1906486 (Refugee)

[2023] AATA 4818

1906486 (Refugee) [2023] AATA 4818 (18 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Mr Navid Koushke Baghi (MARN: 1681603)

CASE NUMBER:  1906486

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Roslyn Smidt

DATE:18 December 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 18 December 2023 at 12:30 PM

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion – family members of Liberation Tigers of Tamil Eelam – torture – sexual assault – disappearances – political activities in Australia – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 18 September 2013 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who is a citizen of Sri Lanka, applied for the visa on 21 November 2012. The Tribunal affirmed the delegate’s decision. That decision was set aside by the Federal Court [in] March 2019 and remitted to be heard and determined according to law. The matter is now before the Tribunal pursuant to an order of the Court.

3. The applicant appeared before the Tribunal on 24 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

4. The applicant was represented in relation to the review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).

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

   BACKGROUND

10. The applicant is a single man of Tamil ethnicity from northern Sri Lanka. He left Sri Lanka legally using his own passport in August 2010 and travelled to [Country 1]. After about two months he travelled to [Country 2] where he remained until June 2012 before travelling to Indonesia. He arrived in Australia by boat [in] July 2012. He was held in migration detention until November 2012.

    CLAIMS AND EVIDENCE

11.   The applicant provided a broadly consistent and convincing account of his claims and I accept the following as true.

1. In essence the applicant claims fear harm from the Sri Lanka authorities and others in Sri Lanka for reasons of his Tamil ethnicity and residence in areas under LTTE control prior to 2009, imputed pro-LTTE pro-separatist views, his association with his brother who was an LTTE member prior to 2009 and his involvement in activities in Australia which are likely to be viewed as pro-LTTE and pro-separatist.

   Pre departure events

13.   Prior to 2009 the applicant lived in areas controlled by the LTTE. He was originally from [District 1], but his family moved several times to avoid violence.   In 2006 or 2007 the LTTE came looking for the applicant. However, he was the oldest member of the family and had to look after everyone, so his brother joined the group. His evidence regarding his brother’s membership of the group was confused. It appears that he was not involved for very long.

1. The applicant and his family spent several months in 2008 and 2009 fleeing the violence in extremely difficult and dangerous circumstances.  He became separated from the rest of his family. In about April 2009 he entered an army camp and was taken to a displaced persons camp.  He told the officials that he had been married and that his wife and child had been killed in the conflict. He did this because married men were less likely to face problems. He was questioned, but not transferred to a rehabilitation camp.  He was released from the camp in about October 2009 and sent to Jaffna where one of his cousins lived. He was part of a group of [men] who were sent to Jaffna at that time. He had met the other men while fleeing in the jungle and did not know whether they were involved with the LTTE.

2. The applicant was required to sign some papers and report to the army or the CID.  He was usually held 3 or 4 hours, but on two occasions he held for longer periods during which he was tortured by being hung from a rope and burned with cigarettes. He was sexually assaulted on one occasion.  In late 2009 or early 2010 he worked as [an Occupation 1] in Kilinochchi. He returned to Jaffna when he had leave. When he returned to Jaffna for the last time in 2010 his cousins wife told him that three of the men with whom he had travelled from the IDP camp to Jaffna had been detained after reporting to the IDP camp and had not been seen since. He was due to report to the CID but fearing what might happen to him he returned to Killinochi where he stayed with friends while he arranged to leave the country. He does not know why the men were detained or what happened to them after he left the Sri Lanka.

3. The applicant obtained a passport in early 2010 prior to these developments because he wanted to leave Sri Lanka to avoid problems in Sri Lanka.  After learning of what happened to the other men, he feared he would have problems leaving, so he had paid an agent who did everything for him. However, he left legally on a legal passport issued in his own name. He was questioned at some length by officials and the airport, although this appears to have been an attempt to extort a bribe rather that significant concerns about his background.

   Post departure developments

4. The applicant’s parents returned to [District 1] after he had left the country.  He had not returned been there for several years. The local CID questioned his parents about his whereabout and activities. They appeared to be suspicious because there were unable to provide evidence of his whereabouts and because he had lied about being married when he was in the IDP camp. They continued to question his parents until about 2013. During Covid he considered returning to Sri Lanka because his situation in Australia have become very difficult. He was told that his parents should arrange to include him on their registration. However, when they attempted to do so the CID questioned them and obtained all of his and his brother’s records from the village office. He was concerned and decided not to return.

