1831970 (Refugee)

1831970 (Refugee) [2023] AATA 1292 (17 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Chellappah Ambikaipalan (MARN: 9905055)
CASE NUMBER:  1831970
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Brendan Darcy
DATE:17 February 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 17 February 2023 at 11:11am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Circuit Court remittal – Tamil ethnicity – returnee who has a record of Tamil Tiger training in the Northern Province – imputed political opinion – anti-regime – supportive and sympathetic of LTTE militants – sur place activities – particular social group – former LTTE members who are Tamil from the Northern Province – low-profile – employment of torture – behaviour modification – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2
CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of the Democratic Socialist Republic of Sri Lanka (Sri Lanka), applied for the visa on 1 August 2012. A delegate acting on behalf of the Minister refused to grant the applicant a Protection visa on 3 February 2014.
The applicant applied to have the refusal decision reviewed on 7 February 2014 by the Tribunal. On 26 February 2016, the Tribunal affirmed the decision not to grant the applicant a Protection visa.
The applicant applied to have the Tribunal’s decision (1401941) judicially reviewed by the Federal Circuit Court of Australia (FCCA).
On 19 February 2018, the FCCA remitted the Tribunal’s decision: [case citation]. The basis of the remittal was that the Tribunal failed to properly consider the applicant’s scarring as an important integer in the applicant’s claim. This, the Federal Circuit Court concluded, amounted to jurisdictional error.
The matter (now numbered 1831970) was reconstituted to this presiding Member.
The applicant appeared before the Tribunal on 4 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review.
RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether there is a real chance that, if the applicant returns to Sri Lanka, he will be persecuted for one or more of the five reasons set out in the Refugee Convention for the purpose of s. 36(2)(a) of the Migration Act, and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm for the purpose of s. 36(2)(aa) of the Migration Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The applicant was born on [date], in [Location 1], Jaffna District, Northern Province, Sri Lanka.
As per his Protection visa application, the applicant lived in [Location 1], Jaffna between [year] and January 1998. From January 1998 to December 2002, he lived in [Location 2], in [District 1]. He returned to [Location 1] in January 2003 and lived there until December 2006. He subsequently returned to [Location 2], in [District 1] in January 2007 and lived there until [year]. From [year] to July 2012 the applicant lived in [a named] camp, in [Location 1].
The applicant departed Sri Lanka illegally [in] July 2012 and applied for an Australian Protection visa on 27 November 2012. His departmental file number is ([number]).
The applicant was subsequently invited to attend a Departmental interview on 7 August 2013.
The protection visa application was denied by a delegate of the Minister on 3 February 2014.
A review of this decision was commenced on 11 February 2014 with the Refugee Review Tribunal.
A hearing was scheduled before the Administrative Appeals Tribunal on 19 November 2015. Due to complications, the applicant did not attend the hearing. A decision to dismiss the application due to non-appearance was made by the presiding member on 20 November 2015.
On 4 January 2016, the Tribunal received a statutory declaration by the applicant which included a number of additional details and claims.
The review was reinstated on 17 December 2015 and a hearing was successfully conducted on 11 January 2016.
An untranslated document was submitted to the Tribunal during this hearing. A further hearing was held on 28 January 2016. Both hearings were conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review by his registered migration agent, who attended the Tribunal hearings on 11 January 2016 and 28 January 2016.
The Tribunal affirmed the decision not to grant the applicant a Protection visa on 26 February 2016.
On 23 March 2016, the applicant filed an application for judicial review of the decision made by the Tribunal on 26 February 2016, with the Federal Circuit Court.
