1904979 (Refugee) - [2024] AATA 4296

1904979 (Refugee) [2024] AATA 4296 (6 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Daniela Annemarie Ion (MARN: 1792307)
CASE NUMBER:  1904979
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Jessica Henderson
DATE:6 March 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 March 2024 at 5:26pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – unauthorised maritime arrival – s46A bar lifted – ethnicity and imputed political opinion – Tamil imputed as LTTE member – civilian ordered by employer to do occasional unpaid manual work for LTTE – questioned, detained and beaten by army – physical injury and mental health – returned failed asylum seeker and capacity to subsist – inconsistent evidence about departure – organisation membership and activities in Australia recent, undetailed, uncorroborated and for purpose of strengthening claims – country information – general application of laws for unlawful departure – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 46A, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
DLB17 v MIBP [2018] FCCA 1299
Emiantor v MIMA (1997) 48 ALD 635
MIEA v Singh (1997) 72 FCR 288
SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362
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 Home Affairs on 21 February 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of Sri Lanka. He applied for the visa on 20 September 2018. The delegate refused to grant the visa on the basis that the delegate did not accept all of the applicant’s claims, and those claims that were accepted did not, on available country information, give rise to a serious or significant risk of harm.
The applicant was represented in relation to the review.
HISTORY OF THE PROCEEDINGS
The applicant first arrived in Australia [in] May 2010 as an unauthorised maritime arrival. He attended an arrival interview on [date] May 2010, and lodged a request for a Refugee Status Assessment (RSA) on 6 August 2010. On 9 August 2010 the Applicant was interviewed and on 29 September 2010 the RSA officer produced a decision which stated that ‘the [Applicant] did not meet the definition of a refugee and is not someone to whom Australia owes protection obligations.’
The applicant applied for an Independent Merits Review (IMR) on 28 October 2010 and was interviewed on 16 April 2011.
On 4 July 2011 the Reviewer found that the Applicant did not meet the criteria for a protection visa and refused to make a recommendation to the Minister.
On 5 August 2011 the Applicant filed an application for judicial review in the Federal Magistrates Court, which was dismissed on 18 April 2012. On 9 May 2012 the Applicant filed an appeal from the Federal Magistrates Court to the Full Federal Court (FFC).
Concurrently, s 36(2)(aa) was introduced by the Migration Amendment (Complementary Protection) Act 2011 (Cth) (No 121 of 2011), which commenced on 24 March 2012 and applied to applications not finally determined as at that date. In a decision dated 14 May 2012, a delegate of the Minister conducted a Post-Review Protection Claim (PRPC) assessment and a Unique and Exceptional Circumstances (UEC) assessment and found that the Applicant’s case did not meet the Minister ’s guidelines for the consideration of post-review protection claims.
The applicant’s appeal to the Full Federal Court was dismissed on 18 January 2013.
On 29 July 2013 the applicant lodged an application seeking declarative and injunctive relief in respect of the PRPC assessment in the Federal Circuit Court of Australia (FCCA) on the basis that the applicant had not been accorded procedural fairness and that the correct legal test had not been applied for assessing the applicant’s entitlements under the complementary protection provisions. By a decision dated 1 July 2014 the FCCA allowed the application and made a declaration that the decision with respect to the applicant had not been made according to law.
On 15 May 2015 the Minister conducted an International Treaty Obligations Assessment (ITOA), which resulted in a finding that Australia had no protection obligations. The applicant appealed to the FFC and the Minister withdrew.
On 23 May 2018 the Minister exercised the power to lift the section 46A bar. The applicant applied for a Safe Haven Enterprise Visa (SHEV) on 20 September 2018. On 21 February 2019 a delegate found that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(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 (s36(2)(b) and s36(2)(c) of the Migration Act 1958 (the Act)).
The application presently before the Tribunal is for review of the 21 February 2019 decision. The applicant attached a copy of the decision record to the application for review, which was made on 4 March 2019.
On 24 May 2023 the Tribunal wrote to the applicant’s then agent of record to advise that the applicant’s file was being prepared for allocation to a Tribunal Member. The letter requested that any additional evidence be provided to the Tribunal as soon as possible and attached a link to a pre-hearing information form for completion within 7 days of receipt.
On 8 June 2023 the applicant’s then agent replied to the Tribunal to advise that they were unable to contact the applicant.
The Tribunal listed the application for a hearing on 2 August 2023 and sent a hearing invitation to the applicant by way of their then agent on 14 July 2023. On 18 July 2023 the then agent advised that they had still not been able to get in touch with the applicant.
The applicant did not appear at the hearing on 2 August 2023. On 17 August 2023 the Tribunal wrote to an alternative address for the applicant which the Department advised the applicant had been communicating with the Department on. The letter sent to the alternative email address was in the following terms:
URGENT: YOUR APPLICATION IS ABOUT TO BE DISMISSED UNLESS YOU CONTACT US
The Tribunal has attempted to communicate with you through your agent and through the contact details that you provided to the Tribunal. You have not responded.
You have missed a critical deadline and the Tribunal is considering whether to dismiss your matter without further consideration. You must contact us before 31 August 2023 or your matter will be dismissed.
The AAT has become aware, through the Department of Home Affairs, that you are using this email address. This is not the email address that the Tribunal has on record for you and the Tribunal cannot continue using this email address for you unless you attend the Registry or complete the attached Change of Contact Details MR-6 form and return it to us.
We remind you that sections 4.5 to 4.7 of the Migration and Refugee Division Practice Direction provides that:
4.5 You must give us an address where documents may be posted to, or left for, you and, to the extent possible, you should also give us:
(a) an email address; and
(b) a telephone number.
Note: Wherever possible, the AAT will send you documents by email.
4.6 If a representative lodges an application for review on behalf of an applicant, the representative should give the AAT contact details for the applicant as well as the contact details for the representative.
Note: The contact details given to us for the applicant should not be the same as the contact details for the representative.
4.7 If you change your contact details during a review, you:
(a) must notify us in writing of the change as soon as possible; and
(b) should complete and lodge the ‘Change of Contact Details – MR Division’ form (Form MR6)
Updated contact information for you must be provided by 31 August 2023. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If you cannot provide the information by 31 August 2023, you may ask us for an extension of time in which to provide the information. If you make such a request, it must be received by us by 31 August 2023, and you must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive your comments or response within the period allowed or as extended, the Tribunal will dismiss your application without further consideration.
The letter attached a blank change of details form. On the same day the applicant returned the completed change of details form providing his personal contact details. However, the applicant did not update his authorised recipient or representative details. The Tribunal wrote back to the applicant requesting that the applicant resend the MR6 through his agent.
The Tribunal listed the application on 6 December 2023 and notified the applicant by email to the applicant’s then agent on 12 September 2023. On 24 November 2023 the Tribunal wrote to the applicant’s agent expressing concern that the agent remained the representative and authorised recipient on record for this matter notwithstanding indications that they were on indefinite personal leave. By return email the applicant’s then representative pressed that they were no longer acting for the applicant and requested assistance taking appropriate steps to remove them as the representative of record. On 27 November 2023 the Tribunal sent a letter to the applicant via their then agent stressing the importance of advising the Tribunal of an alternative agent or otherwise a change of their contact details so that the Tribunal could send correspondence direct to the applicant.
On 28 November 2023 the Tribunal received a copy of a reasonably complete removal of representative form. On 29 November 2023 the Tribunal wrote directly to the applicant providing him with a copy of the hearing invitation.
On 1 December 2023 the applicant requested that the hearing be postponed. The Tribunal declined the request, on the basis that the applicant had had adequate time to engage new representation and prepare for the hearing.
On 4 December 2023 the applicant sent the Tribunal a further request for an adjournment, in the following terms:
