1903154 (Refugee) - [2023] AATA 2102

1903154 (Refugee) [2023] AATA 2102 (31 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Clare Hughes
CASE NUMBER:  1903154
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Peter Haag
DATE:31 May 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 31 May 2023 at 5:12pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Court remittal – ethnicity and imputed political opinion – Tamil associated with LTTE – father died after beating by soldiers and brother disappeared – applicant interrogated and beaten – returned failed asylum seeker – wife and Australia-born children’s protection visa on other grounds – participation in activity group with high profile in Tamil community – group’s use of insignia associated with LTTE – not politically active, but supporter – community activity not for purpose of strengthening claim – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
BKQ16 V Minister for Immigration [2018] FCCA 137
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 dependants.
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 Sri Lanka applied for the visa on 1 February 2013 and the delegate refused to grant the visa on 7 January 2014 on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
On 10 January 2014 the applicant applied to the Tribunal for review of the delegate’s decision and on 14 May 2015 the applicant attended a hearing at the Tribunal. The applicant attended a subsequent hearing at the Tribunal on 22 April 2016 and on 26 May 2016 the Tribunal affirmed the delegate’s decision.
Judicial review
On 29 January 2018 the Federal Circuit Court dismissed an application for judicial review of the Tribunal’s decision.
On 29 January 2019 the Federal Court set aside the Federal Circuit Court’s decision and remitted the matter to the Tribunal, constituted by a different Member, for reconsideration according to law.
The applicant appeared before the Tribunal on 10 May 2023 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.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.
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Applicant’s background
In his application for a protection visa, the applicant claims to be a citizen of Sri Lanka, born on [Date] in [Village], [Town], Jaffna District Sri Lanka. He claims to be a Hindu of Tamil ethnicity who can speak, read and write in Tamil and can speak and read in [Country 2 language].
In his visa application, the applicant provided details of his mother, who at the time of the visa application was a citizen of Sri Lanka residing in [Village], [Town], Jaffna District Sri Lanka. He listed his Father as deceased. He listed a brother and a sister whose citizenship and residence details were not provided and another brother whom he listed as missing since [October] 2000. He listed a further [Number] sisters as citizens of Sri Lanka residing in [Village], [Town], Jaffna District Sri Lanka.
At the time of his visa application, the applicant was residing in [Suburb], Queensland, Australia from [January] 2013. Upon arrival in Australia, the applicant was in immigration detention in Australia between [July] 2012 and [January] 2023. Before arriving in Australia, the applicant was in transit between [date range in] July 2012 and before that the applicant was residing in [Country 1] between [June] 2012 and [July] 2012. Between [date range in] June 2012, the applicant was residing in [Location 1, Country 2] and between [October] 2009 and [June] 22012 the applicant was residing in [Location 2, Country 2]. Prior to this, the applicant resided in Colombo, Sri Lanka between [October] 2007 and [October] 2009 and [Village], [Town], Jaffna District Sri Lanka between [Birth] and [October] 2007.
The applicant stated in his visa application that he attended primary school between [year range] in [District], Sri Lanka and secondary school between [year range] in [Town], Sri Lanka.
At the time of his visa application, the applicant stated that he was currently unemployed. He listed being previously employed in [Work sector] between [December] 2009 and [June] 2012 in [Location 3, Country 2]. Prior to this, the applicant was employed at a [Workplace] in [Location 4, Country 2] between [October] 2009 and [December] 2009. The applicant listed being unemployed between [June] 2007 and [October] 2009 after being employed as a contractor in [Village], Jaffna, Sri Lanka between [December] 2006 and [June] 2007. Before this, the applicant was employed in [Work sector] between [January] 2005 and [December] 2006 in [Village], Jaffna, Sri Lanka.
Applicant’s Identity
With his protection visa application, the applicant provided the department with copies of his Sri Lankan Passport, Birth Certificate and Sri Lankan National ID card.[1]
[1] Department file [Reference], Doc ID 5553558, folios 29, 28-27, 23
The documents provided by the applicant are consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that he is a citizen of Sri Lanka, and as such his protection claims will be assessed against Sri Lanka as the country of reference and ‘receiving country’ respectively.
Migration History
[In] December 2008 the applicant travelled to [Country 2] from Sri Lanka on a tourist visa.
[In] October 2009 the applicant travelled to [Country 2] from Sri Lanka and was residing in [Country 2] until [June] 2012.
[In] June 2012 the applicant travelled by boat from [Country 2] to [Country 1] and was residing in [Country 1] until [July] 2012.
Between [date range in] July 2012, the applicant was in transit from [Country 1] to Australia.
On [date] July 2012 the applicant arrived in Australia.