A writ of certiorari was issued quashing the decision by the Tribunal to affirm the decision of a delegate to refuse to grant the applicant a Protection visa ([case citation]). The matter was remitted for further consideration 19 October 2018. A valid application for review was lodged with the Tribunal on 31 October 2018
Claims at the time of application
The applicant presented his claims in his Protection visa application on 27 November 2012, a Departmental Interview he attended on 7 August 2013, a statutory declaration made on 23 November 2012 and 4 January 2016, and at Tribunal hearings held on 11 January 2016 and 28 January 2016. They are summarised as follows:
·     In early 2009, the applicant resided with his family resided in [District 1];
·     Two years beforehand, the applicant’s family had moved there to avoid the conflict between the Tamil Tigers and the Sri Lankan army. The applicant’s father was a fisherman and he continued to fish while at [Location 2]. [Location 2] was relatively safe when the family moved there at the time;
·     In May 2009, the Sri Lankan army defeated the Liberation Tigers of Tamil Eelam (LTTE or the Tamil Tigers);
·     It was at this time that the applicant’s family returned to Jaffna District. They travelled by sea back to [Location 1]. However, the Sri Lankan navy intercepted the boat. Because they had been returning from [District 1], the sailors detained the family in a military camp;
·     The applicant spent one month in the military camp. They were then separated from their family and placed in [the named] camp. The applicant was separated because he was a young Tamil man and was suspected to be a supporter and a fighter for LTTE. This is how the army explained it to the applicant and the rest in the camp. There were about 250 young Tamil women and men in the camp.
·     While the applicant was in [the camp], he rarely saw his family. They were kept in the military camp where the applicant had been originally. However, he was able to complete his studies whilst interned;
·     The applicant was released from the camp in June 2010 with the assistance of UNICEF;
·     The applicant returned to [Location 1] where he shared a house with his family;
·     A month after release, officials from the Central Investigations Department (CID) came to the applicant’s house and took their ID documents and created a file;
·     The CID then demanded that the applicant report to the CID offices twice a week. The applicant was required to report this way until they left;
·     At least once a month, the CID interrogated the applicant. This would last five or six hours. They always asked questions about where he had travelled and what he was doing in [District 1] and whether he supported the LTTE;
·     In early 2012, the applicant complained to UNICEF about the harassment he experienced. The UNICEF office was in Nallor, Jaffna District. UNICEF told the applicant that he did not have to attend any more interviews and they were going to raise his concerns with the CID;
·     When the applicant did not attend a meeting in March of this year, four CID officials came to his house at night. They demanded an explanation about his absence from the previously scheduled meeting. He told them that UNICEF said he did not have to attend. The CID told him that it was not the case and that he had to attend the next interview at 8:00AM the next morning;
·     When the applicant arrived at the office the CID placed him into a small room. He was there for two hours without anyone interviewing him. When the CID arrived, they began interrogating the applicant and told him to ignore UNICEF as it had no jurisdiction over them and other Sri Lankan authorities;
·     The applicant was then asked to stand with his hands on the wall. The CID officials then started to beat the applicant with a cable across the back of his legs;
·     The applicant was detained against his will until that night. He was only released when his parents went to the CID office to enquire of his whereabouts;.
