1906024 (Refugee)

1906024 (Refugee) [2023] AATA 1031 (24 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Joshua Le Vay
CASE NUMBER:  1906024
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Kate Millar
DATE:24 January 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958.

Statement made on 24 January 2023 at 3:28pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – imputed political opinion – anti-government or separatist – low-level Liberation Tigers of Tamil Eelam (LTTE) combatant – forcible recruitment – detained, interrogated and tortured by Criminal Investigation Department (CID) – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 440, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a citizen of Sri Lanka who came to Australia [in] February 2010.
According to the decision of the delegate, this matter has been before decision makers on several occasions in the period from 2010, with decisions being made at a Refugee Status determination, Independent Merits Review and an International Treaties Obligation Assessment.
On 28 August 2018 the applicant lodged an application for a Temporary Protection visa (Subclass 785). This application was refused by a delegate of the Minster on 1 March 2019 because the delegate was not satisfied that the applicant was a refugee, or that he otherwise met the criteria for a protection visa.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant appeared before the Tribunal on 15 August 2022 to give evidence and present arguments and was represented in relation to the review. The applicant wanted a support person to attend, and the support person was issued a direction under s 440 of the Act not to record, divulge or communicate any information she became aware of in the proceedings. Final submissions were received on 21 October 2022.
BACKGROUND
The applicant was born in [Town 1] and has three sisters and a brother. His father worked as a [occupation] and in labouring jobs and his parents live in [Town 2].
He has two sisters living in [Town 3], and one sister who lives with his parents. His brother lives with his parents, but previously lived in Columbo to study. His sisters are married and have children, and he says they do not have any problems with the authorities. He said his brother was too young during the civil war and does not have problems with the authorities.
The applicant was educated to ‘O’ Levels, which he said was the equivalent of year 10 in Australia. After finishing his education, he worked in a shop owned by his family and did farm work in [Town 2] until he was displaced in 2008. His parents were in a camp when he came to Australia and were resettled in 2011 and 2012.
CLAIMS
In a statutory declaration accompanying his application for a protection visa dated 10 August 2017, the applicant claimed:
·In around 2006, the Liberation Tigers of Tamil Eelam (LTTE) started forcing young Tamils like him to fight for them.
·He gave up his business and hid at the family farm and assisted his father on the farm. He could hide from the LTTE in thick jungle. His family told the LTTE he had left the area, but the LTTE did not believe them.
·In 2008 during one of these visits, the LTTE took his father and forced him to work for them digging bunkers for approximately three months as the LTTE wanted him to fight for them.
·In November 2008 he was captured by the LTTE, who took him to camp and wanted to train him to fight. He was at the camp for approximately one month and was made to undergo the full training to become a member of the LTTE. After the training he was sent to participate in warfare against the Sri Lankan Army (the SLA).
·He said he was only in training for 14 days in his previous statements because he was fearful of an adverse decision if his involvement with the LTTE was known. He now realises the need to provide truthful statements and wants to correct his statements to say he was in fact a member of the LTTE for approximately 6 months.
·One night when Sri Lankan forces dropped a bomb in the area he escaped with another young Tamil. He met up with his family and they fled together.
·Everyone was displaced in fierce fighting and his aunt was injured during shelling by Sri Lankan forces.
·He and his family walked to Nodumgani which was controlled by Sri Lankan forces. The males and females were separated, and he was questioned and his photograph taken. They told him they would kill him and threatened him to find out if he was an LTTE member. After this they were taken to Vavuniya Kadirgamar Camp under the control of the Sri Lankan forces.
·He was separated from his family and regularly beaten and questioned in the camp by the Criminal Investigation Department (CID). In April 2009 the CID took him at night to an area where they would question people. He was beaten and questioned about his involvement in the LTTE and was tortured; after 3 days he was able to escape.
·He had seen many young Tamils like him be killed by the CID or Sri Lankan forces at the camp. They would tell the parents of those they killed that the person had escaped.