Respected Sir ! I would like to Humbly request you that please excuse me for not attending my hearing on 6/12/23 as I am not stable mentally and I would like to attach my sick certificate in my email . Since , I have no English background it is very hard to communicate in English with legal authorities.I would like to give consent and request my friend [Ms A] from Melbourne (mobile [number]) also discuss about my health condition and the reasons for not able to attend the court cases in the past or any future legal matters to her . I would really appreciate and will be greatly thankful to AAT and the tribunal member for considering my mental health condition and request for a new hearing after one month . Thank you sir and would like to request a confirmation email at your earliest convenience. Thank you .
The request attached a copy of a medical certificate from [Medical Centre] in [Suburb 1] which stated: “[the applicant] has Anxiety/Depression and currently on medication. He was under going psychologist care. Please do the necessary arrangements for his good health.” A referral to a psychologist was also attached, providing details of the applicant’s symptoms and details of the applicant’s capacity (including an express statement to the effect that the applicant did not have short or long term memory issues), together prescriptions for methylprednisolone, mirtazapine and pantoprazole dated 4 December 2023.
The Tribunal declined the adjournment request, providing the following reasons:
The Tribunal notes the medical certificate dated 4 December 2023, stating that you have anxiety/depression, are on medication, and you are ‘undergoing psychologist care’. However, the medical certificate does not indicate that you are not fit for a hearing but invites ‘the necessary arrangements’ for your ‘good health’. It is not clear from the attached referral that you are already being treated by a psychologist – rather it appears that you were referred to one yesterday. The referral makes it clear that there are no issues with your memory, either short or long term. It does not suggest any cause of your panic and anxiety and does not suggest when it might be resolved.
For these reasons, the Tribunal declines the request for an adjournment. However, the Tribunal will take account of your anxiety/depression when considering the need for breaks during the course of the hearing.
At the commencement of the hearing on 6 December 2023 the Tribunal asked the applicant about his representative and his communications with the Tribunal. The applicant provided the following information:
a.He lost his phone and was unable to make telephone calls or send emails;
b.He was unable to log in to his email from another device because he had lost his user ID and needed a new password;
c.He was unable to attend his lawyer’s offices because he had been introduced to his lawyer by another Tamil person and that person had taken him to an office in a house; he didn’t have that address any more;
d.He was looking for another lawyer, but it was hard to find someone and he was really scared because he knows that he needs to make use of this opportunity to present his case to the Tribunal;
e.He didn’t know how to get in touch with the Tribunal.
With regards to the medical information that the applicant provided to the Tribunal on 4 December 2023, the applicant said that he had been really confused and needed to see a psychologist. He said that he had taken medication that morning which was for a rash and that he was really scared.
The Tribunal had doubts about the interpretation of everything the applicant said during the hearing on 4 December 2023. The Tribunal enquired of the interpreter whether there were any difficulties and the interpreter confirmed that there was a lack of clarity in the manner of the applicant’s speech which made interpretation problematic.
The Tribunal considered on balance that there was sufficient doubt about the circumstances to warrant adjourning the hearing to a later date. Given the communication difficulties and the length of time that the matter had been on foot, the Tribunal adjourned the hearing to the fixed date of 22 January 2024.
On 12 December the Tribunal received notice that the applicant had a new representative, who requested access to documents, including the Department’s decision record and a copy of the interview that the applicant had with the Department. The requested documents were sent to the applicant’s new representative on 21 December 2023.
The Tribunal subsequently received a request for the applicant to have a support person to attend the hearing by telephone. The applicant confirmed at the hearing that the purpose of this attendance was for the Tamil-speaking support person to confirm for the applicant that the interpreter was correctly interpreting the proceedings. The Tribunal declined to allow the support person for that purpose and explained to the applicant the reasons for the refusal at the outset of the hearing. Interpretation is not a perfect science and there will always be room for potential criticism of an interpreter. To allow a native language speaker with no credentials before the Tribunal to ‘double check’ the work of an accredited professional in the course of their work is not a reasonable way to conduct a hearing, and not a necessary precaution where a transcript of the proceedings can be made available after the hearing if there is concern about the accuracy of the interpretation.
SUMMARY OF CLAIMS AND EVIDENCE
Entry interview
The applicant is recorded as providing the following history at his entry interview:
a.He is a Sri Lankan Tamil born in [District 1]. He lived in [District 1] all his life, apart from between 2005 and 2007 when he lived as a refugee in India, after travelling there by boat. He returned to Sri Lanka also by boat in 2007.
b.He left Sri Lanka as the army was aware that the applicant had been driving [vehicles] for the LTTE six or seven years earlier. The army came to his house and gave him some problems. He was detained three times for about six hours.
c.He lost a part of his [body part] in a shell explosion, and for this reason the army thought he was with the LTTE. This was why he travelled to India in 2005. He left because it was proved by the army that he had driven a [vehicle] for the LTTE. They put pressure on him to give them information about the LTTE in about January 2010. He managed to escape by saying he had nothing to do with the LTTE.
d.He did not do paid work for the LTTE but assisted them by moving soil and stones with his [vehicle] to take to the Heroes’ cemetery. He only did this on the orders of the owner of the [vehicle].
e.None of the applicant’s family were members of the LTTE however his brother-in-law was with the LTTE and was killed in the war. He does not know when.
f.He departed Sri Lanka by boat for Australia from a beach near Colombo.
g.He cannot return to Sri Lanka as the army will ask him to identify LTTE members. It would be dangerous for him if he did not comply. He would be killed or beaten by either the army or the LTTE.
RSA protection claims and assessment
During the RSA protection claims the applicant’s claims are recorded as follows:
a.In 2006 the applicant fled to India and remained there until 2009. He returned to Sri Lanka at the end of 2009 and fled in April 2010 to come to Australia.
b.Shortly before he left Sri Lanka in 2010 he had been repeatedly questioned by the army because they suspected he was a member of the LTTE. This was because he had done work for the LTTE between 2003 and 2006 during the peace period.
c.The applicant was a [vehicle] driver in [Location 1], in [District 1]. All [vehicle] drivers in their area were forced to work for the LTTE. They would be asked to move sand and cement as well as other building materials. These materials would be used to build monuments for events such as Heroes’ Day. This was not a regular thing, but over a three year period he did about three months work, which he was paid for.
d.When the peace ended in 2006 the applicant was questioned by the army. On one occasion he was detained at a camp for three days. He was interrogated, stripped and beaten with clubs. They wanted information about the LTTE. The applicant was fearful to tell them anything because of the risk of retribution from the LTTE.
e.His mother begged the Gramma Seveka (district government agent) to intervene, and the applicant was released. After he was released he fled to India. The army continued to harass his mother about the applicant after he fled. They did not believe her when she told them that the applicant was in India. As his mother could not stand the harassment she moved to Colombo. She was also fearful about what might happen to his sister, as at that time many young girls were being abducted and raped.
f.The applicant spent three years in India, returning to Sri Lanka at the end of 2009. He had hoped things had calmed down and they would leave him alone. When he returned to [Location 1] the army pursued him again. They suspected him of having been away working for the LTTE, although the applicant denied this to them.
g.The applicant managed to get a pass and went to [Town 1], where he stayed for seven months. The army pursued him there as well. He was visited about 15 times there. Each time he was taken away, beaten and questioned, and was accused of being LTTE. They were also suspicions he was involved in fighting because he lost a [body part] and suffered other wounds during an army shelling in [Year], when his father was killed.
h.The applicant could no longer tolerate the interrogations and beatings, and knew if he stayed he would be killed. Through the assistance of a smuggler, he left Sri Lanka in April 2010 from Colombo.
i.The applicant fears he will be killed by the army if he returns to Sri Lanka because they suspect him of being an LTTE member, because of the work he did for them in 2003-2006. They suspect he has more LTTE involvement because he was missing between 2006 and 2009.
IMR Assessment