·     With the injuries he sustained, it took the applicant a month to heal. He still has the scars from the beating on his legs;
·     He continued to attend meetings with the CID for fear of further beatings. He did not seek the assistance of UNICEF again. However, his parents did discuss the matter with UNICEF. UNICEF gave them the same advice they had given the applicant;
·     After the beatings, the applicant began making arrangements to leave Sri Lanka for Australia. The husband of his sister, [Mr A], recommended he travel to Australia as it was a safe and peaceful country who accepts refugees;
·     Since leaving for Australia, the CID has enquired about the applicants whereabouts about two or three times. Neighbours have informed the CID that the applicant is in Australia;
·     The applicant fears they will be seriously harmed or killed by the Sri Lankan government or affiliated agencies, including the CID and the Sri Lankan Army if he were to return to Sri Lanka as he is Tamil and will be imputed with a pro-LTTE profile;
·     The applicant fears that he will be punished, tortured and killed for complaining about his brutal treatment to an international organisation or to the Australian authorities. He has already experienced torture at the hands of CID officials who severely punished the applicant for seeking assistance;
·     The applicant fears he will suffer severe hardship because the authorities in Sri Lanka will continue to harass him and continue to control the movement of young Tamil men, such as himself, who are suspected as supporting the LTTE. The security arrangements are impeding the applicant in gaining further education and other opportunities;
·     The applicant does not believe the Sri Lankan authorities will protect him or his family because it is the Sri Lankan authorities that he fears. The CID actively intimidates and targets the applicant with harassment and accusations of supporting the LTTE and for discussing with international agencies ClD abuses against him;
·     The CID has records of the applicant and has been actively searching for him. The authorities know he has left the country without permission. If he is returned, the authorities will easily identify him as a suspected Tamil Tiger sympathiser;
·     The applicants national ID cards states that he is from a Tamil area, thus it is extremely difficult and dangerous for him to live anywhere else in Sri Lanka, where he will be accused as supporting the LTTE;
·     The authorities continue to allow systematic discrimination and persecution of Tamils throughout Sri Lanka and offer no meaningful protection for the applicant.
A delegate acting on behalf of the Minister refused to grant the applicant a Protection visa on 3 February 2014.
The applicant appeared before the Tribunal on 4 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. In attendance at the hearing was the applicant’s spouse, [Ms B], who claimed to be an Australian permanent resident.

On 18 October 2022, the Tribunal received a legal submission from the applicant’s representative. There were also a number of health records pertaining to the applicant’s spouse.
No further submissions were received by the Tribunal. There were no non-disclosure certificates attached to the Departmental or Tribunal files.
ASSESSMENT OF CLAIMS AND FINDINGS
Country of reference
The applicant claims to be a citizen of Sri Lanka and has consistently claimed this.
With no evidence to the contrary, the Tribunal finds that the applicant is a citizen of Sri Lanka, that Sri Lanka is the applicant’s country of nationality for the purposes of the Refugees Convention, and that Sri Lanka is his receiving country for the purposes of complementary protection.
Third country protection
There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Accepted circumstances
When assessing the credibility of applicants, it is important to bear in mind the difficulties often faced by asylum seekers. The Tribunal finds that there is a strong thread of consistency in his entry interview, in his written claims, in his claims before the department in 2013 and in his oral testimony at hearing. The Tribunal also notes the country information about events in Sri Lanka strongly indicate the incidents claimed by the applicant are plausible in most cases.
The applicant has made a set of claims whose credibility was tested during the scheduled hearings by the previous Member and this presiding Member.
While the Tribunal did note the earlier decision did not accept a number of claims not advanced at the time of application, most notably that the applicant was forcibly recruited into the LTTE, the Tribunal has taken into account that he may be a survivor of past trauma and torture as claimed. The Tribunal also noted that the applicant’s occasionally vague testimony and detached demeanour throughout the hearing. He also has limited educational attainment.
Overall, the Tribunal found the applicant to have provided consistent written and oral testimony.