·He escaped through the fences and decided to flee Sri Lanka. He stayed with a relative for a few days and made arrangements with a people smuggler to leave the country. The smuggler organised for him to travel to India by plane and after 2 weeks arranged his travel to Australia.
·At the time the smuggler said they should not disclose their travel to India and instead say they had travelled directly from Sri Lanka so he did not disclose his actual route in earlier interviews with the Department.
·He believes as a former member of the LTTE who escaped the army he will be mistreated by the authorities and will be detained, tortured and possibly killed by Sri Lankan forces and the CID.
In a further statutory declaration dated 20 June 2019, he claims:
·He did not disclose his claim to be a member of the LTTE for approximately 6 months for the Refugee Status Assessment, Independent Merits Review or International Treaties Obligation Assessment because he was fearful of receiving an adverse ASIO assessment.
·After receiving a negative decision he contacted his mother who said he was captured in January 2008 and not November 2008 as he previously claimed. As he said this in his entry interview, he thought it best to be consistent with this date.
·His memory is poor due to trauma.
·He was captured by the LTTE around June 2008 and forced to undergo a month’s training to be an LTTE cadre.
·He was taken to Subesan camp in Muthaiyankattu Mithu. This was a large camp used exclusively for training fighting cadres, and training was conducted in batches of 150. The person in charge of the camp was called Ellian.
·They woke up at 5am and ran for an hour before practising flag hoisting and reaffirming the LTTE oath. After breakfast, from 9am until 12 they were taught how to conduct military exercises such as physical drills, how to advance on a bunker to avoid detection, climbing over fences, jumping over pits holding weapons, rope climbing, and advancing over difficult terrain, and were taught how to use and operate T56 rifles. In the afternoon they had lectures on weapons and further weapons practice.
·They had a completion ceremony at the end of one month in which they were given uniforms and an LTTE name.
·After the training he was posted to Ambagamam, which was under LTTE control. His role was to man a point to prevent the SLA from advancing. He was armed with a T56 rifle because that was what he was trained in but others had AK-47 rifles.
·Sometimes in the morning one or 2 of them were required to perform surveillance of the area surrounding the post while others remained at the post. At mealtimes one person would go to the central base to collect their meals. One person in the team had a wireless and was responsible for communication. At night they worked in shifts.
·During the time he was at Ambagamam, the SLA did not advance against them in daylight. At night they would hear movement and were required to fire their guns in the direction of the noise. In the time he was there, battles were being fought in Omanthai and Kokkuthoduvi.
·He escaped from the LTTE during an air raid when the Sri Lankan Army were dropping bombs on Ambagamam and he used the cover to escape. He was wearing civilian clothes at the time. They were not always required to wear their uniforms, and when at the post wore nondescript dark civilian clothes.
·After escaping he returned to his parents’ village. Shortly after he arrived, the village was captured by the SLA.
·He and his family moved to Nedungani (Nodumgani) with a large group of Tamils from the village. There they were captured by the SLA. They were temporarily detained in a school where they were separated into female and males. The males were separated, with strong young men suspected of being in the LTTE detained separately. He was questioned and photographed, and everyone was brought to Vavuniya Kadirgamar Camp.
·He was taken and interrogated by the CID about his involvement in the LTTE. He was tortured and asked to admit to being in the LTTE. He refused to admit he was in the LTTE which led to more torture; he was whipped with wire cables, beaten with plastic pipes filled with soil and hung upside down on a wall. They would get a gun, show him the bullets and place the gun on the table. He stayed at the camp until the end of the war.
·Around the end of the war he escaped from the camp using a hole in the fence wiring.
·He engaged an agent to obtain a passport. In Sri Lanka it is easy to obtain a genuine passport by fraudulent means. He fled to India in November 2009 using the passport obtained for him.
·He did not previously disclose he was an LTTE fighter because in detention he was told horror stories that people who had told Australian authorities they were in the LTTE were labelled as terrorists, and he was told if he said he was a fighter and had obtained training he would be deemed ‘unsafe to live in the Australian community’. He was terrified of saying or doing anything that would prevent him being accepted as a refugee and severely traumatised by the torture he had suffered in the camp.