5. Since arriving in Australia, the applicant has participated in a significant number of cultural and political events including annual Martyrs Day events and several protests against the Sri Lankan government’s involvement in human rights abuses and war crimes. He appeared in photographs and videos of these events which had been posted online at the time. He has provided photographs which show him attending some of these events and a letter from the Coordinator of [Community Organisation 1] which confirmed he had been actively worked to create awareness or human rights violations and war crimes committed by the Sri Lanka government while in Australia.

6. The applicant said that while he had not joined the LTTE while he lived in Sri Lanka, he opposes the government of Sri Lanka because of its treatment of Tamils and other abuses and feels a deep commitment to commemorating the people who had died for the Tamil cause and wants to support the Tamil cause.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Sri Lankan authorities remain concerned about pro-separatist sentiments in the Tamil community. According to DFAT there continues to be a significant military presence in the north of the county and while much reduced compared to earlier years the authorities continue to monitor the activities of Tamils in the north of the country and Tamils who participate in events such as Heroes Day may be harassed or detained for brief periods.

8. According to DFAT and others[1] the Sri Lankan authorities collect and maintain intelligence on former LTTE members, supporters and separatists and may monitor members of the Tamil diaspora returning to Sri Lanka depending on their risk profile. They are mostly interested in people who have played a significant role in politically sensitive issues and who have been politically active in supporting Tamil separatism, played leadership roles in diaspora groups and actively advocating for Tamil statehood. Activities which might be of concern include attendance at public demonstrations, membership of or particular roles within relevant organisations, meaningful fundraising on behalf of relevant organisations, attendance at commemorative events such as Heroes’ Day, social media activity whether manifested by the posting of original comments or promoting the views of others, political lobbying and the signing of petitions perceived as being critical of the government. The extent and duration of these activities is also a relevant consideration.

   [1] DFAT Country Report on Sri Lanka 23 December 2021 and Country policy and information note: Tamil separatism, Sri Lanka, April 2023 (accessible version) - GOV.UK (>

   In 2021 DFAT assesses that, in addition to the issue of separatism and perceived support for certain Tamil organisations, the Rajapaksa Government in power at the time had grown  increasingly intolerant of criticism or political dissent  especially with reference to alleged historical abuses. Rajapaksa fled the country and resigned in July 2022 in following several months of widespread protests against the government.  He was replaced by Ranil Wickremesinghe, who belongs to the same party and has previously been prime minister several times. Wickremesinghe launched a crackdown on dissent, using the security forces to attack and disperse peaceful protesters, carrying out dozens of arrests including under the draconian Prevention of Terrorism Act. While the change of leadership seems to have brought some improvements since that time, the US Department of State Country Report for Human Rights Practices in Sri Lanka for 2022 observed that significant human rights issues noted that credible reports of  torture and cruel, inhuman, or degrading treatment or punishment by the government, harsh and life-threatening prison conditions; arbitrary arrest and detention. Human Rights Watch World Report for 2022 also reports continuing human rights abuses of those who oppose or who are believed to oppose the current government.[2]

   [2] Country policy and information note: Tamil separatism, Sri Lanka, April 2023 (accessible version) - GOV.UK ( Sri Lanka - United States Department of State; World Report 2023: Sri Lanka | Human Rights Watch (hrw.org);

9. In my view it is unlikely that the applicant would face serious or significant harm if he returns to Sri Lanka. While his involvement in political activities in Australia would probably have brought him to the attention of the authorities in Sri Lanka, he does not appear to have played the kind of significant role likely to cause him to be of immediate concern to the authorities at a national level. However, his involvement in these activities, his commitment to commemorating those who died for the Tamil cause and in particular the local CID appears to have a continuing interest in him despite his long absence suggests that he may face problems on return to Sri Lanka, if not immediately then within the reasonably foreseeable future. This could include arrest or detention and if he is detained there is a risk that he would face ill-treatment and torture. While such treatment of people with imputed LTTE links is not as widespread as it appears to have been in the period immediately after the civil war it continues to be a problem, particularly during criminal investigations and a means of extracting confessions. In these circumstances, the possibility that he may face serious harm on return to Sri Lanka cannot be dismissed as remote or insubstantial. I am therefore satisfied that there is a real chance that he will face serious harm now or at some time in the reasonably foreseeable future if he returns to Sri Lanka.

10. After considering all of the relevant evidence, I find that the applicant has a well-founded fear of persecution on return to Sri Lanka for reasons of his political opinion or opinions likely to be imputed to him.

    CONCLUSION

11. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s 36(2)(a).

    DECISION

12. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Roslyn Smidt
    Member