1907619 (Refugee)

[2024] AATA 3365

1907619 (Refugee) [2024] AATA 3365 (14 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1907619

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Samira Kamandi

DATE:14 August 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 August 2024 at 2:53pm

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – race – Tamil – particular social group – failed asylum seeker from a western country – taxi driver – imputed political opinion – suspected links to the Liberation Tigers of Tamil Eelam – religion – conversion to Christianity – interrogation at checkpoints – threats to remaining family – family members’ return to Sri Lanka – access to healthcare – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 46, 65, 499
Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB (2013) 210 FCR 505

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

1. The applicant was born in [year] in Colombo in Sri Lanka. While in Sri Lanka he resided in Colombo and Kandy. He was married in Sri Lanka and has 3 sons.

2. In January 2009, the applicant travelled with his wife and sons to India. They were transferred to and resided at [a named] refugee camp in Tamil Nadu.

3. [In] April 2010, the applicant travelled to Chennai in India and boarded a boat to commence his journey to Australia. His wife and sons remained at the refugee camp with his mother-in-law. He arrived in Christmas Island as an unauthorised maritime arrival [in] May 2010.

4. As set out below, the applicant applied to be recognised as a refugee soon after his arrival and he was assessed as not meeting the criteria to be a refugee on 3 occasions.

5. On 23 May 2018 the bar under s 46A(1) of the Act was lifted and the applicant was able to apply for a Safe Haven Enterprise Visa (SHEV), which he did on 20 September 2018.

6. On 8 March 2019, a decision was made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

7. On 29 March 2019, the applicant applied for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal). This is a decision of that review application by the Tribunal.

   CLAIMS AND EVIDENCE

   Evidence before the delegate

   Evidence prior to SHEV application

8. The applicant provided the Tribunal with a copy of the delegate’s decision made on 8 March 2019. The decision indicates that shortly after the applicant’s arrival in Australia, his claims for protection were assessed. The decision includes evidence given by the applicant for the purposes of a Refugee Status Assessment (RSA) in 2010, and evidence from an independent merits review (IMR) conducted in 2011 and another IMR in 2012. 

9. The decision notes that for the purposes of the RSA, the applicant claimed that his identification was constantly checked by the authorities while he lived in Kandy and Colombo. The Sri Lankan Army (SLA) would round up the applicant and other Tamils twice a month. They were interviewed and had their personal details taken. In 2017 the Liberation Tigers of Tamil Eelam (LTTE) attacked him and other Tamils in a bombing. The applicant claimed that he feared returning to Sri Lanka because of his Tamil ethnicity and because he had previously been harassed. It is noted that on 27 August 2010 the assessor, in taking into account the applicant’s risk profile and country information about the situation in Sri Lanka, found that the applicant did not face a real chance of harm for the reasons claimed.

10. It is noted that before the first IMR, the applicant reiterated his protection claims and added that as a taxi driver he was also harassed by the authorities when passing through checkpoints. He further claimed that his mother had been questioned by the authorities about his whereabouts since he had been in Australia. While the IMR accepted that the applicant was questioned at checkpoints during his work, the reviewer found that he had no profile with the authorities and that the applicant did not face a real chance of harm because of his employment, his Tamil ethnicity, or as a failed asylum seeker if returned to Sri Lanka. On 2 March 2011, the IMR determined that the applicant did not meet the criteria for a protection visa under s 36(2) of the Act.

11. The first IMR decision was remitted following a judicial review filed by the applicant. The delegate’s decision notes that the second IMR accepted the applicant’s claims. In noting that the applicant had no LTTE association or connection and did not fit the profile of a young Tamil male from the north, the IMR found that the applicant’s profile as a failed asylum seeker from Australia was insufficient for the authorities to impute him with a pro-LTTE political opinion if he returned to Sri Lanka. The assessor found that the applicant did not face a real chance of harm for any of the claimed reasons. 

    Evidence for the purposes of SHEV application    

12. The applicant’s claims for protection, as provided in his statement for the purposes of his SHEV application and noted in the delegate’s decision, can be summarised as follows:

    ·The applicant was born on [date] in Colombo, Sri Lanka. He is of Tamil ethnicity and of Hindu religion.

    ·The applicant and his family travelled to India in January 2009. After the applicant’s departure for Australia in April 2010, his wife and [children] remained in the refugee camp until about 6 months prior to the delegate’s decision (around September 2018), when his wife and children returned to Sri Lanka because his mother-in-law had passed away.  

    ·The applicant’s parents remain in Colombo.

    ·While living in Colombo from 2003 to 2009, the applicant worked as an auto (three-wheeler) driver. During this period when bombings or shooting incidents occurred near his place, the applicant was stopped at checkpoints by the SLA and subjected to harsh interrogation and harassment.

    ·The SLA knew that the applicant was Tamil and working as a taxi driver. They were suspicious that the applicant was assisting and transporting LTTE members and knew information about the LTTE members’ whereabouts and plans.

    ·The applicant was also subjected to routine checks by the authorities. They would come to his house twice a week and interrogate him. Twice a month, he along with other Tamils in the area, were taken to the nearby grounds or field. They were interrogated by the SLA to gain information about the LTTE fighters. They had firearms pointed at them and were threatened with torture and death if they were found out to have assisted the LTTE fighters.

    ·The applicant witnessed fighting between the LTTE and the SLA, including shootings, bombings, and missile attacks in the surrounding areas. He was subjected to harsh interrogation, harassment, and accusations by the SLA.

    ·The applicant was mentally tortured and threatened to be killed by the authorities.  

    ·Due to the conditions at the time, the applicant and his wife decided to leave Sri Lanka and travelled to India.

    ·On arrival in India, they were detained for 24 hours and questioned by the Indian authorities. They were released and sent to the refugee camp in India.

    ·After his departure from Sri Lanka, the SLA went to his house looking for him.

    ·The applicant heard that the Indian government were deporting refugees back to Sri Lanka and decided to escape the country to seek protection. [In] April 2010, the applicant left India from Chennai on a boat and made the journey to Australia.

    ·The applicant fears that on return to Sri Lanka, he will be subjected to arrest and interrogation as a failed asylum seeker returning from a western country. He will be linked with the LTTE and subjected to harsh interrogation, detention, and torture.

    ·The applicant will be targeted by the authorities as a Tamil auto driver. He will be suspected of having assisted the LTTE because of his lack of assistance to the SLA with their LTTE investigations.  

    ·His parents informed him that the authorities were continuing to arrest individuals who they believe had links with the LTTE. In 2016, the Sri Lankan police shot dead 2 Tamil university students and they continue to treat Tamils with suspicion.

13. The applicant’s former migration agent, who assisted him with his SHEV application, provided a submission at the interview before the delegate which primarily included extracts from country information reports about the situation of Tamils and returned asylum seekers in Sri Lanka which is no longer current.

    Delegate’s decision

14. The delegate’s decision indicates that the applicant was interviewed on 7 March 2019.

15. The delegate accepted that the applicant is an ethnic Tamil who originates from Colombo. The delegate found the applicant to be generally credible and noted that he has provided consistent information throughout his protection claim assessments which is supported by country information reports about the situation of Tamils at the time the applicant was residing in Sri Lanka.

16. While the delegate accepted that the applicant had previously been questioned and harassed by the authorities because of his ethnicity, the delegate found that the harassment and interrogation he faced was arbitrary in nature and did not accept that he was suspected of any LTTE involvement. The delegate also accepted that the applicant, as a taxi driver, was questioned at checkpoints, but found that given the situation at the time it was for a legitimate state objective to combat the LTTE and a measure which applied to everyone.