The Tribunal makes the following findings about the applicant’s personal characteristics and past incidents:
·     The applicant was born in [year] in Northern Province;
·     The applicant’s former area of usual residency was in [District 1] in the Northern Province;
·     The applicant’s father, mother and [number] sisters reside in Sri Lanka, while he has one brother residing in [Country 1];
·     The applicant and his family attempted to depart from the Jaffna peninsula to India in January 2009 to avoid forcible LTTE recruitment but were intercepted by the LTTE and taken to LLTE run camps in LTTE controlled areas;
·     Against his will, and to avoid others in his family being forcibly recruited, he joined the LTTE;
·     The applicant attempted to evade the LTTE with his mother a second time but was again intercepted and detained for another month in an LTTE camp in April 2009;
·     The applicant then received training which included first aid to treat wounds and how to handle weapons but did not participate in combat;
·     After the war in May 2009, the applicant spent various periods in a military camp in [location] and [location] with this family, and when he was later separated from his family while detained at other camps including the Rehabilitation Centre at [location] and [location]. (The Tribunal notes that the applicant has provided different timelines for these periods of internment, but it does not place significant weight on those discrepancies);
·     The applicant was provided with a Magistrates’ court order from [Town 1] acknowledging his release on 22 April 2011 from a rehabilitation programme and that the document submitted was genuine;
·     The applicant reunited with is family after his release in August 2011 at [Town 2] in Jaffna peninsula and then moved to [Location 3] in Eastern Province;
·     While at [Location 3], the CID visited his home to make enquires of his and others whereabouts and insisted the applicant visit the DIB offices on a weekly or regular basis;
·     When the applicant stopped reporting to the CID, on the advice of UNHCR officials, the applicant was apprehended by the CID and questioned;
·     During this detention, the applicant was beaten or whipped with wire or electrical cord which broke the skin on the back of his thighs;
·     The scarification has since faded, and is not relevant to the Tribunal’s findings; and
·     After his release, the applicant travelled to Colombo from where he arranged to illegally depart Sri Lanka [in] July 2012.
With regard to any sur place activities, the Tribunal also accepts the applicant has attended Mullivaikkal Remembrance Day events in Australia, and has posted those photographs of his attendance on his [social media account].
Refugees Convention findings
The applicant has a number of characteristics which cumulatively lead me to conclude that he has a well-founded fear of persecution.
Firstly and saliently, the applicant is a Tamil who is Tamil speaking. He spent considerable time in the LTTE controlled area [named] - the locus of the final and bloody battle of the war in May 2009. As a youth, the applicant was forcibly recruited into combat training for the LTTE. At the end of the civil war, the applicant and his family were interned into various IDP camps and rehabilitation centres over a sustained period between May 2009 to August 2011. It was in the nature of these camps that the authorities collected names and biodata of interned persons. The applicant was required to participate in a de-radicalisation rehabilitation program on the basis that he was trained by the LTTE. As the submitted court order indicates, this participation was recorded.
After his release, the applicant had originally complied with reporting requirement imposed on him by the authorities, but later did not comply on the advice of the UNHCR. As discussed in the hearing, it was odd to take such risky advice. Nonetheless, the Tribunal accepts that this non-compliance led to a violent and torturous encounter with CID. After this, the applicant resolved to depart the country without a passport or permission, in breach of Sri Lanka’s Immigration and Emigrants Act.
DFAT assesses that former LTTE members face no legal barriers to participating in public life, including politics. 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. ‘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. 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.
The country information as presented by DFAT generally indicates that the majority of Tamil returnees, including illegal departee and those with past links to the LTTE, are not at risk of serious harm on return to Sri Lanka.
DFAT then assesses Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their security risk profile. DFAT assesses that the 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.⁵
Having carefully considered the applicant’s personal circumstances, the Tribunal finds that it cannot conclude that the risk that he will suffer serious harm as a returnee who has a record of Tamil Tiger training in the Northern Province, if he returned to Sri Lanka, is remote or far-fetched. The Tribunal assess that this real chance of serious harm to the applicant will foreseeably entail acts of coercion during interrogation by CID on arrival and that he would be subject to longer than usual custody, even imprisonment without charges, than other failed asylum seekers who illegally departed Sri Lanka. In this regard the Tribunal notes Freedom House reported in February 2019 that police and security forces are known to engage in abusive practices, including extrajudicial executions, forced disappearances, custodial rape and torture, all which (they contend) disproportionately affect Tamil Sri Lankans.
For returnees DFAT reports that police undertake an investigative process to confirm a person’s identity which might include interviewing the returnee, contacting the police in their home area, contacting neighbours and family, and checking criminal and court records.[1] The Tribunal considers that this investigative process will likely flag the applicant as a Tamil from [District 1] who has been of adverse interest to the Sri Lankan authorities in the past.