Claims for protection and other supporting documentation
The applicant submitted his claims for protection when he lodged his protection visa application with the department on 1 February 2013. The following claims were submitted in a Statutory Declaration attached to his visa application:[2]
[2] Ibid, folios 34-30.
Background:
3. I was born in [Village], [Town], Jaffna District, SRI LANKA.
4. I was born on [Date].1 am [Age] years of age.
5. I am a citizen of Sri Lanka. I do not have Citizenship or the right to reside
in any other country.
6. My ethnicity is Tamil.
7. My Religion is Hindu.
8. I have never been married and I have no children.
The country to which I fear returning:
9. I fear returning to Sri Lanka.
Why I left Sri Lanka:
10.I fled Sri Lanka in October 2009 because of the persecution my family has had to encounter by the Sri Lankan Army due to our Tamil ethnicity and the imputed political opinion that we had an association with the LTTE.
11.I was born and grew up in Jaffna because the Sri Lankan army impute Tamil people with the political opinion that they are associated with the LTTE.
12. In 1999 my older brother, [Mr A] and three other members of my family (all young Tamil males) were taken by the Sri Lankan Army where he was detained, interrogated and beaten for 3 days. They were being accused of being associated with the LTTE.
13. The SLA claimed that they had information that our family were assisting the LTTE. This information had been given to the SLA by some village members who had a previous misunderstanding with my father.
14. My father and mother went to the leader of our village and the Church priest and told him what had happened and they appealed to the SLA to release my brother and other family members.
15. After my brother was released my brother was ordered to present to the SLA and sign a document every month.
16. Then in May 2000 my brother [Mr A] was called in by the SLA for interrogation again. He attended in the morning, and he was not released until the afternoon. My parents were waiting outside for my brother. Then around 5pm they called my father into the office for interrogation. Then both my brother and father were released at around 6pm.
17. After this incident my mother, out of fear, stopped sending my brother out to work on the farm with my father. It was my families land, and we grew vegetables on the land. My father would bring the vegetables back to the house (approximately 1.5 kms in distance) and my brother would be responsible for taking the vegetables to the market to sell. With the money raised from the vegetables he would buy all the groceries and supplies that out family required.
18. The SLA would do round ups around 4am. One day in around May/June 2000 my father was working on our farm at around 5 am when the SLA captured him and severely beaten.
19. At around 7am my mother and brother went to the farm to take him his breakfast, she did this every day. When she arrived to the farm she found my father severely beaten.
20. My mother hired a trishaw and he was taken to the hospital. My father was in the hospital receiving treatment for his injuries for one week.
21. After this incident his heath was never good. His left chest was always swollen. My father could not longer work on the farm so it was my mother and my brother [Mr A] who were responsible for the farming. In October 2000 my brother [Mr A] went missing and we have never seen or heard from him again.
22. We are sure that it was the SLA who had taken him because he had been taken in for interrogation so many times. My mother sought the assistance of the village heads and the Church, however the SLA claims to know nothing of the disappearance of my brother.
23. After approximately 6 or 7 months of the disappearance of my brother, the SLA came to our house interrogating my father about my brother's whereabouts. The SLA accused my brother of assisting the LTTE. When my father denied this the SLA officers beat my father again
24. Then in August 2002 my father passed away because of all of the injuries that he had sustained from the beating by the SLA. We could not afford the necessary medical treatment for him.
25. Since my father passed there was none to support the family. There was a great deal of pressure on my mother to do the farming. I would help my mother after school until in 2004 it became too much and I left school so that I could do the farming full time. I also did some labouring jobs to help support the family.
26. In May 2006 the SLA came again to my house interrogating my mother about the whereabouts of my brother. I was threatened that I should inform them about my brother's suspected association with the LTTE. When they came to interrogate me they would beat me.
27. After the SLA came twice interrogating me my mother became very fearful that one day they would come and take me. I was the last remaining male in the family. So in 2009 she made the decision to try and get me out of Sri Lanka for my safety.
28. From 2007 until went to stay in hiding with my uncle in a different district in Jaffna because I was fearful of being taken by the SLA.
29. Initially my mother sent me to Colombo so that I could get my passport and make arrangements with an agent to get me to [Country 2]. My mother mortgaged the land in order to pay for me to go to [Country 2].
30. Since I had left the area the SLA have come to my mother's house enquiring about me whereabouts. My mother informed them that I had gone to [Country 2]. The SLA demanded that my mother give them my phone number, however I never received a call from them.
31. The last time that the SLA came looking for me was in 2010. My mother told me never to return to Sri Lanka. It would be worse for me because I had been missing from Sri Lanka for so long and the SLA would accuse me of being training the with LTTE.