17. In noting that the applicant departed Sri Lanka in 2009 legally and that he did not experience any difficulties leaving Colombo airport using his own passport, the delegate found that he was not of any adverse interest to the authorities.

18. In accepting that following his departure for India the applicant’s mother may have been questioned, the delegate noted that the applicant left the country leaving his house unoccupied and considered that given the applicant’s lack of any profile with the authorities, the questioning about his whereabouts may have related to the unattended property and is not indicative of an adverse profile.

19. Considering country information about the situation for Tamils in Sri Lanka and treatment of returned asylum seekers who left the country legally, the delegate was not satisfied that the applicant faced a real chance of serious harm or was at a real risk of significant harm for reasons of his ethnicity, as a Tamil taxi driver, or as a Tamil returned asylum seeker. 

20. The applicant’s protection visa was refused on 8 March 2019.     

    Review application

21. On 29 March 2019, the applicant applied for a review of the delegate’s decision with the Tribunal. The applicant did not include any additional material or supporting evidence with his review application.

22. On 11 June 2024, the applicant was invited to a hearing before the Tribunal scheduled on 30 July 2024. The applicant was requested to fill out a prehearing form, confirming his attendance and to provide the Tribunal with any further information he wished to be considered, including any witness statements or other supporting evidence. The applicant did not provide the Tribunal with the pre-hearing form in the required timeframe.

23. The Tribunal emailed the applicant and telephoned the applicant to inquire if he wished to attend the hearing and provide further information. The applicant confirmed that he would be attending the hearing and on 5 July 2024 provided the Tribunal with the following information:

    ·Various photographs of the applicant which appear to have been taken while he was in hospital, and other photographs of his hands, feet and mouth.

    ·A patient health summary record dated 15 June 2024 provided by [Doctor A] at [a named] Medical Centre. The record notes the applicant’s ‘active past history’, current medication and immunisation history.

    ·A report from [Hospital 1] dated 24 January 2024, which notes the applicant’s medical issues and his treatment plan and indicates that the applicant was reviewed for ongoing surveillance of his [medical condition 1]. The report notes that while the applicant suffers from some surgical-type pain since his operation, the pain is not bothering him, and he is not taking any analgesia for this. It further notes that the applicant is drinking and eating normally and denies any significant concerns regarding his [certain functions]. Treatment plan is noted to include [specified tests] in 6 months, and a review at the end of June 2024.

    ·A copy of a [report] from [Hospital 1] dated 7 October 2022. 

    ·A copy of a podiatry report from [Health Service 1] dated 30 January 2020.

    ·A copy of a [test] report from [Health Service 2] requested on 24 January 2024.

    ·A copy of a Mental Health Care Plan (MHCP) dated 1 March 2023 which indicates that the applicant has developed [medical condition 1], had surgery, and is finding it difficult to handle his medical conditions by himself, is lonely, and cannot go to visit family because he cannot come back, is not sleeping well and finding it difficult to lose weight. The diagnosis is noted as ‘depression/anxiety/stress’.

    ·A copy of an MHCP dated 19 June 2024. In addition to what is referred to in the earlier MHCP, this also refers to the applicant not seeing his children for 14 years and not having the chance to participate in their weddings and special occasions.

    ·A copy of a referral to a psychologist dated 19 June 2024. The referral indicates that the applicant suffers from multiple medical conditions, suffered a work injury and has been diagnosed with [medical condition 1]. The referral notes that while the applicant had surgery, he is unable to take [specified treatment] due to adverse effects, and that he is suffering from diabetes and hypertension. It is further noted that the applicant has not seen his family for 14 years, feels sad, depressed, and anxious about his future and requests 6 sessions of psychology under an MHCP.

    ·A copy of a letter from [Church 1] dated 18 June 2024 addressed to the Tribunal.

24. The applicant did not provide any submissions about the relevance of the above documents to his review application before the Tribunal.

25. The hearing was held in person at the Tribunal’s Perth Registry. The applicant was not represented. The hearing was held with the assistance of an interpreter in the Tamil and English languages. The applicant and the interpreter confirmed that they understood each other. The applicant responded to my questions and did not raise any issues with the interpretation services provided at the hearing, nor indicate that he had difficulties understanding the interpreter. I am satisfied that the applicant had a real and meaningful opportunity to engage with the hearing process and was able to present his claims. Where relevant, the applicant’s evidence given at the hearing is discussed below.

26. At the commencement of the hearing, the applicant provided copies of the documents already submitted to the Tribunal and an additional brief document, said to have been provided by his mother from Sri Lanka, which I discuss in my assessment of the applicant’s claims below.  

27. Given the medical reports provided to the Tribunal, at the commencement of the hearing I confirmed with the applicant that he was feeling well enough to continue with the hearing and advised him that if at any time he needed a break or was feeling unwell, to let me know immediately. The applicant confirmed that he understood and indicated that he was better and able to participate at the hearing.   

28. I also explained the purpose of the hearing and the criteria for the grant of a protection visa to the applicant. I explained that I was not bound by the findings of the delegate and that I would be assessing the evidence and information before me, including the applicant’s evidence given at the hearing, in determining his review application. I indicated that all aspects of the applicant’s claims were in issue before me and that he should not assume that anything that was accepted by the delegate will also be accepted by me. I further expressed that I would be discussing any concerns or issues that I may have with the applicant’s claims or evidence with him and that the purpose of this was to allow him to understand the issues and provide his responses and any further information that he wished for me to take into consideration. I indicated that I have consulted country information, including the most recent Department of Foreign Affairs and Trade (DFAT) report published in 2024[1] about the situation in Sri Lanka and that I would be discussing the relevant information with him at the hearing. The applicant expressed his understanding of these matters and indicated that he had no questions in this regard.

    [1] DFAT, ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024.

    CRITERIA FOR A PROTECTION VISA

29. 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.

30. 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.

31. 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).

32. 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.

33. 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

1. 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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. The issue in this case is whether there is a real chance that the applicant will suffer serious harm if returned to Sri Lanka for reasons of his race, religion, nationality, membership of a particular social group or political opinion or, alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

3. For the following reasons, I have decided to affirm the decision under review.

   Country of reference

4. The applicant has consistently claimed to be a citizen of Sri Lanka. He has provided a copy and English translation of his Sri Lankan birth certificate, his national identity card, his children’s Sri Lankan birth certificates and his Sri Lankan marriage certificate. I accept that the applicant is a national of Sri Lanka, and that Sri Lanka is the receiving country for the purposes of this assessment.

   Analysis, findings and reasons

   Background information

5. I accept that the applicant was born in [year] in Colombo in Sri Lanka and that he is of Tamil ethnicity. The applicant has consistently claimed to be a citizen of Sri Lanka. I accept that to be the case and that Sri Lanka is the receiving country for the purposes of this review.

6. I accept that the applicant resided with his parents in Colombo and went to school until [grade], after which he helped his father with his [business].

7. I accept the applicant’s evidence that he and his wife married in 1993, that they have 3 sons, born in [specified years], and that their marriage was formerly registered in [2008]. The applicant has provided copies of his sons’ birth certificates and his official marriage certificate which confirms this information.

8. At the hearing, the applicant confirmed that after his marriage, he moved from Colombo to Kandy, and that he and his wife resided with his mother-in-law. The applicant worked as [an occupation] while in Kandy and then moved to Colombo with his family and purchased a three-wheeler and started working as a taxi driver. At the hearing, the applicant stated that he moved to Colombo in 2003 because there were better employment opportunities in Colombo and that he built a house across from his parents’ home in Colombo, where he and his family resided until their departure for India in January 2009. I accept the applicant’s evidence in this regard.