[1] DFAT Country Information Report, Sri Lanka 23 December 2021 at [5.17]
The UK Home Office reports that since 2009, the Sri Lankan government’s security policy has become increasingly sophisticated and is based on intelligence and the comprehensive surveillance of its Tamil citizens, as well as the monitoring of the Tamil diaspora. Much of this information was gathered in the period after the conflict during which LTTE members and supporters were detained in camps and interrogated. The UK Home Office also reports that the Sri Lankan authorities have a continuing interest in the surveillance of diaspora events.[2]
[2] UK Home Office, Country Policy and Information Note, Sri Lanka: Tamil Separatism June 201
Considering these matters cumulatively, and also taking into account the current country analysis provided in the recent Upper Tribunal (Immigration and Asylum Chamber) case of KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 00130 (IAC) in particular paragraphs [324] to [358], there is a risk that is more than remote.
The likely records about the applicant’s background as a Tamil who was detained in IDP camps at the end of the war, and who was young enough to have been trained by the LTTE, sees a real chance of the applicant being imputed with a political opinion which is anti-regime or supportive and sympathetic of LTTE militants. This imputation or suspicion will be deepened by the applicant’s departure soon after the civil war ended. It will also be heightened by the likelihood of his sur place activities among the diaspora of Tamil Sri Lankans which is known to be monitored by members of Sri Lanka’s diplomatic corps.
The Tribunal accepts that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members, supporters and other separatists, including ‘stop’ and ‘watch’ electronic databases. There is a strong likelihood the authorities will discover that the applicant was a former resident in an internment camp in Sri Lanka’s Northern Province. The applicant is then likely to become of interest to the Sri Lankan security services as a former combatant or suspected LTTE supporter.
While he may well be one of the low-profile former LTTE members who comes to the attention of the Sri Lankan authorities on arrival, , and thus may well be detained and interrogated on the basis of a former rehabilitated LLTE combatant and suspected for separatist activities while in Australia’s diasporic Tamil community. seen as suitable for rehabilitation.
The Tribunal is troubled that country information reflects that torture was habitually employed by the authorities against those held in custody for any length of time and that these practices unfortunately continue to this day, even if at a reduced rate of incidence.
Given this cumulative profile of the applicant, the Tribunal is concerned that there is a real chance that inquiries by the authorities with respect to the applicant’s re-entry into the country will predictably escalate into adverse risk profiling and associated questioning with respect to the applicants past LTTE involvement. Further the Tribunal is concerned that the risk of this escalation in inquiries is that the applicant becomes incarcerated for a longer period of time while such inquiries are undertaken. Country information clearly reflects that Tamil men that are associated with past LTTE activities in the Northern Province and associated with ongoing activities in the Tamil diaspora which threaten the return of violent Tamil separatism, are held in incarceration for any length of time is at an appreciable risk of serious harm in the form of torture, the loss of liberty and/or cruel treatment by the nature of the incarceration.
Taking all of the above considerations into account, the Tribunal is satisfied that any future harm or threats of harm the applicant may experience, would amount to serious harm as contemplated in the Act. As such, and with regards to the above considerations, the Tribunal finds that there is a real chance of serious harm to the applicant upon his immediate return, should he be required to return to Sri Lanka for reasons of his imputed political opinion either now or in the reasonably foreseeable future from the Sri Lankan authorities. The Tribunal finds that this would constitute systematic and discriminatory conduct and would amount to persecution. The Tribunal finds that the applicant’s membership of a particular social group, namely, former LTTE members who are Tamil from the Northern Province, would be the essential and significant reason for the persecution.