·While he had a migration agent to assist him with the Department assessment, at no stage did his agent tell him Tamils were no longer being given adverse assessments by ASIO. It was not until 2017 or 2018 he heard of Tamils who had disclosed they were part of the LTTE being given protection visas and for this reason he decided to tell the truth.
·He fears being arrested, detained and tortured if he returns to Sri Lanka because he is a former member of the LTTE and a former cadre. He states the authorities have a record that he is a suspected former member but because he left Vavuniya Camp before they completed their assessment his file will remain open and show he is unvetted. The fact that he fled the country will confirm the authorities’ suspicion that he was an LTTE member.
In a further statement dated 18 June 2022, the applicant claims he has gathered with friends in Darwin to mark Mullivaikal Remembrance Day and Heroes’ Day in commemoration of LTTE members and civilians killed in the civil war. He attaches photographs which he says are of his attendance, which he claims a friend has posted to his Facebook account, and his friend also posted some video footage of the same gathering. He claims to be concerned the Sri Lankan authorities will discover his attendance at these events, which will give them further reason to mistreat him.
CREDIBILITY
The applicant acknowledges he has previously provided untruthful information in applications and interviews regarding his claims for protection.
Specifically, he acknowledges he has been untruthful about his previous role in the LTTE, and about the manner in which he left Sri Lanka.
He initially claimed to have avoided being a member of the LTTE; however, he now claims to have been forcibly recruited and to have been a member for approximately 6 months.
The applicant initially claimed to have left unlawfully in the entry interview and an Independent Merit Review interview, and to fear harm as he had left Sri Lanka unlawfully. In the interview for the International Treaties Obligations Assessment, it was put to him that checks with the Sri Lankan authorities conducted in 2011 confirmed he was a citizen of Sri Lanka with a last known address in Vavuniya. He had a current national identity card and held a Sri Lankan passport. In this interview, the applicant said he had never received a Sri Lankan passport or left Sri Lanka on a Sri Lankan passport. In his later 2017 statutory declaration he stated he left Sri Lanka by air to India, and then travelled from India to Australia by boat.
The applicant has acknowledged he has been untruthful at interviews about his claims. His reasons for being untruthful about his claims to be a member of the LTTE are considered further below.
Being untruthful in the past does not of itself mean that he is currently being untruthful, as an applicant for a protection visa may fear harm if returned; however his repeated untruthfulness requires his current claims to be scrutinised with care.
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). 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The current DFAT report is the DFAT Country Information Report Sri Lanka dated 23 December 2021 (DFAT Report), and the Tribunal has had regard to this report and the relevant guidelines.
CONSIDERATION OF Claims and evidence
Leaving Sri Lanka unlawfully
The applicant originally claimed that he left Sri Lanka unlawfully. He acknowledged later that he left Sri Lanka on a passport, and told the Tribunal it was a genuine passport. He said he was untruthful about how he left Sri Lanka as the agents said he had to say he departed from Sri Lanka and not from India, and because he feared his parents and siblings would be harmed.
On being asked again why he feared his family would be harmed if he said he left legally from Sri Lanka, he said the travel agents arranged his departure, and they said to say that he left from Sri Lanka. He said he is now aware that lying about his passport and his family being harassed are not related as these proceedings are confidential.
The Tribunal does not accept he was fearful for his family if he had told the truth about how he left Sri Lanka and rejects his account of why he was untruthful. It finds he was untruthful to bolster his claims.
Membership of the LTTE
The applicant claims he did not disclose his involvement in the LTTE for fear of being labelled a terrorist and that he would be deemed to be ‘unsafe to live in the Australian community’.
The Tribunal considers this likely, given reports of people being detained because of an adverse security assessment, with some reports stating most of those detained had links to the LTTE.[1] The LTTE has been a proscribed terrorist organisation in Australia,[2] and the Tribunal accepts that the applicant was fearful of being detained and did not disclose his LTTE training and involvement.