9. While the applicant’s representative’s submission provided as part of his SHEV application makes references to the applicant having departed Sri Lanka illegally, the delegate’s decision indicates that at the interview, the applicant and his representative confirmed that the applicant’s departure from Sri Lanka was legal and not illegal as written in the application. The decision also notes that the applicant stated that he had the assistance of an agent who helped arrange his passport and clearance through the airport and that he did not indicate that any authorities were bribed at the time of his departure or that he faced any issues departing the country.

10. At the hearing, the applicant confirmed that he engaged an agent who organised their passports and visas to India. While he made references to having paid the agent who then paid others, the applicant’s evidence in this regard was vague and unconvincing and he did not refer to bribing airport officials or any other person at the airport. While I accept that the applicant engaged an agent and paid the agent to organise his and his family’s passports and visas to India, given my assessment of the applicant’s profile at the time of his departure from Sri Lanka in January 2009 discussed below, and the applicant’s former representative’s evidence before the delegate that the applicant departed the country legally and without any issues, I find that the applicant and his family departed Sri Lanka using their Sri Lankan passports and using their legally obtained visas for India. The applicant has consistently claimed, and I accept, that he faced no issues or problems at the time of his departure from Colombo airport.

11. In his SHEV application, the applicant claims that on arrival in India, they were detained for 24 hours and questioned by the Indian authorities and then were sent to the refugee camp. At the hearing, the applicant stated that his wife’s family were already in India at the refugee camp. The applicant provided the Indian authorities with his wife’s family’s details and address, and they were sent to the refugee camp. The applicant provided a copy of his refugee identity card issued in India.

12. At the hearing, the applicant confirmed that while residing at the refugee camp in India, he worked as [an occupation] and relied on Indian government assistance. His eldest son, who had already started school in Colombo, continued his studies and completed high school in India. The applicant’s younger sons also attended school in India. I accept the applicant’s evidence in this regard.

13. As claimed before the delegate, the applicant confirmed that after his mother-in-law passed away, his wife and 3 sons returned to Sri Lanka in around September 2018. Regarding his sons, the applicant said that his eldest son, who is [age] years of age, went to [Country 1] to study English for about 6 months to a year and that the applicant paid for his travel and study. After some discussion about the timing of this, the applicant confirmed that this occurred while the applicant was in Australia and prior to the applicant’s wife and sons permanently returning to Sri Lanka in 2018. He stated that his son travelled from India to Sri Lanka to visit the applicant’s mother in Colombo, then travelled to [Country 1] from Colombo and returned to Colombo from [Country 1], after which he went back to India where his mother and brothers were residing. I accept the applicant’s evidence in this regard.

14. The applicant stated that after his family returned to Colombo, they rented a few places in Colombo and then went to Kandy where they bought a small block of land and built a small house where his wife and 3 sons live. He confirmed that he assisted them financially to purchase the land and build the house. Apart from a year of not working due to a work-related injury, the applicant’s evidence is that he has been working in [businesses].

15. Regarding his sons’ circumstances in Sri Lanka, the applicant stated that his eldest son is now married and works as a three-wheeler driver in Kandy. His second son travelled to [Country 2] for work but was unable to secure employment and returned to Kandy. His youngest son is [deleted]. He confirmed that his parents remain at their home in Colombo and that he calls his wife, and sons on a daily basis, and speaks to his parents often. His [siblings] reside overseas but are in Colombo now visiting their parents. He has no family residing in Australia. I accept the applicant’s evidence in this regard.      

    Religion

16. While the applicant’s SHEV application notes his religion as Islam, in his statutory declaration dated 20 May 2017, he claims that he of Hindu religion. At the hearing, the applicant stated that he was born a Muslim and that he converted to Hinduism to marry his wife who is a Hindu. He described going to the Hindu temple and placing the ‘marriage chain’ around his wife. He further stated that while in Sri Lanka he did go to the temple with his wife and that his children are Hindus.

17. The applicant claims that after coming to Australia he started going to church in around 2012. As set out above, the applicant provided the Tribunal with a letter from [Church 1], written by [Pastor A], and dated 18 June 2024. The letter indicates that the applicant has been a faithful and an active church member from 2012, after his baptism at the church, and has been involved in volunteer work supporting church activities and initiatives.

18. At the hearing, the applicant stated that at the time he did not know that there are Hindu temples in Australia. As he did not know anyone in Australia, [Pastor A] organised for him to go to church and that is why he started going to church. He stated that he converted to Christianity and was baptised in 2012 or 2013. He stated that he follows Christianity by doing volunteer work, going to church, listening to prayers, following the Bible and not talking badly about others. When asked about the denomination of his church, the applicant said that it is a ‘Bible church’ and not a Catholic church. 

19. When asked, given that he says that he converted in 2012 or 2013, why did he not mention this to the delegate, the applicant stated that he was not asked, that he did not understand the questions and then said that he did mention that he is a Christian. As noted above, his SHEV application was prepared by his former representative in 2018 and his religion is not noted as Christian.   

20. When asked if he has told his family in Sri Lanka and what their reactions were, the applicant said that while his wife does not say much, he knows that she is not happy, and that his children are supportive and are happy that he is part of the church and is being guided and following the right path.

21. While I have concerns that the applicant did not provide this information in his SHEV application, lodged several years after his claimed conversion, I accept that the applicant started attending church in 2012 and that he was motivated to do so because he was not aware of any Hindu temples in Australia and did not know anyone. I accept that he became part of the church community and, as indicated at the hearing, the church community provided him with support during difficult times such as during the COVID-19 pandemic and after his surgery in 2020. As indicated in the letter from [Pastor A], and confirmed by the applicant at the hearing, I also accept that the applicant was baptised and has been attending the church, engaging in prayers and undertaking volunteer work. In accepting the applicant’s evidence about his motivation for attending church and converting to Christianity, I am satisfied that his conduct in Australia in this respect has been otherwise than for the sole purpose of strengthening his refugee claims and have considered whether he faces a real chance of serious harm for reasons of his conversion to Christianity.

22. While the applicant did not raise any concerns for his safety for reasons of his conversion to Christianity, and I have doubts as to whether he would continue to practice the religion if returned to Sri Lanka, I did, in general terms, discuss the below country information with him at the hearing.     

23. The most recent 2024 DFAT report[2] indicates that the constitution guarantees freedom of religion. The right to religious conversion is enshrined in the constitution, which protects the freedom to adopt a religion of one’s choice. In-country sources told DFAT that religious conversion happened more so among Sinhalese and Tamils than Muslims (it is reportedly rare for a Muslim to change their religion and that should a Muslim adopt another religion, they would face a high risk of ostracisation from their family and the broader Muslim community).

    [2] DFAT, ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024.

24. Minority religions, including Christianity, have the constitutional right to manifest their religion in public or private worship, observance, practice and teaching. Sri Lanka has a history of religious tolerance and peaceful co-existence between religions and recognises religious holidays for Buddhists, Hindus, Muslims and Christians. While more than 80 per cent of Sri Lankan Christians are Roman Catholic, other sizeable denominations include Anglican (the Church of Ceylon), Assembly of God, Baptist, The Church of Jesus Christ of Latter-day Saints (Mormon), the Dutch Reformed Church, Jehovah’s Witnesses, Methodist and Pentecostal. The Christian community comprises both Sinhalese and Tamils and live countrywide and all major cities have a visible Christian presence. DFAT assesses that Christians, particularly those belonging to the Catholic Church and other mainstream denominations, face a low risk of official or societal discrimination, especially in urban areas. DFAT assesses that the risk of societal discrimination, including physical and verbal threats, is relatively higher for evangelical Christians.