As the accepted risk of harm feared is at the hands of government authorities, the Tribunal finds the applicant cannot access state protection. The Tribunal is satisfied, in light of the country information, that there is no non-state actor that the applicant could access protection from. Furthermore, the state does not offer an appropriate system of criminal law, a reasonably effective police force and an impartial judicial system given the clear risk of torture for persons incarcerated, with no means of redress as evidenced by the DFAT report which states that:
No legal mechanism exists to initiate independent investigations for state violence,
including extrajudicial killings. Numerous historical cases of extrajudicial killings
[3] DFAT Country Information Report, Sri Lanka, 23 December 2021, p.38
remain unsolved.[3]
And:
DFAT has no evidence that torture is state-sanctioned but sources claim with some
confidence that the Sri Lankan state is not taking adequate measures to eradicate
[4] Ibid, p. 41
such treatment, while increasingly creating an environment of impunity for its agents accused of violence.[4]
The Tribunal finds that, given the above, effective protection measures are not available to the applicant in Sri Lanka.
In the absence of effective internal protection, the Tribunal finds that the applicant faces a real chance of persecution for reason of his imputed political opinion in combination with his ethnicity as a Tamil from the Northern Province, if he returns to Sri Lanka now or in the reasonably foreseeable future. As the feared persecution is from the government authorities, and the Tribunal has found that there is a real chance the applicant will be subjected to serious harm immediately upon his entry into the country, the Tribunal finds that the real chance of persecution relates to all areas of Sri Lanka
Having considered the applicant’s claims cumulatively, for the reasons given above, the Tribunal is satisfied that there is a real chance he will suffer persecution involving serious harm from members of the CID, for one of the Convention reasons, if he was to return to Sri Lanka, now or in the foreseeable future. Therefore, the applicant will be unable, or unwilling because of fear, to avail himself or herself of the protection of his country.
In light of this information, the Tribunal considers there to be a real chance the applicant will be subjected to mistreatment constituting serious harm during that process of detention and questioning. It follows that there is a real chance the applicant will face serious harm amounting to persecution if returned to Sri Lanka, now or in the reasonably foreseeable future, for the essential and significant reasons of his ethnicity and his political opinion actual or imputed as the Tribunal discussed above.
The Tribunal has considered whether the applicant faces a heightened risk arising from the political and economic crises in Sri Lanka in the last year. However, on this occasion, the Tribunal is not persuaded that the relationship between Tamils and Sinhalese or Tamil communities and Sri Lankan authorities has deteriorated, even under declared States of Emergency. Nor is the Tribunal satisfied that the economic and political crisis increased vigilance for Tamils who have forced to return, leading to a higher frequency of aggressive interrogations or longer-term detention. While there are reports of the PTA which enables detention of suspected terrorists without judicial oversight, to be withdrawn and replaced by the various government, it has yet to occur.
Having outlined this, there is no available country information suggesting that the authorities have sufficiently reduced their suspicions of Tamil returnees, and, when triggered, will not use the full force of the law. This is despite the passage of time since the end of the civil and the demobilization of the LTTE in 2009. As the Human Rights Council of the United Nations pointed out:
In March 2021, new “de-radicalization” regulations were issued that permit arbitrary administrative detention of individuals for up to two years without any legal proceedings for the purposes of ‘rehabilitation’ in relation to violent extremism. The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism and other experts have warned that the regulations may jeopardize the rights and liberties of persons who may be detained arbitrarily, especially religious and ethnic minorities, and may curtail political dissent with no effective due process guarantees. Civil society organisations obtained a stay order on their implementation while the Supreme Court considers a fundamental rights petition against the regulations.[5]
[5] Human Rights Council, Forty-ninth session, 28 February–1 April 2022, Agenda item 2 Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General, Promoting reconciliation, accountability and human rights in Sri Lanka, paragraphs 45 and 4
As a result, the Tribunal finds that because of being removed from Australia to Sri Lanka, there is a real chance that the applicant will suffer serious harm by reason of him being an ethnic Tamil from Northern Province imputed to be or connected with the LTTE.