[1] A phonecall, a meeting, then indefinite detention: the refugees at the mercy of Asio | Australian immigration and asylum | The Guardian, DFAT [3.39]

The applicant has now provided a detailed account of his training and involvement with the LTTE and claims to have been a member of the LTTE for approximately 6 months. He claims he was an unwilling combatant, who was forcibly recruited and escaped when he was able to do so. The Tribunal accepts this is consistent with reports of the involuntary recruitment of Tamils and the requirements for at least one family member to join the LTTE.[3] This is consistent with his area of origin, his ethnicity and his age. His account of his father being forced to provide labour to pressure him to join the LTTE is also consistent with country information.

[3] OHCHR Investigation on Sri Lanka: Fact sheet 5: Abduction and forced recruitment of adults, recruitment and use of children in hostilities

Political activities in Australia

Since being in Australia the applicant said he has attended martyrs’ day, and a friend took photos and put them on Facebook so the Sri Lankan government may have records. It was put to him that he has been untruthful in the past, and why should the Tribunal accept that his friend has put photos on Facebook. He said he gave evidence of the post, however what he had provided was photographs at someone’s house.
The applicant provided photographs of himself and four others placing flowers in front of a television screen and some framed photographs. He said this was at his friend’s house, who conducts memorials every year. He said that a friend had posted photographs and a video on Facebook, and he could provide footage on request. In the absence of further information to show that this has been posted or that it has otherwise come to the attention of Sri Lankan authorities, the Tribunal does not accept that these photographs have been distributed or that they would have come to the attention of the Sri Lankan government.
The applicant said he is not a member of any Tamil organisation but does attend Tamil temples and attends events organised by the temple. He provides money to the temple for prayers. He does not provide funding to any Tamil organisations and has not attended any protests. The Tribunal finds that he has not been a part of a separatist party or protests while in Australia.
The Tribunal considers the applicant does not hold separatist views, and does not engage in separatist activity that has brought him to the attention of the Sri Lankan government.
Attempt to leave Sri Lanka
The applicant claims to have attempted to leave Sri Lanka in 2002 by boat in the period of the ceasefire and peace talks. He said he was caught and was fined and then released, with the fine being LKR15,000, which he paid. He said he was released on condition that he report to the CID on a monthly basis. He paid the fine and says he was not convicted of any offences.
The decision of the delegate records that he said he tried to leave Sri Lanka in 2002 or 2004 and was detained in jail for seven months before being released on LKR50,000 bail, and he was required to report once a month to the CID office in Columbo, which he did until 2005 when the roads closed due to the resumption of fighting.
In 2021, DFAT reported that:
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.[4]
[4] [5.23]
The Tribunal asked why he was required to report if he had paid the fine and he had been released, and the applicant said the matter was still pending.
The applicant was advised that the requirement to report to the CID is not consistent with country information and asked if there was anything that would establish that he was required to report on a monthly basis. He did not have anything to support the assertion that he was required to report. He said that for court matters, his lawyer could provide a letter but matters to do with the CID are not recorded.
It was put to him that his account was not consistent with a letter from a lawyer he had provided that says he was granted bail by the court but failed to subsequently appear so a warrant for his arrest was issued. It states that he continued to be absent on several days thereafter, and the warrant was re-issued every day until, finally, an open warrant was issued.
The applicant was able to obtain a passport and leave Sri Lanka by air to India. The decision of the delegate provided by the applicant records that Sri Lankan authorities have confirmed that a passport was issued to the applicant [in] 2009.
The applicant was detained and interrogated in the internally displaced persons (IDP) camp. The Tribunal considers that if there was a warrant for his arrest, or if he was known to the CID, this would have resulted in his arrest at the IDP camp. The Tribunal is not satisfied a passport would be issued to the applicant if there was a warrant for his arrest, even if the agent paid bribes. It is not satisfied he would be allowed to depart Sri Lanka through an airport if there was a warrant for his arrest, even if he was accompanied by his agent given the stop and watch lists that operate in Sri Lanka.[5]
[5] DFAT [5.16]
The Tribunal finds that even if the applicant tried to leave Sri Lanka illegally, he has paid the fine. It does not accept he was required to report to the CID monthly or that there is a warrant for his arrest.