25. While Muslim extremists carried out coordinated suicide bombings against three Christian churches (two Catholic, one Protestant) in Colombo, Negombo and Batticaloa during Easter Sunday services on 21 April 2019, DFAT is not aware of more recent significant incidents of violence or visible hostility against Christians perpetrated by Muslims. In-country Christian sources told DFAT they did not consider Muslims a threat to their community.

26. The applicant responded by saying that he did not know what would happen to him and that there are so many things happening in Sri Lanka. Given the country information cited above which indicates that religious freedom and the right to conversion is enshrined in Sri Lanka’s constitution and citizens have a right to convert and to practise their religion; that there are sizable Christian communities in all provinces; DFAT’s assessment of risk of harm faced by Christians and Christian converts; and the lack of any credible evidence that the applicant will face any issues at the hands of his family, community, or any other person, I consider the chances of the applicant facing any harm as a Christian or Christian convert, or being caught up in terrorist attacks or community/sectarian violence, to be no more than remote if returned to Sri Lanka now or in the reasonably foreseeable future.  

    Past events in Sri Lanka

27. While not referred to at the hearing, the applicant’s evidence before the delegate indicates that prior to moving to Colombo in 2003, he faced harassment at the hands of the Sri Lankan authorities while living in Kandy. 

28. The applicant has consistently claimed that while residing in Colombo between 2003 until his departure in January 2009, the applicant worked as an auto (three-wheeler) driver. During this period, he faced issues with the Sri Lankan authorities and witnessed fighting between the LTTE and the SLA, including shootings, bombings, and missile attacks in the surrounding areas.

29. The applicant claims that when bombings or shooting incidents occurred near his place, the applicant was stopped at checkpoints by the SLA and subjected to harsh interrogation and harassment. As the SLA knew that the applicant was Tamil, they were suspicious that the applicant was assisting and transporting LTTE members and knew information about the LTTE members’ whereabouts and plans.

30. The applicant was also subjected to routine checks by the authorities. They would come to his house twice a week and interrogate him. In addition, twice a month, the applicant along with other Tamils in the area, was taken to the nearby grounds or field. They were interrogated by the SLA to gain information about the LTTE fighters. The SLA officers pointed firearms at them and threatened them with torture and death if they were found to have assisted the LTTE fighters.

31. At the hearing, the applicant made references to having been harassed at checkpoints while driving his three-wheeler and that the authorities were suspicious that he was transporting LTTE members. He referred to bombings in the area which resulted in him being questioned and described the process of having been rounded up with other Tamils in the area. The applicant further referred to an incident when he and his cousin went onto his parents’ roof to fix the roof sheets and that the Sri Lankan authorities came and asked them to come down and took them with other Tamils as part of their regular round up in the area. He also gave details of having been interrogated after a bombing that involved a Minister, and that he was fed up and decided to leave the country.   

32. The applicant has consistently confirmed that he was not a member of the LTTE and was not involved or associated with the LTTE. He was never arrested or detained by the Sri Lankan authorities. The applicant claims that due to constant harassment and interrogation and the conditions in Sri Lanka at the time, he was fearful for his safety and that he and his wife decided to leave Sri Lanka and travelled to India.

33. Country information[3] indicates that many Tamils throughout the country, but especially in the north and east, reported that security forces and paramilitary groups frequently harassed young and middle-aged Tamil men during, and in the aftermath of, the conflict which ended in May 2009. As LTTE members and supporters were almost all Tamils, security forces imputed LTTE support based on ethnicity and emergency regulations were at times applied in a discriminatory manner. Tamils were routinely monitored, harassed, arrested or detained by security forces.

    [3] DFAT, “DFAT Country Information Report – Sri Lanka”, 18 December 2015, CISEC96CF14143; US Department of State, “Sri Lanka - Country Reports on Human Rights Practices 2012", 1 April 2013, OG0DB5438166; US Department of State, “Sri Lanka - Country Reports on Human Rights Practices 2013", 27 February 2014, OG1F18C90164; US Department of State, “Human Rights Report 2014 Sri Lanka", 25 June 2015, OG2B06FAF8.

34. Country information[4] also reports that reported that during the war, thousands of Tamil Sri Lankans fled the country and sought refuge in Tamil Nadu in India, residing in 107 refugee camps dispersed throughout Tamil Nadu. It is reported that on arrival the Indian Q branch interviewed refugees, thoroughly examining their papers to ascertain to the satisfaction of the police that they had no connection with militant groups and allocated them to camps. Sri Lankan refugees residing at the camps received monthly cash and in-kind assistance from the Indian and Tamil Nadu governments and had limited access to work and education rights. 

    [4] United Nations High Commissioner for Refugees (UNHCR), "UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka", 21 December 2012, UNB0183EA8; DFAT, ‘DFAT Country Information Report – Sri Lanka’, 18 December 2015, CISEC96CF14143; DFAT, “DFAT Country Information Report India”, 9 December 2020, 20201210103716; 'DFAT, “Country Information Report Sri Lanka”, 4 November 2019, 20191104135244.

35. Considering the applicant’s broadly consistent evidence about his experiences as a Tamil man living in Colombo in the years before the end of the civil war in May 2009, his decision to travel with his family to Tamil Nadu given the situation at the time, and the country information cited above, I accept the applicant’s claimed experiences. I accept that while the applicant was not an LTTE member and had no association or interaction with the LTTE, as a Tamil male living in government controlled areas during the civil war, he was subjected to interrogation at checkpoints and that he, along with other Tamils in the area, was the subject of routine checks by the SLA during which he was interrogated about his knowledge of LTTE members and threatened with harm should he be found to have assisted the LTTE, and that during these interrogations the SLA used weapons to intimidate them. I am not of the view that the applicant faced these issues due to his occupation as a taxi driver but rather due to the authorities having been on high alert about the operations of the LTTE. I note the applicant’s evidence that all taxi drivers were subjected to these interrogations and questioning at that time. Given the situation at the time, I also accept that the applicant witnessed incidents involving continued fighting between the Sri Lankan authorities and the LTTE and that when there were incidents, such as bombings in the area or its surrounds, that the applicant and other Tamils were interrogated.

1. The applicant’s evidence, which I accept, is that he was not a member of the LTTE. While I accept that the questioning of the applicant and other Tamils was based on the SLA’s suspicion that they may know of or about other LTTE members, the applicant’s evidence is that he was not arrested or detained by the SLA and was always released after interrogations at checkpoints and routine checks. His evidence does not indicate that he was ever accused of being an LTTE member by the Sri Lankan authorities. On the applicant’s evidence, while he was subjected to harassment and interrogation, which was the case for most Tamils at the time given the ongoing war with the LTTE, I am not of the view that he was of any ongoing concern to the authorities or suspected of having any links with the LTTE while residing in Sri Lanka or at the time of his departure from the country in 2009. 

2. As indicated above, the applicant claims, and I accept, that he and his family departed Colombo in January 2009 prior to the end of the war in May 2009. The applicant and his family departed the country using their Sri Lankan passports. While I accept that he paid an agent to organise their passports and visas to India, given the applicant’s lack of any adverse profile with the authorities, I do not accept that any Sri Lankan officials were bribed and his evidence is that they did not face any problems departing the country.