The IMR assessor interviewed the applicant on 16 April 2011. During the interview the applicant is recorded as stating:
a.In 2002 there had been a bombing near his school. As he had injuries from the bombing of his home in [Year] he was questioned due to suspicions he was with the LTTE. He and five other Tamils at his school were made to sign confessions they had planted the bomb. After they signed the applicant was released however needed to report each weekend at the army camp. This persisted for 18 months.
b.The applicant stated that between 2003 and 2006 he drove a [vehicle]. He was forced to work for the LTTE during this time for a period of six-seven months. This was continuous work from April 2004. The work was for the construction of a martyr’s cemetery. [Number] drivers were involved in this work, but they did not work for the same boss as the applicant. The applicant said the previous information that the work was for three month intermittent work was wrong, and the work was for six months continuously for the LTTE.
c.The applicant stated he was detained at the beginning of 2006 for three days and questioned about the LTTE. He confirmed other drivers and his boss may have also been questioned about the LTTE. He was released after intervention by the Gramma Seveka. This was the only time he was questioned before he went to India, about 15 days later. After he left they questioned his mother. They had been training in his area and at one point had asked his mother where her son was. Because of that problem his mother and sister went to Colombo.
d.The applicant stated he returned to Sri Lanka at the end of 2009. 15 days after returning he was questioned by the army about how he had travelled to the village. They did not believe he had been in India.
e.The applicant remained in [Location 1] for four months with an aunt, before getting permission to move to [Town 1]. There he lived with a cousin. In [Town 1] he was detained and questioned once for six hours. After this he went to Colombo and then Australia.
ITOA Assessment
Prior to the commencement of the ITOA on 15/05/2015, the applicant amended some of his substantive claims by way of a statutory declaration. In this statutory declaration the applicant provided the following claims:
a.The applicant fled to India in 2006 and lived there until he came to Australia by boat in May 2010. His statements about returning to Sri Lanka in 2007/2009 are not true, and he made these under stressful conditions.
b.He and others on the boat he travelled on were told to say they had taken the boat from Sri Lanka. They were afraid they would be sent back, that they followed what they were told to say.
c.The applicant re-iterated his claims that he worked for the LTTE for six months during the ceasefire carrying building supplies by [vehicle]. It was not six consecutive months, but in the period 2003-2006 2-3 times a week, depending on the LTTE demand.
d.When transporting such materials there were two LTTE members sitting on the [vehicle] and they needed to pass several army checkpoints. Doing this work the applicant became familiar with both LTTE and army members, who would recognise him if he passed.
e.After the ceasefire a curfew was called for six months. Some LTTE members fled, while others went into hiding in [District 1]. The army people knew the applicant was acquainted with these LTTE members because he drove the [vehicle] which carried them.
f.After the curfew was lifted the applicant started driving the [vehicle] again. One day when going to work he was stopped at a check point, where he was recognised. He was asked where the LTTE fighters were hiding. The applicant told them he did not know but they did not believe him. He was taken to a room in the checkpoint, where he was held for three days. During that period he was interrogated, stripped and beaten every day. The applicant’s mother came with the Gramma Seveka and had him released.
g.Fearful for his life the applicant arranged through an agent to escape by boat to India.
h.The applicant states all LTTE supporters, workers and soldiers who fled the country may be arrested and detained under the PTA (Prevention of Terrorism Act). The applicant fears he will be detained under the PTA because he worked for the LTTE during the ceasefire.
i.He also fears harm because of being a Tamil from the north, who has scarring. The applicant also fears harm if he is detained for departing the country illegally.
j.While in Perth he has helped the [Organisation 1] with their political activities, and is a member of the [Organisation 1]. This includes arranging venues for their events, such as stacking chairs, serving food and cleaning. He has helped with war Heroes’ day in November and Remembrance Day in May each year. He also canvasses Tamil refugees to attend such events.
k.The applicant fears he will be interrogated about his activities with the [Organisation 1] if he is returned to Sri Lanka, as well as about Tamils who were listed in the 2014 data breach.
l.The applicant said that there had been a misinterpreting in the IMR hearing regarding being made to sign a confession about planting a bomb in 2002. He had not said he had signed a confession, rather he was suspected, and had needed to come to their camp every weekend to report.
m.The applicant also stated that a submission of 09/02/2011 prepared by a previous lawyer who had assisted him stated he had been detained for three days after the bomb blast in 2002, and after the peace broke down. This was incorrect, and he was detained only for a few hours in 2002.
n.During the entry interview he was told to answer questions in summary from. It was also not explained that the information may be used extensively for assessing his claims. In addition, his condition at the time was stressful, and he may not have explained further. Some claims may therefore vary slightly, but they are not contradictions.
o.A housemate of the applicant’s in Perth was recently deported. He has told the applicant that on arrival he was kept in custody for five days and was physically assaulted. If the applicant is returned, he would be treated just as cruelly as his friend.
p.In support of his claims, the applicant submitted a statement from his former roommate, alleging he was detained and harmed when he was removed from Australia and returned to Sri Lanka.
SHEV Application
The applicant’s claims in his application for a protection visa were contained in statement dated 20 September 2018, submitted with his application for a protection visa dated 16 September 2018 (SHEV Statement). An interpreter’s declaration indicates that the statement was interpreted from English to Tamil for the applicant.
In the SHEV Statement the applicant pressed that he had left Sri Lanka for India in 2006 and had not returned to Sri Lanka before coming to Australia in 2010.[1]
[1] SHEV Statement at [1] and [17]-[18].
The applicant set out his reasons for leaving Sri Lanka in the following terms:
[6] Between 2003 and 2006 prior to fleeing to India, I was forced to work for the LTTE. It was during peacetime and I worked as a [vehicle] driver in [Location 1] in [District 1]. All [vehicle] drivers in our area were forced to work for the LTTE, despite being employed by our respective employers. We could not refuse our services to LTTE or they would have viewed us as supporters of the government and killed us.
[7] Our employers were aware of this but they were powerless to intervene and stop the LTTE from forcing us to work for them when they needed something. Members of the LTTE used to come to me and ask me to move sand, cement and building materials. I was instructed to take sand materials from [Location 1] to [Town 2] so the LTTE could build Marty’s monuments and memorial stones for the LTTE soldiers killed during the fighting.
…
[10] In total, I worked for the LTTE for a period of 6 months between 2003 and 2006 but this was enough involvement to bring me to the attention of the Sri Lankan Army (SLA). When the ceasefire had ended in 2006, the army imposed a 6-month curfew, which severely restricted my movements.
[11] When the curfew was lifted, I was able to resume driving my [vehicle]. Approximately a month after the curfew was lifted I was arrested at the [Location 2] checkpoint by the SLA under the Prevention of Terrorism Act (PTA) and taken to the [Location 1] Army camp] and interrogated and beaten by army personnel.
[12] I was asked where the LTTE locations were and they tried to force me to make a confession that I was still working for them. I was forced to sign the statement admitting to this because the army told me they would kill me if I didn’t.