The Tribunal does not accept that the purported letter from the lawyer is genuine, or that there is a current warrant out for the arrest of the applicant. The Tribunal finds the claim to have a warrant issued against him is a fabrication to bolster his claims for protection.
Current economic crisis
The applicant was asked how the current economic crisis affected him or his family and he said there was no impact.
Departure from Sri Lanka
The applicant stated he fled Sri Lanka to save his life, but the authorities may think he escaped the country to avoid conviction of any serious crime.
The applicant was issued a passport and permitted to depart from Sri Lanka in approximately 2010. The civil war ended in 2009. The applicant is of Tamil ethnicity and was of an age that may result in him being suspected of being involved with the LTTE when he was in Sri Lanka. He has now been in Australia for approximately 12 years.
Profile of the applicant
The applicant is a [age]-year-old Tamil man who left Sri Lanka legally on a passport in 2010. He may previously have been charged and fined for illegal departure, but otherwise has no outstanding warrants or court matters.
The applicant was forcibly recruited by the LTTE and served as a low-level combatant. He escaped from the LTTE and was taken to an IDP camp where he was interrogated by the CID. He escaped from the IDP camp, obtained a genuine passport and travelled to India before arriving in Australia by boat. If returned to Sri Lanka, he will return on a temporary travel document (TTD). If returned, he may reasonably be suspected of involvement in the LTTE.
Assessment of profile
It was submitted on behalf of the applicant that the applicant was likely to be detained if returned to Sri Lanka, and that this is supported by the DFAT report. It was not submitted that the applicant was other than a low-profile former LTTE member.
The DFAT report states:
Low-profile former LTTE members
3.49 ‘Low-profile’ former LTTE members include former combatants, those employed in administrative or other roles, and those who may have provided a high level of non-military support to the LTTE during the war. DFAT assesses that, although the great majority of low-profile former LTTE members have been released following their rehabilitation, any low-profile former LTTE members who came to the attention of the Sri Lankan authorities now, particularly if suspected of having a combat function during the war, would likely be detained and may be sent for rehabilitation. Following their release from rehabilitation, a low profile former LTTE member might be monitored but would generally not be prosecuted.
The Tribunal accepts that if it came to the attention of the Sri Lankan authorities that the applicant was a low-profile former LTTE combatant, he would likely be detained and may be sent for rehabilitation.
The UK Home Office reports that in the sources consulted for the August 2022 report, no information could be found to suggest forced rehabilitation still occurs.[6]
[6] UK Home Office Country Policy and Information Note Sri Lanka: Tamil Separatism August 2022 at [4.6.4]
DFAT assesses that Sri Lankans detained by the authorities face a moderate risk of torture.[7]
[7] DFAT at [4.18]
The United Kingdom Upper Tribunal, in its decision of KK and RS (sur place activities, risk) Sri Lanka (KK and RS), states[8]:
The expert evidence all points to the conclusion that detention will give rise to a real risk of ill-treatment. This is in line with numerous sources of country information, including Amnesty International, the DFAT, the 2019 United States State Department report, and the December 2016 report of the UN Special Rapporteur. The use of torture and excessive force is variously described as “endemic” and “common”, and that “a “culture of torture” persists” in the country. Descriptions of the types of treatment meted out to detainees are all-too familiar and follow a similar pattern to that considered by Tribunals in previous Sri Lankan country guidance cases.
In light of the position set out in GJ, together with the evidence before us, it is abundantly clear that there is a reasonable likelihood that those detained by the Sri Lankan authorities will be subjected to persecution within the meaning of the Refugee Convention and ill-treatment contrary to Article 3 ECHR.
It is the prior question concerning the circumstances in which an individual is at real risk of being taken into detention that represents the core issue for us to address.
[8] KK and RS (Sur place activities, risk) Sri Lanka (CG) [2021] UKUT 130 (IAC) (27 May 2021) at [320] to [322]
The applicant does not currently hold a passport and would be required to either apply for a new passport or re-enter Sri Lanka on a TTD.
