasonable future, let alone for any of the five reasons cited in s.5J(1)(a) of the Act. Their claimed fears of being persecuted are not well founded. They are not refugees.

126.   For the reasons given above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(a). 

Findings in relation to s.36(2)(aa) of the Act

127.   Having concluded that applicants do not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) 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. Relevant to this, s.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 (ref. MIAC v SZQRB [2013] FCAFC 33).

128.   “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.

129.   Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.

130.   “Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.

131.   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.

132.   Accepting that applicants are all nationals of Sri Lanka, I find that Sri Lanka is the receiving country in this matter.

133.   The applicants’ claims to complementary protection are essentially the same as their refugee claims. Those claims have failed due to lack of credibility and for not meeting the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, the applicants’ protection claims can no more succeed as complementary protection claims than they have as refugee claims.

134.   On consideration of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Sri Lanka, there is a real risk that any of the four applicants will suffer significant harm as exhaustively defined under s.5(1) of the Act.

135.   Accordingly, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

Conclusions

136.   For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore they do not satisfy the criterion set out in s 36(2)(a) or (aa) for protection visas. It follows that they

DECISION

137.   The Tribunal affirms the respective decisions not to grant the respective applicants protection visas.

Luke Hardy
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…