32. In [Country 2] I registered with the UNHCR, however this did not give me the legal of residence or to work there.
33. I heard from an agent that there would be possibilities of refuge in Australia, so in June 2012 I started to make arrangements to flee [Country 2] and come to Australia.
What I fear may happen to me if I return to Sri Lanka.
34. If I return to Sri Lanka I fear for my life. I fear that I will be abducted and go missing just like my brother.
Who I think may harm/mistreat me in that country and why.
35.I believe if I return to Sri Lanka the Sri Lankan Army will harm or mistreat me because they are still making enquiries about me.
36. My father was badly beaten which led to his death and I knew that it would happen to me in time.
Why do I think this will happen to me if I go back?
37. I know this will happen to me because I am Tamil I have been imputed with the political opinion of being associated with the LTTE.
38. I also fear persecution for seeking asylum in a western country.
Why I think the authorities of that country cannot or will not protect me if I go
back to that country.
39. The authorities in Sri Lanka cannot and will not protect me because they are the ones that are persecuting me because of my ethnicity as a Tamil.
40. The authorities are Singhalese and they are not interested in protecting Tamils, in fact they try to cause problems for Tamils.
41. The Sri Lankan Government are the ones making and enforcing the laws in relation to failed asylum seekers.
Why I think relocation to another area in my country is not a reasonable option.
42. I cannot relocate to anywhere in Sri Lanka because Tamil's face persecution in all parts of Sri Lanka. Tamils have to report and register with the authorities wherever they move in Sri Lanka. My national ID identifies me as being from Jaffna and this would always cause me trouble.
43. I do not have any contacts or family living in other parts of Sri Lanka. I have a limited education and would not be able to work or establish a life.
Other reasons I cannot return to my home country - Complementary protection:
44.I fear if I am returned to Sri Lanka I will suffer arbitrary arrest and detention, imprisonment, physical assault and torture, possibly death at the hands of the Sri Lankan Authorities because of my ethnicity as a Tamil, the imputed opinion that I have an association with the LTTE and also because I have sought asylum in a Western Country.
The applicant submitted the following documents to the department in support of his visa application:[3]
·    Translated copy of a Death Certificate for the applicant’s father, registered on [date] September 2002;
·    Undated copy of a letter from the Sri Lanka Red Cross Society regarding the applicant’s brother being reported missing since [October] 2000;
·    Copy of the applicant’s UNHCR card;
·    Translated copy of the applicant’s family ration card;
[3] Ibid, folios 26-23.
On 11 May 2015 the applicant submitted to the Tribunal the following documents:[4]
·written submissions in support of the applicant’s review application by the applicant’s legal representative;
·Written statement from the applicant’s wife, [Ms B].
[4] Tribunal file 1400554, Doc Id 2348557.
On 14 May 2015 the applicant attended a hearing at the Tribunal to give evidence and present arguments. The applicant’s wife, [Ms B], was available to give oral evidence at the hearing. After discussions with the Tribunal the applicant’s representative informed the Tribunal, the applicant withdrew his request for his wife to give evidence.
On 22 April 2016 the applicant attended a further hearing at the Tribunal[5] and submitted a letter of support from his employer, [Mr C]from [Company].[6]
[5] Ibid, Doc Id 2814165.
[6] Ibid, Doc Id 2814180.
On 9 May 2023 the applicant submitted to the Tribunal the following documents in support of their review application:[7]
[7] Tribunal file 1903154, Doc Id 11038122.
·The following Statement of Claims by the applicant, dated 3 May 2023:
1. I am making this statement in support of my application for a protection visa and to provide additional information to the Administrative Appeals Tribunal. I continue to hold a fear that if I was returned to Sri Lanka, I would suffer serious harm and persecution from the Sri Lankan authorities on account of my profile as a Tamil man, who was imputed with a political opinion in support of the LTTE or against the Sri Lankan government, and who continues to be being linked to Tamil diaspora in Australia.
2. Please note that this is a summary of my claims, and I intend to provide my evidence in further detail at the Tribunal hearing.
3. In short, I live in Australia with my family, and we are constantly living with worry. I feel like we are in limbo, and for years we have lived with the stress of being unsure what is going to happen next to me and my visa. I am thinking about my future, and the safety of my children, all the time. It makes me feel sick, and I can’t sleep or work because of my fears.
4. I am married to [Ms B], and we have three children together - all born in Australia. Our youngest child is only [Age]. My eldest child is [Age], and my second child is [Age]. They are so young, but even my eldest child has started to be impacted by my situation and my depression. He is in Grade [Number] now, and old enough to know that his friends have toys and get to go on holidays with their families, but we don’t. I promise him that one day if I get the visa and some security in my life once and for all, we will be able to pay the rent, go camping together, and play with each other on the weekends. For now, I simply feel stuck. And I feel awful for my son, he is too young to take on such stress. He also doesn’t sleep very well. In comparison, my second son doesn’t understand our situation so for now, he continues to play more happily.