3. In addition, on the applicant’s evidence, after being questioned by the Indian authorities on arrival in India, he and his family were allowed to join his wife’s family at the refugee camp in Tamil Nadu and there is no indication that he faced any follow-up interrogation, was suspected of any involvement with the LTTE, or faced any issues while residing at the refugee camp. This further indicates that the applicant did not have any adverse profile of interest to the Sri Lankan or the Indian authorities.  

4. While the applicant has made claims that, after his departure, his mother was visited by the authorities who inquired about his whereabouts, I do not accept that the authorities came to his mother’s house asking about him because he was of any concern to them. The applicant’s evidence before the delegate suggested that given that his house was vacant and located across from his parents’ home, the authorities inquired about the occupants and his mother told them that he had departed for India.

5. At the hearing, the applicant made claims that while he speaks with his parents often, they only speak to him for a minute or so because they are scared. He also provided a document said to be from his mother, addressed to him, asking him not to return to Sri Lanka as it is not safe for him and that the Criminal Investigation Department (CID) officers are always on the hunt for him, asking about his whereabouts. As noted at the hearing, the document does not include the applicant’s mother’s name nor the applicant’s name and is address to ‘dear son’. It is not signed and is written in English. When questioned about the origin of the document, the applicant said it was emailed to him, but he could not explain from whom. When asked about when he received it, the applicant made references to a voicemail on his phone in 2020 from his mother. When referred to his earlier evidence that his parents are scared to talk to him, yet they left him a voicemail that the CID are looking for him, the applicant vaguely referred to his mother having gone to a room to leave a voicemail. When I indicated that given the nature of the document provided and the description of the voicemail, I could not give them weight in assessing his claim, the applicant stated that he also did not take these matters seriously. When asked how his mother knew that the people in civilian clothing are from the CID, the applicant referred to the manner in which these people behave and dressed.

6. Given my findings about the applicant’s profile with the Sri Lankan authorities while residing in Sri Lanka and the nature of his evidence relating to subsequent events after his departure from Sri Lanka, while I am willing to accept that the applicant’s mother may have been questioned about the whereabouts of the owners of the vacant property across from her house, I do not accept that the applicant’s mother was questioned by the SLA, CID or the police about the applicant’s whereabouts as claimed.

7. In addition, I note the applicant’s evidence about his family’s return from India to Sri Lanka in 2018. His evidence is that his wife was interrogated and asked about the applicant’s whereabouts. She informed the authorities that the applicant is in Australia and she was released and has since been living in Colombo and Kandy with their sons. I also note that the applicant’s sons have been able to depart and return to Sri Lanka without facing any issues and that they are currently residing, working, and studying in Kandy. At the hearing, the applicant did not indicate that his wife or children have faced any issues in connection with him or otherwise.  

8. Country information[5] support the applicant’s evidence that returnees from India are routinely questioned by Sri Lankan authorities. I accept that the applicant’s wife was questioned by the Sri Lankan authorities, as part of the authorities routine interrogation of arrivals from India, but was released and allowed to return to her home area.  While I accept that the applicant’s wife was asked about the applicant’s whereabouts, given that he departed the country with his family in 2009, and that his wife told them that he is in Australia, I do not accept that his wife was questioned in this regard because the applicant is of any concern to the authorities or that they are looking for him.

   [5] DFAT, ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024.

9. In light of the discussion above, on the applicant’s evidence, while I accept that like many Tamils living in Sri Lanka during the civil war the applicant encountered harassment, interrogation, and at times was threatened with harm, and that such treatment and ongoing interrogations resulted in him fearing for his and his family’s safety causing them to decide to leave the country for India, I am not satisfied that the applicant was suspected of having links with the LTTE because of his occupation as a taxi driver or otherwise, or that he had an adverse profile with the Sri Lankan authorities at the time of his and his family’s departure for India in 2009. I do not accept that following his departure, the authorities were looking for him, questioned his mother about his whereabouts as claimed, or that his family in Sri Lanka have faced any issues in connection with the applicant’s past interactions with the authorities, his lack of assistance with LTTE investigations, or otherwise.

   Tamil ethnicity /link with the LTTE

10. The applicant claims that he fears harm for reasons of his Tamil ethnicity and that on return he will be he linked with the LTTE and subjected to harsh interrogation, detention, and torture. 

11. I accept that the applicant’s experience in Sri Lanka has had a lasting impact on him and that he has a subjective fear of returning to Sri Lanka. As discussed with the applicant at the hearing on several occasions, in assessing the applicant’s risk of harm in the foreseeable future, I must not only consider the applicant’s past experiences and historical country information which confirms mistreatment of Tamils by the Sri Lankan authorities, but also consider the most recent country information regarding the political and security environment of the country and the treatment of Tamils with a similar profile to the applicant returning to Sri Lanka after an extended period of absence from the country.   

12. Country information[6] before me indicates that the security and social situation for Tamils in Sri Lanka has improved significantly since the end of the civil war in May 2009 and the applicant’s departure from Sri Lanka in January 2009. After the 2015 election, the then President Sirisena promised a new era of ‘clean’ government and embarked upon a path of reconciliation with the Tamil minority. The government committed to implementing a range of truth, justice and reconciliation measures under the UN Human Rights Council resolution. Many initiatives markedly improved the lives of Tamils in Sri Lanka, which included: the recognition of both Sinhala and Tamil as the official languages of the country; the lifting of restrictions on travel to the north and east of the country; the freeing of civilian land from military control; the release of some individuals detained under the Sri Lankan Prevention of Terrorism Act (PTA) and the government’s public commitment to reducing military involvement in civilian activities. Such measures resulted in a decrease in the number of Tamils held in detention and reduced incidents of extrajudicial killing, disappearances, abductions, extortion and kidnapping for ransom.

    [6] DFAT, “DFAT Country Information Report – Sri Lanka”, 18 December 2015, CISEC96CF14143; DFAT, “DFAT Country Information Report - Sri Lanka”, 23 December 2021, 20211223094818; UK Home Office, “Report of a Home Office fact-finding mission to Sri Lanka”, 20 January 2020, 20200123162928; UK Home Office, “country Policy and Information Note Sri Lanka – Tamil Separatism”, 17 June 2021, 20210624114752.

13. Regarding developments in the country’s political landscape in the recent years, DFAT[7] reported that the Sirisena government faced a constitutional crisis when the President briefly appointed Mahinda Rajapaksa as his Prime Minister in a move that was not approved by the parliament. As Mahinda Rajapaksa’s prior 10-year presidency, between 2005 and 2015, was marked by accusations of corruption and human rights violations including war crimes against Tamils, both Tamils and non-Tamils expressed concerns that human rights improvements achieved since 2015 would be reversed if Rajapaksa came into power. The election held in November 2019 saw his brother, Gotabaya Rajapaksa, become the new President. The 2020 parliamentary election, reported to be mostly credible, resulted in a two-third majority in the Sri Lankan parliament led by Prime Minster Mahinda Rajapaksa.

    [7] DFAT, “DFAT Country Information Report - Sri Lanka”, 23 December 2021, 20211223094818.

14. It is reported that following the election of the Rajapaksa government, the progress made under the Sirisena government was seen to have been reversed in direction with threats of a return to the patterns of discrimination and widespread violation of human rights experienced in the past decade. Local sources expressed concern about the militarisation of the civilian government under the Rajapaksa government and increasing use of the PTA to silence critics of the government. International organisations have expressed concerns about the Sri Lankan government seeking to stifle and supress critics with knowledge of historical abuses during the war.