[13]…the army asked me to report to the [Location 1] camp on a regular basis every week for the next 8 months. Each time I reported to the camp they would order me to sign so they could keep a track of my movements and didn’t leave the area.
[14] The army repeatedly question me about the work I did for the LTTE and the locations of their various sites. The army treated me as a suspect because of the work I did for the LTTE movement.
[15] My mother begged the Grama Sevaka, the village headman who had police powers under the law, and it was on his intervention that the army released me. After being released I fled to India because I was very afraid that the LTTE would think I passed on information and the army would come after me again…
The SHEV Statement included the following claim about his future risk in Sri Lanka:
[19] The war may be over for now but not everything is as it seems in Sri Lanka. The Tamil people are still targeted and victimised by the police and the army because the government is afraid the LTTE will regroup and rise again…
The applicant explained the discrepancies in his evidence in the following terms:
[3] It has been more than 12 years since I left Sri Lanka and I’ve done my best to remember dates and details of my schooling, employment and addresses in Sri Lanka but I cannot remember every exact date of employment, unemployment, schooling and addresses I’ve lived at. I am also unsure of exactly how long I’ve lived at each address in Australia or the exact dates of my employment here…[t]he information I have provided on my application has been recalled to the best of my ability.
[4]…my initial claims that I provided to the department when I first arrived in Australia were fabricated because I was instructed by the smugglers who arranged my journey from India to Australia to not tell the Australian government I was coming from India. I provided the correct information in my ITOA statement.
[5] I was not truthful at that time because I was afraid of the consequences from the Australian authorities after being warned by the smugglers in India. The smuggler told me not to tell them about my LTTE involvement or that I had left to come to Australia from India or the Australian authorities would turn our boat around and send us back as soon as we were intercepted. At that time, I had no knowledge of the Australian government authorities or what they might do to me if I told them I was a Sri Lankan refugee that had been living in a refugee camp in Tamil Nadu for the past 4 years.[2]
[2] SHEV Statement
The statement made no further claims about any involvement with the [Organisation 1] or other activities in Australia.
Current claims
On 15 January 2024 the Tribunal received the following documents:
a.Submissions written by the applicant’s agent (2024 Submissions);
b.Statement of [B] and [C];
c.Letter from [Dr D];
d.Letter from [Dr E];
e.Receipt from the [Organisation 2].
The Tribunal also received 13 country information reports from the applicant’s agent.
On 16 January 2024 the Tribunal received the following further documents:
a.A statutory declaration from the applicant;
b.A statement from [F]; and
c.A letter from the [Organisation 1].
The 2024 Submissions press the applicant’s claims in the following terms:
9. The applicant’s claims is summarised in his Protection Visa (SHEV) application, written claims, and the delegate’s decision.
10. A male cousin was killed fighting for the LTTE when the applicant was a child.
11. The applicant lost part of one [body part] as a child, in an explosion when his father was killed.
12. When the applicant was a school student there was a bomb explosion near his school. The applicant and other students from his school were questioned about any knowledge of this by the army, and were released after a few hours. Following this, the applicant and other students needed to sign in on a weekly basis at a nearby army base for a period.
13. During the ceasefire period between 2003 and 2006, as part of his employment as a [vehicle] driver, the applicant was instructed to transport construction material over a six-month period, used for the reconstruction of an LTTE Heroes’ Cemetery in [District 1].
14. In early 2006 the applicant was stopped at a checkpoint in [District 1] where he was detained for around three days. He was questioned at an army camp about any knowledge he had of LTTE cadres who had remained in [District 1].
15. Later in 2006 the applicant left Sri Lanka by boat, and travelled to India, where he remained until 2010 prior to his travel by boat to Australia. He has not return to Sri Lanka since his departure in 2006.
16. In Australia the applicant has attended Tamil community events such as Heroes’ Day, where he has given some assistance at times helping prepare the venue.
17. The applicant fears persecution in Sri Lanka as a failed Tamil asylum seeker in the form of arrest, detention, interrogation, and torture.
18. If the applicant is forced to return to Sri Lanka, he will incur a real risk of significant harm in the form of cruel and inhuman treatment or punishment and degrading as a Tamil and as a suspect who worked for the LTTE. This real risk of significant harm extends throughout Sri Lanka.
19. The applicant suffers from severe depression.
The applicant’s 2024 Statement set out evidence in support of these claims, and the applicant gave evidence to the Tribunal during the hearing on 22 January 2024 in support of these claims.
CRITERIA FOR A PROTECTION VISA
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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
‘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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Identity
The applicant has been consistent since his arrival in Australia as to his name and date of birth, and that he is a Sri Lankan citizen of Tamil ethnicity, originating in [District 1]. Following his negative IMR his RSA checks were undertaken by the Department with the Sri Lanka authorities which confirmed that a person with his name and date of birth, and with a Sri Lankan ID card number matching that of the applicant’s, was issued a Sri Lankan passport [in] 2003. The delegate was therefore satisfied of the applicant’s identity.
The Tribunal finds that the applicant is who he claims to be.
Refugee criteria
The applicant says he has a well-founded fear of persecution in the form of significant physical harassment as an ethnic Tamil and a member of the particular social group sympathizer/worker for the LTTE and failed asylum seeker returning from Australia.[3]
Well-founded fear
[3] Applicant’s submissions received 15 January 2024 at [32]
The test for determining well-founded fear was clarified by the High Court in Chan v MIEA, and involves both a subjective and objective element.[4] The applicant must hold a genuine fear founded upon a ‘real chance’ of persecution.
[4] Chan v MIEA (1989) 169 CLR 379 at 396; DLB17 v MIBP [2018] FCCA 1299 at [16] See also the Explanatory Memorandum to the Bill introducing s 5J: Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p.171 at [1180]
Whether an applicant has a genuine fear is a question of fact. However, the decision maker is entitled to consider whether an applicant objectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held.[5]
[5] Emiantor v MIMA (1997) 48 ALD 635. See also Khan v MIMA [2000] FCA 105 at [25], and Melhem v MIMA [2000] FCA 1617 at [22].
For a fear to be well-founded, there must be a factual or objective basis for applicant’s fear. The Tribunal must make an objective examination of the facts to determine whether the fear is justified; that is, whether there is a real chance of the feared persecution arising.[6] The relevant date at which to assess an applicant’s claims to refugee status is the time that the decision is made, and not the time the applicant left his or her country or the time that the application is lodged.[7]
[6] Chan v MIEA (1989) 169 CLR 379 at 412, 396, 406, 429.
[7] MIEA v Singh (1997) 72 FCR 288.
The applicant says that if he returns to Sri Lanka he faces a sustained and systematic denial of his core human rights, including:
·     Significant economic hardship that threatens his capacity to subsist;
·     Denial of access to basic services, where the denial threatens his capacity to subsist;
·     Denial of capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist;
·     Denial of basic services, such as health, education, and the right to work.[8]
[8] Applicant’s submissions received 15 January 2024 at [33]