5. Since I stopped working, I feel like my whole life has fallen apart, I hate that I can’t provide for them as a father. I hate that they see me cry in depression. As a father, I cannot leave them behind if I was forced to return home. I spend most of my time locked away in my room.
6. My wife sought protection in Australia based on the harm she feared due to marrying me – a love marriage that her family in [Country 2] do not approve of. She was granted a SHEV and now this will convert to a permanent ROS visa, however this brings us limited joy until we don’t know what my future will hold.
7. I haven’t been able to work since my last AAT hearing in 2018. My wife works, and receives some Centrelink payments, but this is all.
8. My wife has been the one carrying the financial burden for our family, even though she has just given birth to our third child. This pregnancy wasn’t easy for her, but she had no choice but to continue supporting all of us. This also makes me feel extremely depressed, but due to my mental health I am simply unable to concentrate on any tasks that would be required of me if I was employed. I am extremely grateful for my wife, I am very dependent on her – not only financially, but emotionally, practically – she speaks English and assists me with all of our day to day tasks. I have a counsellor for my mental health, but I struggle to keep my appointments due to my stress and depression. I forget times and date of all my appointments, and if it wasn’t for my wife reminding me about things I probably would never remember anything, including attending a Tribunal hearing. It’s a vicious cycle. My wife tries her best to help me and get me the support I need.
9. I love my family, and am happy that they will all soon be permanent residents in Australia, but personally I just feel like a corpse, barely existing.
10. My mental health has been so bad – the stress I live under due to my circumstances in Australia, alongside the constantly deteriorating situation in Sri Lanka, makes me so stressed. My GP at [Medical centre], [Suburb], has provided me with a mental health plan but I have not been able to pursue it properly. I have been referred to a psychiatrist but I haven’t attended my appointments. I am very hesitant to take any action. I think this is because of my mental health. I take medication for my asthma, pain killers, and sleeping tablets. I have had to attend the Emergency Room at the hospital before.
11. The situation in Sri Lanka feels, to me, like nothing has changed since I fled. Tamils continue to die, disappear in white vans, lose our land, our money, our opportunities. Tamils have always lived a life of struggle – struggling to find food, struggling to find work, struggling to find peace and justice. With the new government elected I can’t see this situation changing, it will remain the same for the generations to come.
12. The ethnic tensions remain, which I know from my lived experience means that instability will come, and violence will erupt once again.
13. Apart from my children, one joy in my life has been playing [Sport]. I formed a team made up of Tamils and others from my community and we have played in a number of tournaments. We won our tournament in December 2021. We had called our team the [Team name] and used the LTTE flag for our team. I didn’t think much of it, we just agreed it would be a good name for our sporting team. However, it caused a lot of controversy in the community. People accusing us of supporting or being part of the LTTE and others were really upset when we won the trophy. This was not our intention at all but given that our club’s photos were on social media, I am now worried that the authorities in Sri Lanka might misinterpret the meaning behind out team’s names. I know that Tamil diaspora are being monitored. I also know that my social media photos were being talked about in my home village, because my sister – who remains living with my mother in our home village, had heard from other villagers that I was “in the [Team name]” and questioned me about it.
14. I genuinely had not thought about the consequences at the time that we made this decision as a [Sport] team. None of us are political at all, we just liked the name. I have attached some photos of myself and my son on the day we won the trophy in December 2021 which I had put on [Social media].
15. I continue to fear being imputed with LTTE links, and I fear I will die just like my brother and my father have before me. I fear if I returned to Sri Lanka, I would be separated from my wife and children forever. It would not be safe for them to migrate to Sri Lanka. They also would struggle to fit in – my children speak English, and my wife speaks English and the [Country 2] Tamil dialect – it is so different from my dialect that even my mother and wife cannot communicate with each other. We cannot migrate to [Country 2] because my wife has been found to be owed protection, and this was on the basis that we would all be targeted for honour killings due to our love marriage.
16. Beyond the depression and despair I would face being separated from my family, I fear that I will experience police monitoring and harassment upon my return, as I did all those years ago. Since arriving in Australia, my fears have not eased, even though quite some time has passed. I fled Sri Lanka illegally, and upon my arrival I was photographed disembarking the boat ([Name] ship) at Christmas Island, and this photo was broadcast in the media. I then spent the next 6 months in immigration detention and have been going through the refugee status determination process for the past ten years.