Additional finding: behaviour modification

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. 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, are also banned.⁴
Even during the 2022 economic and political crisis which engulfed Sri Lanka, on 12 May 2022, during a State of Emergency, police told Tamils gathered to commemorate wartime dead in Mullivaikkal, that the police had orders to shoot anyone engaging in robbery or property damage.[6]
[6] ''We have orders to shoot' - Sri Lankan police threaten Tamils gathering in Mullaitivu', Tamil Guardian, 12 May 2022, 20220513162745
It is accepted that the applicant has been involved in Mullivaikkal Remembrance Day events in Australia and that he would attend such ceremonies in Sri Lanka, should they be sufficiently safe to attend. The Tribunal is also satisfied that the applicant did not participate in these sur place activities solely for migration purposes.
When considering whether a fear of persecution is well-founded, questions may arise as to the consequences of activity that an applicant claims he or she will pursue in the future (for example religious or political activity, or publicly acknowledging their sexuality).
In Appellant S395/2002 v MIMA the Tribunal had found that the applicants were homosexuals, that homosexual men in Bangladesh were a particular social group, and that such people could not live openly without facing a range of problems including, for example, the possibility of being bashed by the police. However, it found that the applicants had lived discreetly without experiencing any more than minor problems with anyone outside their own families and that they would live discreetly in the future if returned to Bangladesh. Consequently, they would not suffer serious harm and therefore did not have a well-founded fear of persecution. By majority,[7] the Court held that the Tribunal had erred by failing to consider whether the need to act discreetly to avoid the threat of serious harm constituted persecution, and further, by failing to consider whether the appellants might suffer serious harm if members of the Bangladesh community discovered that they were homosexuals.
[7] Appellant S395/2002 v MIMA (2003) 216 CLR 473 per McHugh, Kirby, Gummow and Hayne JJ, with Gleeson CJ, Callinan and Heydon JJ dissenting essentially because of their different view of the case the appellants had sought to make.
Justices McHugh and Kirby explained that:
[t]he Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps – reasonable or otherwise – to avoid offending the wishes of the persecutors. Nor would it give protection to membership of many a “particular social group” if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution. Similarly, it would often fail to give protection to people who are persecuted for reasons of race or nationality if it was a condition of protection that they should take steps to conceal their race or nationality.[8]
[8] Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [40], [80].
The Tribunal is therefore mindful that it exercises caution in determining that the applicant may avoid persecution by changing their behaviour in a way that does not require modification of a Convention-related attribute.
Attendance at the 12 May Remembrance event or other commemorations for the Tamils who have fallen during the civil war in Sri Lanka are therefore relevant in the Tribunal’s assessment about a well-founded fear of persecution. Such commemorative ceremonies cannot be performed privately or discreetly. The view amongst many in authority and among Sinhalese Sri Lankans in general is that such commemorations are provocative, counterproductive in building national unity and/or demonstrative of pro-LTTE or separatist political opinions. Threats of persecution or ‘shoot to kill’ orders under the auspices of States of Emergency or any other pretext are designed to create a chilling effect on political expression.
With Appellant S395/2002 v MIMA in mind, the Tribunal makes a further finding that the applicant has a well-founded fear of persecution as he would be taking unreasonable steps to modify his behaviour so as to avoid a real chance of persecution in Sri Lanka which would conflict with his conscience and conceal his true political beliefs.
Conclusion
For the reasons above, the Tribunal finds that because of being removed from Australia to Sri Lanka, there is a real chance that the applicant will suffer serious harm by reason of him being an ethnic Tamil, and being imputed to be or connected with the LTTE.
Also, as the perpetrators of the harm feared by the applicant are the Sri Lankan authorities, the Tribunal finds that state protection will not be available to the applicant and that the real chance of persecution relates to all areas of Sri Lanka.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention.
Therefore, the applicant satisfies the criterion set out in s.36(2)(a).
As mentioned above, there is no third country protection in which the applicant can enter and reside pursuant to s 36(3).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Brendan Darcy
Member

[2023] AATA 1292

17 February 2023

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