15. Country information reports[8] that in 2022, Sri Lanka experienced the worst economic crisis in its history, triggering major social and political unrest, resulting in the resignation of the Rajapaksas. It is reported that for months, Sri Lankans faced severe shortages of fuel, electricity, medicines and other essential items. In the face of the collapsing economy, from March 2022, Sri Lankans came together from various socioeconomic, cultural, ethnic, and religious backgrounds in a mass protest movement to demand greater transparency, accountability for corruption and economic mismanagement and increased participation in democratic life. Following ongoing protests, in May 2022, Prime Minister Mahinda Rajapaksa tended his resignation and was replaced by five-time former Prime Minister, Ranil Wickremesinghe. In July 2022, President Gotabaya Rajapaksa and his wife fled Sri Lanka for [Country 1] from where he resigned. On 15 July 2022, Ranil Wickremesinghe was sworn in as acting President and was officially elected by a clear majority on 20 July 2022. Upon election, President Wickremesinghe acknowledged Sri Lanka’s ethnic and religious diversity, and the importance of finding solutions to the issues facing the Tamil community, including with respect to land and economic development.

    [8] DFAT, “DFAT Country Information Report - Sri Lanka”, 23 December 2021, 20211223094818; DFAT, ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024; International Crisis Group (ICG), “Sri Lanka’s Uprising Forces Out a President but Leaves System in Crisis”, 18 July 2022, 20220719124014; The Economist, “In with the old - Sri Lanka picks a new president to replace the one that fled”, 21 July 2022,20220722101909.

16. The 2024 DFAT report[9] indicates that the government’s efforts to unite the nation and improve the economic conditions in the country were ongoing at the time of publication of the report, although progress was limited. The report also notes that in-country sources told DFAT the economic situation had stabilised since 2022 and reported: essential items were available; inflation was in single digits; the rupee had appreciated; and power cuts had ended. In-country sources told DFAT that, regardless of ethnicity, economic conditions were the primary concern of Sri Lankans and the main reason people wanted to leave the country.

    [9] DFAT, ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024.

17. Regarding the situation for Tamils in Sri Lanka, country information[10] indicates that Tamils are the second largest ethnic group in Sri Lanka, Tamil political parties are active, with the largest coalition of parties operating under the umbrella of the Tamil National Alliance, which, following 2020 parliamentary elections, held 10 seats in parliament. In 2024, there are 2 Tamils in the Wickremesinghe government, with the current Attorney-General also of Tamil ethnicity. In-country sources have reported that the level of state hostility towards Tamils had eased under the Wickremesinghe government, and that Tamils did not feel threatened.

    [10] DFAT, ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024; DFAT, “DFAT Country Information Report - Sri Lanka”, 23 December 2021, 20211223094818; DFAT,”DFAT Country Information Report – Sri Lanka”, 18 December 2015, CISEC96CF14143; UK Home Office, “country Policy and Information Note Sri Lanka – Tamil Separatism”, 17 June 2021, 20210624114752.

18. It is reported that while some Tamils report discrimination in employment, particularly in government jobs, in-country sources attribute this to linguistic barriers because Tamils speak neither Sinhala nor English. The 2024 DFAT report[11] assesses that Tamils are at low risk of official discrimination on ethnic grounds, including in public sector employment, and that under-representation of Tamils in the public sector is largely the result of language constraints, not official policy.

    [11] DFAT, ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024.

19. While it is reported[12] that monitoring and surveillance of Tamils in the north and east of the country, particularly those suspected of promoting statehood and those who are engaged in politically sensitive issues related to human rights or war and those who previously belonged to the LTTE, is said to have continued, DFAT assesses that ordinary Tamils, including those who live in the north-east, face a low risk of monitoring, harassment, arrest and detention.

    [12] DFAT, ‘DFAT Country Information Report - Sri Lanka’, 23 December 2021; DFAT. ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024.

20. It is reported[13] that while the LTTE was comprehensively defeated in May 2009, Sri Lankan authorities remain concerned over its potential re-emergence, and to separatist tendencies in general. It is reported that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members, supporters and other separatists, including “stop” and “watch” electronic databases, which remain active. However, it is reported that Tamils with former links with the LTTE, and those who are not politically active, are generally able to lead their lives without concern for their security as a result of their past association with the LTTE, with the government focusing on Tamil activities in the diaspora who are working for Tamil separatism to destabilise the government. High-profile leaders of pro-LTTE diaspora groups, particularly those groups banned under the Sri Lankan law, may come to the attention of the authorities upon return. Activities of concern to the government may include participation in demonstrations and meetings, holding flags or banners displaying the LTTE emblem, engaging in meaningful fundraising for such groups, presence in social media and signing petitions. The June 2021 UK Home Office report[14] also indicates that while the Sri Lankan government views the Tamil diaspora with a generally adverse mindset, it does not regard the entire cohort as either holding separatist views or being politically active in any meaningful way. DFAT[15]assesses that Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their security risk profile. Persons who hold leadership positions in Tamil diaspora groups are of particular interest to the authorities, particularly: groups deemed to hold radical views by the Sri Lankan Government; persons who were formerly part of the LTTE, particularly in high-profile roles; persons suspected of raising funds for the LTTE during the war; and persons who actively advocate for Tamil statehood.

    [13] DFAT 2024; DFAT 2021; UK Home Office, “Sri Lanka: Tamil separatism. Version 8.0", August 2022; 20220930153437

    [14]UK Home Office, “Country Policy and Information Note Sri Lanka: Tamil Separatism”, June 2021.

    [15] DFAT, ‘DFAT Country Information Report - Sri Lanka’, 23 December 2021; DFAT. ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024.

21. In conclusion the country information cited above also indicates that Tamils do not face persecution for reasons of their ethnicity alone and that only those considered by the Sri Lankan government to have had a “significant role” with the LTTE or engaged in Tamil diaspora separatism activities are of concern to the authorities. The UK home office report[16] notes that factors such as the nature of any particular organisation on behalf of which the individual has been active, the type of activities by the individual, the extent and duration of those activities, and any relevant history in Sri Lanka and familial connections, are relevant in assessing an individual’s profile and the assessment of the risk that they face if returned to Sri Lanka.

    [16] UK Home Office, “Sri Lanka: Tamil separatism. Version 8.0", August 2022; 20220930153437.

22. The country information cited above was discussed with the applicant in general terms at the hearing. I observed that since the applicant’s departure from Sri Lanka in January 2009, the civil war ended and there have been major political and security changes, including significant improvements in the situation for Tamils. I explained that, given the applicant’s profile, in that he was not involved with the LTTE while in Sri Lanka and has not engaged in any activities that would be of any concern to the Sri Lankan authorities while in India and Australia, it did not appear to me that he faced a real chance of any treatment that would amount to serious harm if returned to Sri Lanka for reasons of his Tamil ethnicity or past interactions with the Sri Lankan authorities. I also explained that given the country information about the situation for Tamils, particularly outside of the northern and eastern provinces, and his evidence that his son is now working as a driver and has not faced the same issues that he did in the past, it did not appear to me that he would face constant interrogation and harassment linked with the LTTE, or face any other issues that would amount to serious or significant harm on these bases if he returns to Sri Lanka. The applicant reiterated that he is fearful for his safety and that there are no guarantees that he would be safe.