17. I now fear that the likelihood that I will be harassed and monitored and harmed upon return has been increased since the controversy surrounding my [Sport] club, the [Team name], and the photos on social media of me with a flag displaying the LTTE emblem. I fear the Sri Lankan authorities will think I am a threat and I will never live in safety or peace.
18. I’m afraid because abductions of Tamils within Sri Lanka continues. Since the recent crisis in Sri Lanka, the PTA has been used to persecute, arrest and harm Tamils, particularly those suspected as being a risk to the country’s security. I am fearful that I will be considered such a person, and will be arrested, abducted, or simply “disappear” like so many Tamil men before me have disappeared with no justice.
19. My mental health is extremely poor. I have struggled mentally since the persecution against my brother, then the harassment and beatings against me and my own father, my father’s death, and now all the life of hardship I’ve continued to suffer since I made the decision to flee to Australia, thinking that I would find security once and for all. I will try my best to speak clearly about my past and my fears for the future, but I apologise in advance that my memory is poor and my mental health is very bad.
20. If I had to return to Sri Lanka with this stress, and be separated from my wife and children, I could not see the point in living.
·The following statement in support of the applicant’s claims with the date 9 May 2023, was made by the applicant’s wife, [Ms B]:
1. I am making this statement in support of my husband, and the father of my children’s, application for a protection visa.
2. I know that my husband, [the applicant] would not survive in Sri Lanka. His mental health is so bad. He spends his days in his room, he won’t speak to us anymore. His focus is his visa situation and constant fears of returning to Sri Lanka. Our aim has just been to survive until he gets through this hearing.
3. I have encouraged him to get a psychiatrist and mental health assistance. Our doctor gave us a mental health plan and encouraged him to get a blood test. But he is so depressed that he hasn’t done his tests or seen his psychiatrist. Similarly, he was prescribed medication, but he doesn’t want to take medicine for his mental health because there is cultural stigma, and he believes the medication will make him crazy.
4. [The applicant]’s memory is very bad. He is so forgetful, if I don’t remind him every single day then he will not attend an appointment. This is the same with meeting his lawyer, or attending the doctors. He feels totally worthless and can’t do anything on his own. He is completely dependent on me for everything. It seems to me like he is in his own world and nothing matters to him anymore.
5. The best thing for his mental health has been getting a hobby – he started playing [Sport] and did really well, leading the team to win a number of trophies. They named their team the [Team name]. He was one of the top-ranked players in Victoria.
6. Apart from playing [Sport], however, he has not experienced much happiness in many years. His mental health has really impacted our family life. They have missed out on many years of having their father.
7. If [the applicant]’s visa was refused, I don’t know what to say to my kids because they are not at the age to really understand about visas or refugee life. For me, my kid’s mental health is very important. Because I believe childhood memories are important for kids’ development because [the applicant] used to talk to me about losing his father when he was still a child, and how he still remembers the way he died. I do not wish for this to happen to my kids – to lose their father, to see their mother left alone. I try not to let myself think about it. My children need their dad. They are upset when he is in his room, they say “We need Daddy”. Because I can see they love their daddy so much. Even when he is locked away in his room, they keep distracting him to try to get his attention and to play with him.
8. At that moment [the applicant] occupies himself by playing sports – such as [deleted]. [The applicant] is very interested in sports and likes to teach kids to play sports too.
9. I came to Australia from my home country because I wanted to be with him, his love, care, and in safety in Australia. My family would harm us if we ever returned to [Country 2]. The Australian government has agreed that this is a real risk we face, as they have granted my kids and me protection here.
10. I recently lost my own father, and I know how painful it is to lose a father. [The applicant] also lost his father when he was young, so he knows how important a father’s love is for a kid. For these reasons, we need [the applicant] to be granted his protection visa so we can live in peace and safety once and for all.
·Three photographs of the applicant at [Sport] tournaments with his team, the [Team name Sport] club, including one photograph of the applicant standing in front of an LTTE flag;
·Written submissions from the applicant’s legal representative, dated 9 May 2023.
The claim

The determinative issue in this review is whether, upon the applicant’s return to Sri Lanka there would be a real chance he would be subjected to serious harm by state or non-state actors for the reason of his ethnicity and imputed political opinion, namely he is a Tamil separatist who may aid and abet the resurrection of the Liberation Tigers of Tamil Eelam (LTTE).
Consideration of the evidence
The applicant arrived in Australia by boat [in] January 2013. He married in Australia, and their three children were born in Australia: their ages are [age range]. The applicant’s wife was granted a (Safe Haven Enterprise) visa (SHEV) which in due time, may convert to a permanent Resolution of Status (ROS) visa.[8]
[8] Migration Act 1958 and Migration Amendment (Transitioning TPV/SHEV Holders to Resolution of Status Visas) Regulations 2023.