In support of his claims the applicant provided a copy of the DFAT Country Information Report: Sri Lanka (21 December 2021) (2021 DFAT Report) to the Tribunal annexed to his January 2024 Submissions. The applicant also provided the Tribunal with a copy of the UK Upper Tribunal decision GJ and Others (post civil war returnees) Sri Lanka CG [2013] UKUT 00319 (IAC); the UK Home Office Country Policy and Information Note on Tamil Separatism (March 2017); the UK Home Office Country Policy and Information Note on Tamil Separatism (June 2017); the UN Human Rights Council Report of the Working Group on Arbitrary Detention in Sri Lanka; a Refugee Council of Australia article titled ‘Tamils Still at Risk, UN Special Rapporteur Warns International Community’ dated 8 January 2019; a Tamil Guardian article titled ‘Tamil asylum seekers deported to Sri Lanka at risk of ‘surveillance, arbitrary detention and torture’ says Wigneswaran, dated 1 April 2021; a copy of a submission to the US Supreme Court in the matter of Department of Homeland Security v Thuraissigiam (2020) by the Professors of Srilankan Politics as amici curiae; a Human Rights Watch article titled “Sri Lanka: Tamils Detained for Commemorating War Dead” published online on 6 December 2023 at and the USA State Department 2022 Human Rights Report for Sri Lanka.
The Tribunal has read each of the above documents, as well as updated cases from the UK Upper Tribunal and the UNHCR.
Race
The Tribunal has accepted that the applicant is a Tamil originating in [District 1].
DFAT found that ‘[s]ome members of the Tamil community report discrimination in employment, particularly in relation to government jobs, though other sources suggest this is because many Tamils speak neither Sinhala nor English.’[9] DFAT further noted that ‘[m]embers 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.’[10]
Association with the LTTE
[9] 2021 DFAT Report [3.5]
[10] 2021 DFAT Report, [3.9]
The applicant’s submissions reiterated that he had been questioned by the authorities in school about a bombing that occurred, and that he and a handful of other boys had to report in every weekend for 6 months.
The applicant’s evidence to the Tribunal during the 2024 hearing was that he had started work straight out of school as a driver. The applicant said that he did not have any particular training, but he really liked driving. He said he got into driving through a cousin, who was a mason; his employer was a building contractor who took a broad variety of contracts, including building houses and, importantly, building tombs for LTTE war heroes. The applicant said that his employer built the LTTE war hero tombs as a personal endeavour, not under contract. The Tribunal asked the applicant whether he used the term ‘war hero’ to specify particular LTTE members, or whether he regarded every LTTE fighter who had died as a hero, and the applicant said that they were all heroes. The Tribunal notes that the applicant appeared to display strong and genuine emotion when he spoke of the LTTE fighters as ‘heroes’.
The applicant went on to tell the Tribunal about LTTE fighters of special status, including LTTE suicide bombers who were regarded as special heroes and fighters of special valour and bravery who were celebrated. He referred to Captain Miller as the first whose anniversary was separately celebrated. He also talked about Thileepan’s hungere strike, and noted that he had seen Thileepan’s skeleton in person at the medical college campus.
The applicant said that the tombs that he had delivered to were people of elevated status. He said that he could not recall the names of any of the names of people whose tombs he had delivered building supplies to.
Noting the applicant’s emotion, the Tribunal asked the applicant whether he was a supporter of the LTTE and the applicant said no, but that he had really wanted to join them and didn’t do so because he was the only person to support his family.
The applicant says that in 2006 he was stopped by the army twice; once when he was riding a [vehicle] and once when he was on a bicycle near an army camp. He says that he was recognised as having worked for the LTTE, held for 3 days in the camp and beaten. He says that his mother went to the Grama Sevaka who was the head of the village and asked him for help, and that the Grama Sevaka wrote a surety letter to the army officer which enabled the applicant’s release.
From the entirety of the applicant’s evidence, it appears that he has worked on some tombs for LTTE soldiers, and that he attracted the adverse interest of the authorities in that capacity. The Tribunal accepts the applicant’s evidence that he was released when the Grama Sevaka assured the army that the applicant would be in his control. That suggests to the Tribunal that the primary interest of the army was the future conduct of the applicant, not his past association with the LTTE. The Tribunal accepts that there was a risk associated with the applicant continuing to work as a driver for an employer whose personal endeavour was to build shrines to fallen LTTE soldiers, and that the applicant elected to depart Sri Lanka rather than risk continuing to work in that capacity.
Although the applicant displayed emotion when talking about fallen LTTE members, he strongly denied ever having been an LTTE member himself.
The Tribunal is not persuaded that there was any ongoing interest in the applicant after his release from the 3 days of detention he experienced in 2006. The applicant says in his 2024 Statement:
21. After I went to India, my neighbour … told my elder sister…was in [Country], that my mother and [younger] sister…were interrogated by the army officers about 10-15 times. My [elder] sister … contacted me and told me what happened to them.
22. Although my mother and [younger] sister were interrogated my mother did not tell me anything because in our culture the parents do not tell their children, even if they are adults, their problems. My mother did not want me to be worry because I was in India at that time. My mother also was afraid that I could go back and be killed.
His elder sister provided a witness statement to the Tribunal setting out the same event in this way:
…soon after [the applicant] left the place the Army patrolling officers come to my mother’s place to check about [the applicant’s] whereabouts. The local police also asked my mother and sister and they answered the officers that he left to India and they have no contacts of him.
My neighbour friend … always informs me that the officers are on rounds to know whereabouts of my brother. S he told me that my mother and sister were interrogated 10-15 times by the army officers. Since my mother and sister were under threat of these officers and they don’t keep quiet they may even rape or do physical torture to young girls so that they can tell the truth about my brother.
So, I and my brother decided to send my mother and sister from [District 1] to Columbo…
There is no indication in either the applicant’s or his elder sister’s statement that any enquiries for the applicant were subsequently made to his mother or sister in Columbo.
The Tribunal gives little weight to the evidence that the applicant’s sister told the applicant that his mother’s neighbour told her that the army had come looking for him after his departure to India. That evidence has been conveyed through too many different people, and there is considerable scope for miscommunication or misunderstanding as to who was visiting the applicant’s mother, for what reason/s and how many times. Even if the applicant’s elder sister is honest and forthright about what she believes the neighbour told her, the Tribunal has no way of assessing the neighbour as to honesty, accuracy, dramatic license, or actual level of knowledge about the intentions of the men the neighbour saw.
The Tribunal finds that the applicant’s loose association with the LTTE some 18 years ago does not materially increase the chance of risk to him as a Tamil person in Sri Lanka in the present. There is, in any event, little evidence to suggest that his association with the LTTE was documented in any way or recorded on any database that would be readily accessible this long after his last departure from Sri Lanka.
Sur place activities
The applicant’s 2024 Statement contains the following evidence:
Membership of the [Organisation 1]
23. I am a member of the [Organisation 1] roughly 2019.
24. I have attend the Heroes ‘Day (27 November) roughly 3 times because of pandemic.
25. Unfortunately, I lost all my photos when I lost my mobile.
The applicant has provided very little detail about his involvement with the [Organisation 1], and no independent evidence.
With respect to other organisations, the applicant has submitted a letter of support on the letterhead of [Organisation 1] stating:
I am writing to express my enthusiastic support for [the applicant] is a dedicated and exemplary individual who has made significant contributions to our community. I have had the pleasure of knowing his for 4 years and during this time, I have witnessed firsthand the positive impact he has had on our community.
[The applicant] is a [vehicle] driver and do some other job and has demonstrated outstanding leadership and commitment in their professional life. Moreover, he extends these qualities beyond the workplace and actively engage in community service and volunteer work.
One of his most admirable traits is dedication and helping mind. [the applicant] consistently goes above and beyond expectations, and his passion for making a difference is truly inspiring.
Furthermore, [the applicant] is a team player who collaborates seamlessly with others. He possesses excellent communication skills and always strives to foster a sense of unity and cooperation within our community.
In addition to his professional and community involvement, [the applicant] is known for hard work, dedication and helping mind. These qualities make him not only an asset to our community but also a delightful individual to know on a personal level.
Thank you for considering my endorsement of [the applicant]. Please feel free to contact me if you require any additional information.
The Tribunal notes that, at best, the applicant’s involvement in the [Organisation 1] and other Tamil organisations appears to be no more than 4 years old and was commenced later than his SHEV application. It is noteworthy that the letter of support does not speak of the applicant’s passion for a cause or any risk associated with his activities in Australia if he returns to Sri Lanka; it speaks of his camaraderie and social involvement.
The Tribunal is not satisfied that the applicant has been involved in any Tamil associations in Australia for a purpose other than strengthening his claims for protection. The Tribunal is in any event not satisfied that the applicant’s involvement has been documented in any way that is likely to come to the attention of the Sri Lankan authorities.
Scar