1. In addition, I noted that while the election of the Rajapaksa government caused many Tamils to be anxious and fear the return of persecution of Tamils, that did not eventuate. Furthermore, while the country endured a severe economic downturn in 2022 which also led to the resignation of the Rajapaksa government, country information indicates that the economy has now stabilised and the security and political landscape in Sri Lanka has remained stable under the new president. The applicant stated that he continues to fear for his safety and that while the Australian government assisted Sri Lanka, this was not reported on by the Sri Lankan government.     

2. Considering the applicant’s profile in the context of the country information cited above, I am not satisfied that he faces a real chance of serious harm for reasons of Tamil ethnicity, his past limited interactions with the SLA during the war and over a decade ago, his lack of assistance with investigations about LTTE activities during the war, his legal departure for India in 2009, or that he will be linked with the LTTE and subjected to any treatment that would amount to serious harm if returned to Sri Lanka now or in the reasonably foreseeable future.

3. In addition, at the hearing the applicant referred to having been a member of the auto-drivers union and a member of a political party prior to his marriage in 1993. While the applicant referred to having been required to attend election campaigns as a member of the union, he did not indicate that he faced any issues as a result. He confirmed that he has not been a member of any political parties since 1993 and has not engaged in any political activities while in Sri Lanka or in Australia. The applicant has not expressed any desire to engage in any political activities if returned to Sri Lanka and I am not of the view that he has any interest or would engage in such activities if returned to Sri Lanka. I did however refer to country information about Tamil political parties remaining active in Sri Lanka. The applicant did not respond nor state that he feared any harm for reasons of his past and very limited engagement with the union or any political parties, and I am not satisfied that the applicant faces a real chance of any harm on this basis if returned to Sri Lankan now or in the reasonably foreseeable future.  

   Health conditions

4. At the hearing, in discussing the medical information provided to the Tribunal, the applicant confirmed that he has been diagnosed with [medical condition 1], was operated on, and that the photographs were taken while he was undergoing treatment at [Hospital 1]. The applicant stated that he has been reviewed and was being monitored for his condition and that he is better and not taking any medication in relation to [this] diagnosis. Regarding his other medications, the applicant stated that he takes medication for high blood pressure, reflux, and nerve damage that he sustained as a result of a work injury, and that he controls his diabetes with his diet. I accept the applicant’s evidence in this regard.

5. When referred to the MHCPs by his doctor in March 2023 and June 2024 and his referral to a psychologist, the applicant stated that he has not seen a psychologist because he has been unable to secure an appointment. He confirmed that he has not been prescribed any medication in this regard. I accept the applicant’s evidence in this regard.

6. When asked about his concerns about his health conditions if returned to Sri Lanka, the applicant said that he provided these documents to the Tribunal because he wanted the Tribunal to know. When asked if he had any concerns for his heath, the applicant said that he is very scared to go back to Sri Lanka and that he has no faith in the doctors in Sri Lanka to give him proper treatment. When referred to his evidence that the only treatment he is under is medication for reflux, nerve damage, and blood pressure, the applicant agreed.

7. I observed  information in the applicant’s MHCP that he was referred to a psychologist because he feels sad and depressed because he has not seen his family, was unable to participate in their special occasions, and found it difficult to cope with his medical conditions without their support, and put to the applicant that if he returned to Sri Lanka he would have his family’s support and a lot of his anxiety would subside. The applicant stated that he was fearful to return.   

8. DFAT reports[17] that Sri Lanka inherited a well-developed health care system at independence and that the country’s health care system has a long record of strong performance. Colombo is noted to have the best health services and outcomes in the country.

   [17] DFAT, ‘DFAT Country Information Report - Sri Lanka’, 23 December 2021; DFAT. ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024.

9. The public health system is free for all Sri Lankan citizens and medicines can be accessed free of charge from government-run hospitals in all provinces. According to the World Health Organisation, the health system provides access to all ‘required medicines’ prescribed in the state system in Sri Lanka free of charge. Patients acquiring medicines privately do incur out-of-pocket expenses which, according to local sources, are considerable. According to the UN High Commissioner for Human Rights, by the end of May 2022, almost 200 medical items were in shortage, including 76 types of drugs for life-threatening illnesses and essential surgical equipment. There were also shortages of basic medications like paracetamol and vitamin C, as well as anti-rabies vaccines. However, it is reported that medical shortages have since eased considerably. In-country sources estimated that, as of June 2023, 90 per cent of medications were available in the public system in the Northern Province and expected the situation to return to normal by the end of that year.

100.   Private healthcare is also available and of high quality, particularly in Colombo. Where medicines are unavailable in the public system, they are available for purchase at private pharmacies at a cost, with insulin and medication to treat heart disease reported to be particularly expensive. Medication for diabetes, cholesterol, high blood pressure and influenza were widely available and accessible. DFAT assesses there is no discrimination on the basis of ethnicity or religion in accessing healthcare in Sri Lanka. DFAT assesses that acute pressures on the health system created by the economic crisis have abated and shortages of medical items have eased; however, outward migration of medical professionals is impacting the overall capacity of the health system, particularly in rural areas, negatively affecting access to health services.

101.   DFAT also reports that mental health services are available in Sri Lanka. Government-run hospitals have mental health units, and medication to treat mental illness is provided free of charge through the public system. The Ministry of Health operates a dedicated mental health hospital – the National Institute of Mental Health – in Colombo. Mental health services are also available through private hospitals and clinics, although the cost is prohibitive for the average Sri Lankan. DFAT assesses that, while social stigma attached to mental illness is not as acute and widespread as it once was, particularly in Colombo and other major urban centres, it continues to deter many people from seeking necessary support.

102.   While I note the applicant’s worries about not receiving proper healthcare in Sri Lanka, as discussed at the hearing, the country information cited above indicates that Sri Lanka has a well-developed health care system and it does not appear that he will not be able to access medication, the public healthcare system to monitor his conditions, or any mental health care services should he require such services on return to Sri Lanka.

103.   Furthermore, I explained that information before me indicates that there is no discrimination based on ethnicity or religion in accessing healthcare in Sri Lanka and pressures on the health system created by the economic crisis have abated and shortages of medical items have eased. Mental health services are also available in Sri Lanka with government-run hospitals having mental health units, and medication to treat mental illness is provided free of charge through the public system. Colombo is identified as an area where access to high quality healthcare is available.

104.   I observed that while the applicant may not have access to the level of care that he has accessed in Australia, the country information does not appear to indicate that he would face any issues or challenges in accessing healthcare that would amount to serious harm or that he would be denied access to healthcare services for any reason. The applicant stated that while everything is there to access, people are being pushed to access private healthcare which is expensive. While I accept that people may be told, in some circumstances and for various reasons, to access private healthcare, the information indicates that public healthcare is available and accessible and there is no indication that the applicant will be denied access to public or private healthcare.

105.   While the applicant may face some challenges and incur some costs in accessing private healthcare or medications, the information cited above does not indicate that he will be denied access to health care due to his ethnicity or otherwise, or that the challenges that he may face in accessing medication or private healthcare, given his circumstances, would amount to serious harm should he return to Sri Lanka now or in the reasonably foreseeable future.

Returned asylum seeker

106.   The applicant claims that on return to Sri Lanka, he would be subjected to arrest and interrogation as a failed asylum seeker returning from a western country,

107.   The applicant departed Sri Lanka legally using his own passport. He claims, and I accept, that he is not in possession of a valid Sri Lanka passport.