The visa status of the applicant’s wife is of no assistance to the applicant in this proceeding because he applied for a visa in a different visa class to the class of visa held by his wife.
The applicant asserts the authorities in Sri Lanka have imputed to him an adverse political profile, being he is a Tamil separatist and supporter of the LTTE. For that reason, he poses a risk to social stability and state security.
The applicant stated in evidence that he was not politically active in Sri Lanka, but he agreed with the separatist aspirations of the LTTE and equal opportunity for Tamils.
According to the applicant’s evidence his father and older brother were LTTE activists. At different times they were arrested by members of the state security forces as suspected Tamil separatists and supporters of the LTTE. For those reasons, at different times, they were incarcerated for short periods and tortured for the purpose of extracting information about the LTTE. Essentially this was an ethnic separatist war between the minority Tamals and the Signalise majority.
The applicant’s family was well established in Jaffna, a township situated in the northern province of Sri Lanka. According to the December 2021 DFAT report (DFAT report) for Sri Lanka the economic conditions in the northern and eastern provinces of Sri Lanka are poor compared to the remainder of the country: [2.19]. The DFAT report considered generally indicates the northern part of Sri Lanka was an LTTE strong hold during the 20 years or so of violent revolt by Tamil separatists against the national government.
The applicant’s father was a farmer. He worked the farm alongside the applicant’s older brother. After the applicant’s brother was arrested and beaten by members of the security forces, he stopped working the land, and instead took the farm produce to market.
The applicant asserts that in mid-2000, shortly after the security forces released the applicant’s brother from detention, his father was working on the farm when the applicant’s mother and older brother arrived at the farm to share breakfast with the father. Apparently, this was part of the family’s normal routine. They found the father in urgent need of medical treatment. He had been seriously assaulted and injured. The father was conveyed to hospital by trishaw. He died from his injuries not long after he was discharged from hospital.
[In] October 2000, subsequent to the death of the applicant’s father his older brother did not return home from work. The family searched for him unsuccessfully but remained hopeful he would eventually return home. They believed he had been arrested by the government armed forces because of his suspected LTTE activities. He was never seen again.
As a last effort to discover the fate of the applicant’s brother and his whereabouts, the family made a missing person report to the Sri Lankan Red Cross Society. A letter of confirmation of the report was submitted to the Tribunal. According to the letter the applicant’s brother was registered with the Red Cross as a missing person [in] November 2002.
The document is genuine according to the applicant’s oral evidence. The Tribunal notes the document was not computer generated and it was not written by hand. It is apparent that the document was typed on a typewriter. The format and contents of the document are consistent, and it presents as a document typed by a competent stenographer. The Tribunal has considered the DFAT report that states document fraud is common in Sri Lanka.[9] Nevertheless, after considering the applicant’s evidence and the form and content of the letter, and that the LTTE and Tamils were viewed as a posing a serious military threat to the government and its armed forces, the Tribunal is satisfied it is plausible that the applicant’s bother was abducted and killed by state actors.
[9] December 2021 DFAT report, Sri Lanka, [5.45].
On balance, the Tribunal is satisfied the Sri Lankan Red Cross Society document is reasonably likely to be genuine. The Tribunal is persuaded to treat the document as evidence of the accuracy of the matters stated in the document.
The evidence establishes that the applicant travelled by vessel from [Country 2] to [Country 1] for the purpose of entering Australia and claiming asylum. The vessel was carrying Sri Lankan refugees. It was held in [a Country 1] port. [Details deleted].
It is unnecessary to refer to specific media reports about the episode because the Tribunal is satisfied, through the prolonged and widespread media coverage it received in Australia and internationally, the episode may be reasonably characterised as a matter of common knowledge. The failure of the Tribunal, differently constituted, to fully consider this event was a determinative reason for the Federal Court decision to return the matter to the Tribunal for reconsideration: BKQ16 V Minister for Immigration & Anor [2018] FCCA 137.
The applicant asserts in evidence and the Tribunal accepts that it is reasonably likely the widely circulated photographs and television coverage of the boat and the Tamils aboard the boat captured images of the applicant. The applicant also asserts that Sri Lankan intelligence authorities were aware of the [incident] and that the passengers were Tamils, afraid they would be persecuted if they returned to Sri Lanka. The Tribunal accepts state security agencies were aware of the [incident] and likely to link the applicant to the it.
In substance the applicant contended the Tribunal should accept the security agencies in Sri Lanka would, after identifying the applicant with the [vessel], apprehend he fled from Sri Lanka because the state security agencies had good reason to apprehend, he was either a supporter of or member of the LTTE, and a Tamil separatist.,
The applicant married his wife in Australia, and they have three children, each of whom was born in Australia.