The Tribunal observed that the applicant is missing a part of one [body part]. There is no expert or medical evidence before the Tribunal as to the cause of this injury. The applicant says that it occurred in a shell explosion. The Tribunal accepts that it has the appearance of an injury that could possibly have been incurred in action or in guerrilla warfare, although there is nothing to obviously distinguish it for a lay person from an industrial accident or self-harm.
The Tribunal accepts that it puts the applicant in the particular social group “Tamils who have injuries to their hands that were or might have been incurred in a shell-explosion”. It is a scar, and there is a real chance that it might attract the interest of the authorities if it came to their attention in a context that invested it with potential significance.
Relatives who were LTTE Members
The applicant’s written evidence to the Tribunal is that he had a cousin who was a member of the LTTE when the applicant was 10 or 12 years old.[11] The applicant says that the cousin was killed and that he didn’t understand too much about what was going on because he was a child. He told the Tribunal during the hearing that he had many cousins, across multiple generations, and that it was confusing.
[11] Applicant’s statutory declaration dated 17 January 2024, [2] – [6]
The DFAT Country Report for Sri Lanka contains the following statement about relatives with are LTTE members:
3.58 The Sri Lankan Government acknowledges that former LTTE members and their families may continue to face discrimination both within their communities and from government officials. DFAT cannot verify claims that people have been arrested and detained because of their family connections with former LTTE members, but understands that close relatives of high-profile former LTTE members who are wanted by Sri Lankan authorities may be subject to monitoring. The ITJP, based on interviews with Tamils who have fled the country and are resident overseas, states that family members of former or suspected former LTTE cadres have been subject to harassment and detention
The applicant has not suggested that his family has had any recent or high-profile involvement with the LTTE. The applicant was born in [Year] and was ’10 – 12’ in the period [Years]. On his evidence, his recollection of his family involvement with the LTTE is that a cousin was a member who was killed more than 30 years ago.
The Tribunal does not accept that this level of historic familial connection with members of the LTTE who do not have a high profile increases the risk to the applicant.
Disability
There is also evidence before the Tribunal that the applicant may be suffering from depression. The Tribunal has been provided with a copy of a letter from [Dr D] dated 25 January 2024 certifying that the applicant has anxiety/depression and is ‘on mirtazapine and psychologist care’. The applicant provided the Tribunal with an extract from The Complete Home Guide to Medication (Warwick Carter) showing the entry for Mirtazapine, showing that it is used to treat ‘severe depression’ with a dosage of 15-60mg daily. The proscription that the applicant submitted to the Tribunal in December 2023 shows that he has been proscribed 15mg daily.
There is no detailed medical evidence before the Tribunal, such as a report from a treating psychologist. The referral letter provided to the Tribunal in December 2023 states that he suffers from poor sleep, low self-esteem, depressed mood, anxiety and financial problems. The dose of Mirtazapine proscribed is at the mildest end of the recommended dose. There is insufficient information to find that there is a real chance that the applicant is suffering from a serious mental health condition, as opposed to experiencing mild depression in the context of difficult circumstances.
The applicant’s evidence in his 2024 statement is that:
26. In the last 5 years I have been taking ‘Mirtazapine’ to treat my depression.
There is no evidence to support that assertion; the only evidence before the Tribunal dates from late 2023 and does not make reference to any longer history of mental illness.
The Tribunal is unable to be satisfied that the applicant has a diagnosed long-term mental illness that could comprise an immutable characteristic, as opposed to a transient mood disorder.
With regards to the cumulative effect of the applicant’s mental health on any other claim, the Tribunal notes that the 2021 DFAT Report states that Sri Lanka does offer some mental health services, and that local sources “suggest the health system has a strong mental health focus with a good cohort of trained counsellors, and a number of NGOs active in the sector.” The Tribunal does not accept that the applicant would not be able to access any treatment in Sri Lanka.
Illegal departure from Sri Lanka
The Tribunal has doubts about whether the applicant’s alleged illegal exit from Sri Lanka comprises an immutable characteristic, for the purpose of the legislation, but is prepared to accept that it may have a cumulative impact on the applicant’s claims.
The Tribunal therefore must make findings about the nature of the applicant’s departure from Sri Lanka and the necessary manner of his return.
The Immigrants and Emigrants Act (1948) (the I&E Act) governs exit from and entry to Sri Lanka.[12] Sri Lankans who depart Sri Lanka without a passport or by boat from an unapproved port commit a criminal act punishable, if successfully prosecuted, by a term of imprisonment or fine.[13]
[12] 2021 DFAT Report, [5.21].
[13] 2021 DFAT Report, [5.21]
The applicant’s evidence has been inconsistent as to when and how he finally left Sri Lanka. At his entry interview he stated that he departed Sri Lanka by boat for Australia from a beach near Colombo. He repeated this claim in his RSA protection claims and again in his IMR Assessment. However, in his ITOA Assessment he said that he fled to India in 2006 and lived there until he came to Australia by boat in May 2010. He said that his statements about returning to Sri Lanka in 2007/2009 and remaining there until 2010 are not true, and that he made those statements under stressful conditions. He offered the following explanation:
[4]…my initial claims that I provided to the department when I first arrived in Australia were fabricated because I was instructed by the smugglers who arranged my journey from India to Australia to not tell the Australian government I was coming from India. I provided the correct information in my ITOA statement.
[5] I was not truthful at that time because I was afraid of the consequences from the Australian authorities after being warned by the smugglers in India. The smuggler told me not to tell them about my LTTE involvement or that I had left to come to Australia from India or the Australian authorities would turn our boat around and send us back as soon as we were intercepted. At that time, I had no knowledge of the Australian government authorities or what they might do to me if I told them I was a Sri Lankan refugee that had been living in a refugee camp in Tamil Nadu for the past 4 years.[14]
[14] SHEV Statement
The applicant described his departure from Sri Lanka to India during the hearing on 22 January 2024. He said that he left Sri Lanka by boat via [Location 2] and that the EPDP movement had helped him find the boat to India. He paid money for a boat ride out into the sea and was then transferred to a fisherman’s boat to be taken into India. He said that it was too dangerous a journey to take his mother and sister on, or he would have taken them with him. On his arrival in India he says that he was taken to a detention centre in [Location 3], in the Indian state of Tamil Nadu, where he was held for 3 days. He told the Tribunal during the hearing that he was released from his initial detention after 3 days and was then provided with a small hut that shared a common toilet. He says that he was given 400 LKR per month and that he bought his own food. He says that his reason for leaving was that he could not find work, and that he considered his lifestyle poor.
The applicant’s story is consistent with well publicised information about illegal movement from Sri Lanka to India, facilitated by Indian fishermen.[15] The 2023 DFAT Report says the following about returnees from Tamil Nadu:
3.65 Approximately 92,900 Sri Lankan Tamil refugees live in the southern Indian state of Tamil Nadu, most of whom fled the war in the mid-1980s, or are the descendants of those who fled (almost 60 per cent are second- or third-generation). The majority of Sri Lankan Tamil refugees (approximately 58,900) reside in 106 camps administered by the Tamil Nadu Government. Camp refugees are registered with Tamil Nadu’s Commissionerate of Rehabilitation and Welfare (CoRW) who provide education, health care, social security and amenities. The state government in Tamil Nadu provides camp-based Sri Lankan Tamils with an allowance and allows them to send their children to school.
3.66 The remainder live in host communities outside the camps. Refugees living outside the camps are required to register at their local police station and to re-register if they move between police precincts. In addition to this cohort, there is a smaller undocumented group of refugees residing outside the camps who have not registered for fear of police harassment. Refugees, whether camp or non-camp, cannot obtain employment in the formal sector – options are limited to daily-wage labouring or self-employment. Pre-COVID-19, refugees living outside the camps were generally better off than those in the camps, and often ran successful businesses…
3.68 DFAT understands there have been regular illegal boat movements carrying Sri Lankan Tamil refugees from Tamil Nadu to Sri Lanka and back, in order to visit relatives, usually with the assistance of local fishermen…[16]
3.70 A sample of returnees from Tamil Nadu told DFAT that they are glad to have returned to Sri Lanka and would recommend return to other refugees. While there is some social stigma attached to returnees from Tamil Nadu, sources told DFAT locals were generally welcoming and returnees did not feel they were treated differently. However a small number, around 100, had secretly returned to India over the past few years, after they had found their land had been reclaimed by the state, their properties were occupied by other families, and/or the resettlement support was not sufficient to build a new life in Sri Lanka.
3.71 Local sources said they were not aware of returnees from Tamil Nadu being subjected to rehabilitation for real or perceived links to the LTTE since the end of the war, although few former LTTE members are thought to have returned to Sri Lanka from Tamil Nadu. DFAT understands that a small number of low-profile former LTTE members, who performed low-level, non-combat functions for the group, returned to Sri Lanka from Tamil Nadu with UNHCR assistance in 2019. DFAT is not aware of returnees from Tamil Nadu being subjected to monitoring or harassment by the authorities.
[15] See for example Detention of Lankans: NIA holds enquiries in Tamil Nadu's Rameswaram (deccanherald.com) which the Tribunal accessed on 5 March 2024.
[16] 2021 DFAT Report