108.   Country information[18] indicates that Sri Lankans without passports can re-enter the country on a temporary travel document, also known as an Emergency Passport or a Non-Machine-Readable Passport, issued by diplomatic and consular missions and valid for re-entry to Sri Lanka. Given that the applicant is no longer in possession of his passport he may well be returning to Sri Lanka on a temporary travel document. For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity, which would identify someone trying to conceal a criminal or terrorist background or trying to avoid court orders or arrest warrants. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.

[18]DFAT, ‘DFAT Country Information Report – Sri Lanka’, 23 December 2021; DFAT. ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024.

109.   DFAT[19] reports that It is not a crime for a Sri Lankan to seek asylum abroad. Sri Lankans who fail to secure asylum in Australia return to Sri Lanka (Colombo Airport) on either commercial or charter flights. On arrival at Colombo Airport, failed asylum seekers go through immigration, where their identities are verified. For those returning on temporary travel documents, the process will take longer. According to in-country sources, failed asylum seekers returning on charter flights were processed much quicker, as their identities had been verified in advance.

[19] DFAT, ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024.

110.   DFAT also reports[20] that depending on the circumstances of their departure from Sri Lanka (i.e. if they departed legally or illegally), personal history (i.e. if they have a criminal background in Sri Lanka) and whether they are travelling on temporary travel documents, failed asylum seekers may face further questioning from Sri Lankan Immigration, the State Intelligence Service, Navy Intelligence (SLNI) and the CID. These agencies check travel documents and identity information against immigration and intelligence databases and records of outstanding criminal matters. Returnees of particular interest are those who have been involved in organising or facilitating people smuggling ventures and those with outstanding court orders. This process should identify someone trying to conceal a criminal or terrorist background or trying to avoid court orders or arrest warrants. DFAT is not aware of recent returnees being mistreated during processing at Colombo airport.

[20] DFAT, ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024.

111.   As discussed with the applicant at the hearing, given that he departed Sri Lanka legally, does not have a criminal background in Sri Lanka or abroad, and has not engaged in any activities that would be of concern to the Sri Lankan authorities, it does not appear that he would be identified as a person of interest at the airport or subjected to further interrogation, arrest, or detention. Although the arrival process could take several hours, on the information before me it appears that all returnees are treated according to these standard procedures, regardless of their ethnicity or religion. The information before me also does not support that having returned from a western country, the applicant will be linked with the LTTE and be subjected to mistreatment.

112.   In response to my discussion of the country information, the applicant stated that he is aware of 2 men who returned from France to Sri Lanka having been detained and that they disappeared. When asked to provide details, the applicant said that this occurred 4 or 5 years ago, that he does not know about their profiles or the circumstances of their arrest. As indicated at the hearing, while people with a profile of interest to the authorities may be arrested or detained at the airport, given the applicant’s particular profile, it did not appear to me that he would be arrested or detained or subjected to mistreatment.  

113.   Having considered the applicant’s profile as a whole, including that he may be suffering from a degree of mental distress given his circumstances in Australia and that he continues to remain fearful for his safety, I am not satisfied that he faces a real chance of serious harm during the arrival process at the airport.   

114.   DFAT reports[21] that the International Organization for Migration (IOM) meets voluntary returnees after immigration clearance at the airport and provides cash and onward transportation assistance. This is reported to be an amount of approximately AUD5,000 and many have reported to have used this money to start businesses. While some failed asylum seekers may experience difficulty finding suitable employment and reliable housing on return, they can often fall back on family and community networks for support. The IOM monitors returnees’ welfare, including through in-person visits and telephone calls.

[21] DFAT, ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024.

115.   In-country sources told DFAT they were not aware of failed asylum seekers, including those with suspected LTTE links, being subjected to official harassment, including monitoring, or official or societal discrimination following their return to Sri Lanka. In-country sources said it was possible that a failed asylum seeker with a criminal history could be monitored, but it would be on the basis of their criminal history, not their ethnicity. Overall, DFAT assesses that failed asylum seekers face a low risk of official harassment and societal discrimination on their return to Sri Lanka.

116.   The applicant’s wife and [children] are residing in Sri Lanka. The applicant has a home in Colombo and his family have built a house in Kandy. His evidence is that he is in daily contact with his family and that they wish to see him. He has worked in Sri Lanka, India, and Australia and has skills to obtain employment. As discussed at the hearing, while the country information indicates that Sri Lanka suffered its worst economic crisis in 2022 that had a widespread impact on the country as a whole, the most recent DFAT report[22] indicates that it has stabilised, essential items are available, inflation is in single digits, the currency has appreciated, and power cuts have ended. Given the applicant’s background and circumstances, including his current health conditions, I am not satisfied that there is a real chance that the applicant’s capacity to subsist would be threatened or that he would otherwise face a real chance of persecution. I consider the chances of the applicant facing any issues that would amount to serious harm, due to the country’s economic situation, his status as a returned asylum seeker or his extended absence from the country to be no more than remote.

[22] DFAT, ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024.

Refugee assessment

117.   In light of my findings above and considering the applicant’s circumstances and overall profile in the context of the country information cited above, I am not satisfied that the applicant faces a real chance of persecution, if returned to Sri Lanka now or in the reasonably foreseeable future, for any of the claimed reasons or arising on the material before me. I am not satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J of the Act.

1. The applicant does not meet the requirements of the definition of refugee in s 5H(1). The applicant does not meet the criterion under s 36(2)(a) of the Act.

   Complementary protection assessment

2. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa), which requires an assessment of whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant would suffer significant harm.

3. Significant harm is exhaustively defined in s 36(2A) of the Act. 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. Included in this definition is the requirement that the pain or suffering must be intentionally inflicted or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.

121.   As set out above, I accept that on arrival at the Colombo airport, the applicant will very likely be subjected to an investigation process to establish his identity and background. For the reasons explained above, I am not satisfied that there is a real risk that he would be identified as a person of interest or otherwise be harmed during this process. I do not consider that the treatment that the applicant may face during the arrival process amounts to a level of pain, suffering or humiliation required by the definition of torture in s 5(1) of the Act, nor cruel or inhuman or degrading treatment or punishment. I am not satisfied he faces a real risk of arbitrary deprivation of his life or being subject to the death penalty or tortured.

122.   I accept that the applicant in accessing health care services and medication may incur some costs and that he may not have access to same level of care and monitoring that he has in Australia. I am not satisfied that any challenges that he may face will amount to significant harm, in that it will be due to intentional infliction of pain or suffering that can reasonably be regarded as cruel and inhumane in nature, severe pain or suffering or an intention to cause extreme humiliation such as to meet the definitions of torture or cruel or inhumane treatment or punishment or degrading treatment or punishment. I am also not satisfied that the applicant will face a real risk of being arbitrarily deprived of his life or be subject to the death penalty or torture.   

123.   I am not satisfied that the applicant faces a real chance of serious harm for any reason, including his Tamil ethnicity, his past interactions with the Sri Lankan authorities prior to the end of the war in May 2009, his departure for India in January 2009, his limited engagement with the auto drivers’ union or politics, his religion, or that there is a real chance that the applicant would be denied the capacity to earn a livelihood, such that his capacity to subsist would be threatened. The Federal Court[23] has held that ‘real risk’ imposes the same standards as the ‘real chance’ test. For the reasons above, I am also not satisfied that the applicant faces a real risk of significant harm.

[23] MIAC v SZQRB (2013) 210 FCR 505.

124.   I am also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he would suffer significant harm for any reason. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

1. The applicant has not claimed and there is no suggestion that the applicant satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2) of the Act.

   DECISION

126.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Samira Kamandi
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.

…