DFAT reports, in relation to entry and exit procedures, that it “is not aware of returnees in 2021 being detained for matters other than illegal departure (such as, for former membership of the LTTE). However due to COVID-19, returnees have been returned to Sri Lanka in smaller numbers overall than in previous years”.[9] DFAT also reports:
For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.
[9] At [5.18]
The UK Home Office reports that people returning on an enforced removal are taken directly to the Chief Immigration Officer and questioned.[10] If of interest, they are interviewed further and then passed to the CID.[11] The UK Home Office found that most people are interviewed for illegal departure, which does not apply in this case.
[10] UK Home Office 20 January 2020 Report of a Home Office fact-finding mission to Sri Lanka at [8.1.3]
[11] Ibid at [8.1.10]
In KK and RS it is stated[12]:
[12][2021] UKUT 130 at [350 – [358]
(15) Those being returned on a TTD [temporary travel document] will be questioned on arrival at BIA. Additional questioning over and above the confirmation of identity is only reasonably likely to occur where the individual is already on either the stop list or the watch list.
(16) Those in possession of a valid passport will only be questioned on arrival if they appear on either the stop list or the watch list.
(17) Returnees who have no entry on the general database, or whose entry is not such as to have placed them on either the stop list or the watch list, will in general be able to pass through the airport unhindered and return to the home area without being subject to any further action by the authorities (subject to an application of the HJ (Iran) principle).
(18) Only those against whom there is an extant arrest warrant and/or a court order will appear on the stop list. Returnees falling within this category will be detained at the airport.
(19) Returnees who appear on the watch list will fall into one of two sub categories:
(i) those who, because of their existing profile, are deemed to be of sufficiently strong adverse interest to warrant detention once the individual has travelled back to their home area or some other place of resettlement; and
(ii) those who are of interest, not at a level sufficient to justify detention at that point in time, but will be monitored by the authorities in their home area or wherever else they may be able to resettle.
(20) In respect of those falling within sub-category (i), the question of whether an individual has, or is perceived to have, undertaken a “significant role” in Tamil separatism remains the appropriate touchstone. In making this evaluative judgment, GoSL will seek to identify those whom it perceives as constituting a threat to the integrity of the Sri Lankan state by reason of their committed activism in furtherance of the establishment of Tamil Eelam’ (paragraph 536 (15-20).
Given his profile, the applicant is unlikely to be detained on entry to Sri Lanka. If his link to the LTTE is discovered, according to DFAT it is likely that he will be detained and possibly be sent to rehabilitation.
The Tribunal is required to consider what will occur to the applicant now or in the reasonably foreseeable future. This is challenging in light of the current economic upheaval in Sri Lanka.[13] The current economic situation in Sri Lankan has resulted in a crackdown on dissent, targeting multiple groups.[14] Prior to the current political dissent, the Government used it powers against Muslim communities in the wake of the bombings in April 2019 terrorist attacks against Christian churches and hotels.[15]
[13] OHCHR | A/HRC/51/5: Situation of human rights in Sri Lanka - Comprehensive report of the United Nations High Commissioner for Human Rights
[14] DFAT [2.39]
There is no information located by the Tribunal that Tamils or former LTTE members are targeted as part of the crackdown on dissent as a result of the economic crisis, and it would be reasonable to think that the Government is focussed on the economic crisis and the current political dissent. There is no information to suggest the applicant will join these protests.
Nevertheless, the DFAT report states that low-profile LTTE combatants coming to the attention of the authorities are likely to be detained and may be sent for rehabilitation. The Tribunal accepts suspected LTTE members or those imputed with anti-government or separatist views face a real chance of serious harm if detained.
The question then becomes whether there is a real chance that the applicant’s history as a low-level combatant will come to the attention of the authorities leading to his detention.