The Tribunal accepts that the applicant departed Sri Lanka by boat in 2006 and travelled to India, arriving in Tamil Nadu and remaining there for around four years.

100. However, the Tribunal does not accept that the applicant travelled directly to Australia from India.
101. In his entry interview, the applicant told the authorities that he had returned to Sri Lanka in 2009. He reiterated this position in his RSA claims and in his IMR claims. The applicant did not correct his statement that he had returned to Sri Lanka before travelling to Australia until the ITOA Assessment in 2015.
102. In his 2011 IMR Submission, which was on the letterhead of [Lawyers], Solicitors and Registered Migration Agents, the applicant made the following submissions about the RSA decision:
…the Case Officer found that [the applicant] had given inconsistent evidence and the problems he faced in Sri Lanka and found that he had embellished his claims. He accepted that [the applicant] had faced some problems with the authorities in Sri Lanka before 2009, but concluded that any problems he had faced were part of general security measures and did not indicate that he was of continuing adverse interest to the authorities.
[The applicant] states that he has always tried to tell the truth and he cannot explain how these apparent inconsistencies arose. He states that the following is a true account of his problems in Sri Lanka.
…
[The applicant] returned to Sri Lanka by boat in about July or August 2009…

103. Those submissions were made after the applicant had the benefit of legal advice, and in the context of specifically engaging with inconsistencies in his previous accounts. If, as the applicant states, he had lied about returning to Sri Lanka because he was advised to do so by people smugglers then the 2011 IMR Submission provided him with a reasonable opportunity to correct the misinformation. Instead, he pressed that the “true account” included that he had returned to Sri Lanka by boat in about July or August 2009.
104. The Tribunal finds that the applicant returned to Sri Lanka by boat in about July or August 2009 and remained there until his departure for Australia in 2010. The Tribunal accepts that the applicant left Sri Lanka again in 2010 by boat from a beach near Colombo and that his departure was an offence under the I&E Act.
105. The 2023 DFAT Report suggests the following in respect of the consequences of the offence:
5.23 While those convicted of the offence of illegal departure may theoretically face a custodial sentence, in practice, local sources suggest, a fine is always imposed and typically this fine is LKR 50,000 - 200,000 (AUD350-1400). Sources suggest those who are unable to pay the fine are permitted to pay in instalments but, if still unable, may be imprisoned for 14 days.
5.24 The severity of the fine for those charged under the I&E Act does not necessarily increase for those who have departed Sri Lanka illegally on more than one occasion…

106. The Tribunal is not satisfied that the penalty associated with the offence would be anything other than a reasonable punitive measure for breaching a law of general application.
Returnee from Australia
107. The 2023 DFAT Report for Sri Lanka includes the following observations:
5.31 Some refugees and failed asylum seekers reported being pressured upon return to their communities, chiefly for being beneficiaries of financial reintegration assistance. Others experienced resentment upon return because they spent family funds on what proved to be a futile attempt at irregular migration. Overall, DFAT understands that societal discrimination is not a major concern for returnees, including failed asylum seekers. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had not experienced significant societal discrimination following their return.
5.32 DFAT assesses that returnees face a low risk of societal discrimination upon return to their communities. DFAT further assesses that, where it occurs, surveillance of returnees can contribute to a sense of mistrust of returnees within communities.