According to the evidence that applicant has always been keen on [Sport], and he played the game at school where his prowess was recognised. In Australia the applicant joined a [Sport] club called the [Team name], shortly after it was established. He led the team over several years. They play [Sport] each season, won championships, raise funds, recruit new members, and provide coaching. The applicant continues to be a high profile and active member of the team.
According to the evidence, as a member of the Tamil community, the applicant is widely identified with the [Team name sportspeople].
According to the evidence, members of the club and the applicant have posted photographs and comments about the team on their favoured social medial sites including [Social media]. The applicant relies on several photographs of himself and others wearing the logo, colours and flying the flag of their team.
The applicant’s representative, in response to the applicant’s evidence, informed the Tribunal that well prior to the hearing the applicant provided her with significantly more relevant images than she provided to the Tribunal. The representative explained that she thought it better to provide the Tribunal with a smaller number of images spread over time that the full bundle of images. The Tribunal accepts the representative’s explanation.
The images before the Tribunal depict the applicant in various club settings. The images were taken from social media sites. The applicant is depicted in settings relating to [Sport] and the [Team name Sport] club. He is depicted wearing team colours and sometimes the club flag can be seen.
According to the evidence the club has adopted the colours and flag of the LTTE. As the Tribunal understands the evidence the name of the club, the team colours and symbols were chosen at the time the club was established.
To summarise, the evidence identifies the applicant wearing the colours and supporting the flag of the LTTE. He is identified on social media as supporting and fostering an organisation that includes Tamils, which appears to respect and support the separatist aspirations of the LTTE. The LTTE is typically referred to in Sir Lanka and elsewhere as the Tamil Tigers.
According to the applicant’s evidence he supports self-determination for Tamils in Sri Lanka and the objectives of the LTTE. It is relevant to observe here that according to the evidence accepted by the Tribunal the applicant’s father and brother supported the LTTE and because of that support, it is reasonably likely they were killed.
The Tribunal accepts there is a real chance the applicant’s father died from injuries inflicted by security forces in the belief he actively supported the LTTE.
The Tribunal considers it to be unlikely that after the death of the head of the household, the oldest surviving son would voluntarily disappear and leave the family never to return, when he was on the way to market with produce from the farm. The Tribunal is of the view there is a real chance the applicant’s brother was abducted by the state security forces because they imputed to him support for Tamil separatism and the LTTE. This view is supported by the DFAT report which states that systematic forced disappearance of antigovernment individuals including Tamil separatists occurred during the civil war between government forces and the LTTE, and for a period afterwards: [4.6].
Against the applicant’s family history, and his stated agreement with the objectives for which the LTTE waged a separatist war on the central government, it is unsurprising that the applicant joined and supports the [Team name Sport] team, and their colours, irrespective of the colours and flag being identified with the LTTE.
The Tribunal accepts the applicant is an accomplished [Sport] player and that it is reasonably likely he played [Sport] at school in Sri Lanka, a well-known [Sport] country. The Tribunal accepts the applicant joined the [Team name Sport] team for the enjoyment of the sport, and to benefit from engaging in recreational activity with members of his community.
Additionally, the Tribunal is of the view it is likely the applicant was willing to be identified with the team, irrespective of the public display of respect for the LTTE and their separatist objectives, due to respect for his dead father and missing, presumed dead elder brother, and their history of affiliation with the LTTE. The evidence considered as whole, is insufficient to satisfy the Tribunal that the applicant joined the [Team name Sport] team and engaged in associated activities, did so for the purpose of strengthen his claim to be a refugee.
The applicant contends that his involvement in the club would be a matter of record in the security apparatus in Sri Lanka. In considering the social media coverage of the club, that inference seems to be reasonable.
The evidence establishes to the satisfaction of the Tribunal the existence of a real chance the applicant would be viewed by the security apparatus as a person who may pose a significant risk to national unity and public order in Sri Lanka. This view comprehends the DFAT report that states the LTTE was comprehensively defeated around the end of 2009: [3.41]. DFAT also reports the LTTE no longer exists as an organised force inside Sri Lanka: [3.43]. Moreover, according to DFAT sources after the defeat of the LTTE, the Sri Lankan authorities remain concerned over its potential re-emergence, and the re-emergence of separatist tendencies ([3.41]) and it is determined to prevent any form of resurgent separatism: [3.44].
The DFAT report states Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members, supporters, and separatists: [3.41]. Their ‘watch list’ includes names of individuals whom Sri Lankan security services consider to be of interest, including suspected separatists: [3.41].