The applicant is Tamil and has been in Australia since 2010, shortly after the end of the civil war in Sri Lanka in May 2009.[16] In the relevant period he was of an age, ethnicity and area of origin that would cause him to be suspected of involvement in the LTTE. He was interrogated regarding his involvement in the LTTE when the family was in the IDP camp. In these circumstances, he is likely to be suspected of a previous role with the LTTE.
[16] DFAT [2.2]
As the Tribunal has found he did in fact have a role as a low-level combatant, he would likely be detained and may be sent for rehabilitation. On the existing country information, the Tribunal is satisfied that if he is detained about his involvement in the LTTE, there is a real chance that he will be subjected to physical ill-treatment.
Application of the Act
To meet s 36(2)(a), the applicant must be a non-citizen in Australia, who is owed protection obligations because he is a refugee. Under s 5H of the Act, a person is a refugee if he or she is outside the country of his or her nationality and owing to a well-founded fear of persecution is unable or unwilling to return to it.
The applicant is outside of his country of origin and is unwilling to return. This matter turns on whether he has a well-founded fear of persecution.
Well-founded fear of persecution is defined in s 5J of the Act. This requires three elements to be met.
The first is that the person fears being persecuted for reasons (among others) of his political opinion. The Sri Lankan government has been ready to impute anti-government or separatist view to ex-LTTE combatants. The applicant was forcibly recruited; however, it does not appear on the information before the Tribunal that the Sri Lankan government distinguishes between those forcibly recruited and others in detaining ex-LTTE cadres.
The person must have a fear of being persecuted. As it applies to the applicant and his imputed political opinion, this is defined in s 5J(4) as:
(a)The imputed political opinion must be the essential and significant reason for the persecution; and
(b)The persecution must involve serious harm to the person; and
(c)The persecution must involve systemic and discriminatory conduct.
The applicant held a role with the LTTE and could be said to have committed offences for which he may be detained. However, given the country information and the Sri Lankan government’s approach to political dissent both historically and recently, the Tribunal is satisfied his imputed political opinion would be the essential and significant reason for the persecution. The Tribunal is satisfied that the applicant fears harm due to imputed anti-government or separatist views, and fears harm due to an imputed political opinion, and s 5J(1)(a) is met.
The persecution must involve serious harm, which is defined in s 5J(5) as including a threat to the person’s life or liberty, significant physical harassment of the person or significant physical ill-treatment of the person. In this case, the applicant may be detained and suffer physical ill-treatment. This is serious harm as defined, and s 5J(4)(b) is met.
The persecution must involve systemic and discriminatory conduct. The conduct is targeted towards those who have or are imputed to have anti-government views and is systemic and discriminatory. Section 5J(4)(c) is met.
As the applicant therefore fears being persecuted by reason of an actual or imputed political opinion, s 5J(1)(a) is met.
There must also be a real chance that if the applicant is returned to Sri Lanka he will be persecuted because of his actual or imputed political opinion.
The second requirement in s 5J(1) is that to have a well-founded fear of persecution there must be a real chance that if the applicant is returned, he would be persecuted because of his actual or imputed political opinion.
The s 5J(1)(b) concept of ‘real chance’, as relevant to the assessment of well-founded fear under Art 1A(2) of the Convention, was explained by the High Court in Chan v MIEA as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance.[17]
[17] Chan v MIEA (1989) 169 CLR 379 at 389, 406–7, 396–8, 428–9
The applicant is likely to be suspected of being a past member of the LTTE and on the existing country information is therefore likely to be detained and possibly sent to rehabilitation. The Tribunal considers there is a real chance he will be persecuted, and s 5J(1)(a) is met.
There is no suggestion that this real chance of persecution does not relate to all areas of Sri Lanka, and s 5J(1)(c) is met.
The Tribunal finds that effective protection measures and behaviour modification in s 5J(2) and (3) do not apply.
As the definition of well-founded fear of persecution in s 5J(1) is met, the applicant meets the definition of a refugee in s 5H of the Act, and meets s 36(2)(a) of the Act. The appropriate course is to remit the matter for reconsideration in accordance with this finding.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958.
Kate Millar
Senior 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.

[2023] AATA 1031

24 January 2023

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