108. The Tribunal does not accept that being a returnee from Australia gives rise to a real chance of serious harm to the applicant.
Cumulative effect of claims
109. The Tribunal reiterates its finding that in or around July 2009 the applicant returned to Sri Lanka and remained there until at least early 2010. He did so at a time when he was safe in India, albeit not as economically comfortable as he would have liked. That speaks strongly against the applicant having a fear of persecution in Sri Lanka as of July 2009.
110. The Tribunal has considered whether the applicant came to harm during this period of return to Sri Lanka. His early claims included a written claim that he had been repeatedly taken away, beaten and questioned, and accused of being LTTE during this period. It appears that he did not repeat this claim during his IMR interview. The author of the IMR Recommendation wrote:
The claimant advised at the IMR interview that in around August/September 2009, 15 days after he returned to [Location 1], he was again questioned by the army. He claims that the officers knew that he had worked in the area and they wanted him to identify possible LTTE members. When initially discussing this incident the claimant did not mention any ill treatment. After a break when I returned to this incident he claims to have been held for 3 hours and beaten for an hour and a half with poles while held at the army camp at [Location 1] . He confirmed at the IMR interview that he remained in [Location 1] for four months and maintained this time he was visited by the army 15 times. This is in contrast to his initial entry interview where the claimant alleged he was detained in [Location 1] in January 2010. In his statutory declaration of August 2010 the claimant only mentioned that he was pursued by the army in [Location 1]. In comparison at the RSA interview he claimed that he spent two months in [Location 1], the same soldiers were there as in 2006, they stopped him on one occasion and questioned him while he was travelling on the road as they did not believe that he had been in India. In later submission by his agent in February 2011 it is alleged on behalf of the claimant “returned to Sri Lanka by boat in about July or August 2009. He went to stay with an Aunt in [Location 1]. While he was there he was visited by the police as he was new to the area. When they discovered that he had travelled to and from India by boat they suspected he might have LTTE links and detained him. He was released after he agreed to give them names of people in the LTTE.” The claimant later denied at the IMR interview he had ever given the army any names of LTTE members. The claimant has been unable to present a consistent claim in relation to this incident. I do not accept the claimant’s submission that he was beaten by the army on this occasion. The IMR interview was the first time that the claimant alleged to have been beaten by army officers in [Location 1] in 2009, almost as an afterthought. When providing a reason why he was detained by the army on this occasion he has presented varying accounts. It was because the same officers remembered him in 2006, or the officers knew he worked in the area in 2006 and may have been able to identify LTTE members, or that he had been in India and possibly knew LTTE members who had fled to India. I accept that the claimant may have been questioned in [Location 1] in August/ September 2009 as to whether he could identify any LTTE members only. I find that this again was part of ongoing intelligence gathering operations by the security forces at the end of the war, not that the claimant was particularly targeted by the authorities as he had claimed. I do not accept that he was considered by the army to be an LTTE member. I do not accept that he was questioned by the army at least 15 times while in [Location 1] and he was effectively in their custody. The IMR interview was the first time the claimant had made this claim and if he was in custody I do not accept that he would have so easily have obtained permission to travel to [Town 1]. I find that he has substantially exaggerated his claim in this regard.[17]
[17] IMR Recommendation at [85]

111. The applicant now says that he was not in Sri Lanka at all during this period. The Tribunal has rejected his evidence in this regard.
112. In the circumstances, the Tribunal is not satisfied that the applicant experienced any harm on his return to Sri Lanka in 2009.
113. There have subsequently been two relevant changes which the Tribunal has identified in the applicant’s circumstances. The first is that the applicant is now faced with returning to Sri Lanka as a failed asylum seeker on a temporary travel document. The second is that the applicant has been involved in sur place activities with Tamil organisations in Australia. The Tribunal cannot have regard to risk associated with the second of these changed circumstances, because the Tribunal is not persuaded that the applicant engaged in the sur place activities for any reason other than the strengthening of his protection visa application.
114. The Tribunal is satisfied that returning to Sri Lanka through lawful channels from Australia is a very different proposition for the applicant than returning to Sri Lanka by boat from Tamil Nadu and gives rise to different risks. The DFAT Report strongly suggests that the applicant will be questioned by CID on arrival, detained, and charged with breaching the immigration legislation. However, the essential and significant reason for that risk to the applicant is his failure to comply with a law of general application.
115. Cumulatively then, the Tribunal has considered whether the applicant faces a real chance of serious harm as a Tamil person who is a member of the particular social group “Tamils who have injuries to their hands that were or might have been incurred in a shell-explosion”, who will come to the attention of the authorities because of their illegal departure from Sri Lanka, and who have some very mild historic associations with the LTTE. The Tribunal is not persuaded that in the applicant’s specific circumstances the cumulative effect of these claims is to create a real chance of serious harm. The Tribunal does not consider that the applicant’s depression/anxiety is sufficiently serious or of sufficient longstanding to elevate the risk.
116. As to the applicant’s specific concerns, the Tribunal makes the following observations:
a.There is no evidence to support that the above matters would give rise to significant economic hardship that threatens the applicant’s capacity to subsist.
b.The applicant was able to work as a [vehicle] driver notwithstanding his race, his scar and his family connections with the LTTE at a time when tensions were far higher in Sri Lanka than DFAT currently reports them to be. The Tribunal is not persuaded that there is a real chance that the applicant would not secure work as a [vehicle] driver again, notwithstanding his depression/anxiety – there is no evidence of a level of severity that would reduce his working capacity to nothing.
c.There is no evidence that Tamil people are denied access to basic services in Sri Lanka or have restricted access to health care. There is no evidence that the applicant’s level of connection or involvement with the LTTE rises to a level that would prevent his access to basic services.

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

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).

119. The applicant submits that there are substantial reasons for believing that, as a foreseeable consequence of the applicant being removed to Sri Lanka, there will be a real risk he will suffer harm in the form of cruel and inhuman treatment or punishment and degrading treatment or punishment.[18]
[18] Applicant’s submissions received 15 January 2024 at [34]

‘Cruel or inhuman treatment or punishment’ for the purposes of s 36(2A)(d) is exhaustively defined in s 5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is inflicted on a person, so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].

121. However, ‘cruel or inhuman treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

The final type of significant harm listed in s 36(2A) is degrading treatment or punishment: s 36(2A)(e). Degrading treatment or punishment is exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].

123. However, ‘degrading treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
124. The DFAT Report suggests that torture is still used by Sri Lanka police to extract confessions, and that it is still common in prisons.[19] The Tribunal finds that the applicant will come to the attention of the CID on his return to Sri Lanka, may be held for a period, and charged with breaching the immigration legislation in Sri Lanka. The fact of his offence is proved by the immigration records, and there is nothing before the Tribunal to suggest that he is likely to be tortured for a confession; such a confession is wholly unnecessary to the prosecution of illegally leaving the country. On the country information cited above, there is not a real risk that the applicant will be imprisoned; the penalty that is typically imposed for this offence is a fine.
[19] 2021 DFAT Report, [4.14]
125. The Tribunal is not satisfied that the applicant’s loose past association with the LTTE will come to the attention of the authorities on his return to Sri Lanka. He has a demonstrated track record of misleading an authority at an entry interview for his perceived benefit, and the Tribunal finds that there is not a real risk that he will volunteer that he drove [vehicles] for a builder who was constructing tombs for LTTE heroes, even if asked about past association with the LTTE on entry into Sri Lanka. He is equally unlikely to provide details of his association with Tamil organisations in Australia.
126. Given the elapse of time since the end of the war, the Tribunal does not consider that the applicant’s missing [body part] is sufficient to enliven a real risk that the applicant will be tortured for information about the LTTE or for any other purpose.
127. The Tribunal is not satisfied on the very limited available evidence that the applicant’s depression/anxiety is of sufficient severity to make him especially vulnerable such that questioning, short detention and a fine would constitute significant harm.
128. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

130. The Tribunal affirms the decision not to grant the applicant a protection visa.
Jessica Henderson
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…