The Sri Lankan authorities continue to assess element of the Tamil diaspora who may be committed to the concept of a separate Tamil state: [3.54]. The Upper Tribunal in the UK ruled in May 2021that:
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.
The DFAT report indicates that the Prevention of Terrorism Act (PTA) has recently been used against Tamils. In April 2021 the Mayor of Jaffna was arrested under the Act by the counter terrorism authorities accused of attempting to resurrect the LTTE as the uniforms chosen for the municipal environment enforcement team resembled those of the LTTE: [4.23]. This circumstance is relevant to assessing whether the applicant would face a real chance of serious harm in Sri Lanka. His wearing of the colours of the LTTE and apparent respect for the LTTE flag may reasonably be viewed as factors likely to indicate to the Sri Lankan security services that the applicant sympathises with the LTTE and supports Tamil separatism.
Relevantly, Jaffna, in the northern reaches of Sri Lanka, was a centre of LTTE control and operations during the civil war, and the military maintains a significant presence there. Security check points were re-established to significant extent in 2020-21: [2.54]. The Military continues to maintain a significant presence in the north: [2.55]. Since the end of the civil war the military has been involved in civilian economic activities ([2.55]) including commercial businesses and the undercutting of local businesses. The military returned some land it occupied during the war, but it continues to occupy important agricultural land and fisheries: [2.18].
The DFAT report may be relevantly summarised as follows: Tamils who are low-level supporters of the LTTE are unlikely to be subjected to serious or signification harm from state or non-state actors upon their return to Sri Lanka as failed asylum seekers.
The chance of harm faced by the applicant must be assessed in the context of the current significant and widespread civil unrest and antigovernment protests and attitudes in Sri Lanka. The unrest and protests are reported to be motivated by the parlous state of the economy, including shortages of life’s essentials such as food and fuel, energy rationing and soaring inflation. The security forces have deployed in large numbers. These matters have been the subject of widespread, international media reportage and may reasonably be considered by the Tribunal to be matters of common knowledge.
It is reasonable to take the view that the security forces, already vigilant in their focus on individuals they identify as having attitudes that elevate the perceived risk of a revival of the LTTE and Tamil separatism, will continue their vigilance in the context of the current economic difficulties and anti-government sentiment that is reliably reported to be widespread in Sri Lanka.
The applicant’s return to Sri Lanka is unlikely to pass unnoticed by the security forces. It is reasonable to take the view that the applicant is likely to be on a ‘watch list’ due to his family’s perceived association with the LTTE, and his presence on the ship held in [Location, Country 1]. Additionally, the applicant’s self-identification with a group of [Sport] players who display the colours, logos, and flag of the LTTE, and call themselves the [Team name], is likely to have come to the attention of the Sri Lankan security forces, thereby adding to his chance of being detained by the Sri Lankan security services.
There is a real chance in the current state of antigovernment sentiment and civil unrest in Sri Lanka that, upon being returned to Sri Lanka, the applicant would be viewed as a person, not unlike the Mayor of Jaffna, who poses a risk to national unity and social order.
The risk of harm the applicant may face would arise from the existence of a real chance of the security forces identifying him as person who willingly joined with others to group around the insignia and colours of the LTTE and adopt the [Team name]. Add to that: the applicant’s likely family history of imputed support for the LTTE and Tamil separatism, and that he left Sri Lanka during a period when his family seems to have been the subject of close attention from the country’s security apparatus. The Tribunal is satisfied these reasons constitute essential and significant reasons for the existence of a real chance of persecution the applicant would face if he were removed to Sri Lanka.
Considered cumulatively, the evidence, country information and the current anti-government sentiment and civil disorder in Sri Lanka is sufficient to establish to the satisfaction of the Tribunal the existence of a real chance the security forces in Sri Lanka would arbitrarily subject the applicant to serious harm, if he were removed to Sri Lanka now or in the reasonably foreseeable future.
The Tribunal is satisfied the real chance of serious harm faced by the applicant would result from systematic and discriminatory conduct by the state security apparatus by means of targeting the applicant as a person who posed a risk to national unity and social order; a provocateur who may seek to resurrect the LTTE and separatist sentiment.
Having considered the applicant’s claims individually and cumulatively, the evidence and cited country information considered together, is sufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subjected to serious harm for reasons of his Tamil ethnicity and imputed political opinion, being reasons that meet the provisions of s 5J(1)(a) of the Act, if he is removed to Sri Lanka now or in the reasonably foreseeable future.
Consequently, the Tribunal is satisfied the applicant has a well-founded fear of persecution for a reason specified in s 5J(1) of the Act, namely ethnicity and imputed political opinion and that the applicant meets the definition of refugee as set out is s 5H of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
DECISON
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Peter Haag
Member