1908769 (Refugee)

[2023] AATA 2533

1908769 (Refugee) [2023] AATA 2533 (6 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Senthil Rajan Sinnarajah (MARN: 0001074)

CASE NUMBER:  1908769

COUNTRY OF REFERENCE:                   Sri Lanka

DEPUTY PRESIDENT:  Antoinette Younes

DATE:6 June 2023

PLACE OF DECISION:  Sydney

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

Statement made on 06 June 2023 at 11:47am

CATCHWORDS

REFUGEE – Protection Visa –Sri Lanka – Federal Court remittal –race – Tamil – religion – Hindu – imputed political opinion – prior history of arrest and residence in an area previously controlled by the LTTE– membership of the particular social group – successful and wealthy Tamil businessmen – a failed seeker of refuge – extortion – effective protection measures are not available to the applicant – applicant has a well-founded fear of persecution– relocation is not reasonable – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5H, 36, 65, 91, 499

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 19 November 2012 and the delegate refused to grant the visa on 8 May 2014.

3. This matter has been before the Tribunal (differently constituted) previously; on 31 August 2015 the previously constituted Tribunal affirmed the delegate’s decision.  On 19 March 2019, the Federal Court of Australia remitted the matter to the Tribunal for reconsideration.

4. The applicant appeared before the previously constituted Tribunal on 18 August 2015 and before this Tribunal on 27 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

5. The applicant provided post-hearing submissions.

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

   RELEVANT LAW

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

   Refugee criterion

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

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

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

10. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

11. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

12. Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

13. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

14. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

15. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

16. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

17. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

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

19. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if: he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

20. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where: it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by the applicant personally (s 36(2B) of the Act).

    Mandatory considerations

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The Tribunal has before it, and has had regard to relevant information contained in the Department’s file and the Tribunal’s files relating to the applicant. The Departmental file contains documents including a copy of the Biodata Interview dated 22 June 2012, the Irregular Maritime Arrival Entry Interview (EI) on 26 July 2012, the applicant’s statements, his Form 80 (Personal Particulars Form), copies of identity and supporting documents, a copy of the recording of the protection interview with the delegate on 13 November 2013, post-interview submissions, and a copy of the delegate’s decision record.

23. The Tribunal files contain a copy of the delegate’s decision record provided to the Tribunal by the applicant with the application for review, as well as submissions provided by the representatives.  Relevantly, there is a letter from [a named] Mental Health Practitioner, [a] Medical Practice, dated 16 August 2015, referring to the applicant’s depression and “significant traumatic events” that had occurred in Sri Lanka.

24. Post-hearing, the applicant provided a report from Mr [A], [Counsellor], dated 2 May 2023.  Mr [A] referred to self-reported mental health issues and recommended further psychological treatment.  The Tribunal also received a brief report dated 19 May 2023 from Dr [B], Consultant Cardiologist.  Dr [B] referred to the applicant’s previous chest pain and concluded that the chest pain was not cardiac in origin.

25. In his statement dated 24 October 2012, the applicant claimed that:

    ·He was born in [year] in [City 1], Eastern Province.  His ethnicity is Tamil and his religion is Hindu.

    ·He, like generations of his family, worked as a [Occupation 1] and [Occupation 2]. His mother was a housewife. He is the youngest child in his family; he has [number of siblings], all of whom are [Occupation 2]s.

    ·In his village, the head of police is called “[name]” and is a three-star graded policeman.  From 1996 until 2008, throughout [City 1], the policeman asked local [Occupation 2]s and [Occupation 1]s for approximately 15,000 to 20,000 rupees once every few months as they were known to be wealthy.  He refused to give money because the police are Singhalese and they have tortured and killed Tamils in his area. 

    ·In 1996, he was detained and beaten for three days because he refused to pay.  He was later released on payment of 10,000 rupees.

    ·In June 2007, he was detained in a dark room for two months by the police and he was tortured.  This happened because he came from an area which was controlled by the Liberation Tigers of Tamil Eelam (LTTE).  He suffered mental health issues as a result of the torture.

    ·In 2011, whilst on his motorbike[1] taking [an] order to the shop, a soldier demanded a ride with him, held a gun at his head, and stole the whole [order].

    ·Subsequent to the incident, military groups associated with the army called him on two occasions in May 2012 trying to extort money.  On 20 May 2012, a white van came to his home to get the money or abduct him but he was at the back of the house. His wife was told that he needed to pay or be abducted or shot on sight. After they left, his wife told him to go to India. The next day he left and went to a friend’s house. He was persuaded to go to Australia instead of India.

    ·He arrived in Australia on [date] June 2012.

    [1] In submissions to the previous Member, dated 19 May 2015, the applicant’s representative highlighted that there is confusion on the part of interpreter/translator in relation to the use of ‘motorbike’ – the applicant never owned a motorbike but a “three wheeler – auto”.

26. The applicant provided an amended statement which is undated, but which the Tribunal notes is recorded by the delegate in the decision record as having been provided to the delegate on 13 November 2013.  In that statement, the applicant added that since coming to Australia, in January or February 2013, his family told him that the Criminal Investigation Department (CID) regularly went to their home in [City 1] and threatened his wife for money.

27. During the EI, the applicant claimed that:

    ·In 1990, people were arrested and beaten.  A section of the army [carried] out violence and killings.  His family was displaced and forced to go into hiding.

    ·He lived his life but there were constant roundups and he was impacted in 1992 when he was subjected to a round up.  He had to show his ID and he was told that he was restricted to the area of [name].

    ·He had no involvement in political groups but he participated in religious festivals. 

    ·He left Sri Lanka by boat on [date] May 2012.

28. During the EI, the applicant provided family photographs and an exercise book relating to his medical issues.

29. In submissions dated 12 December 2013, the representative contended that the applicant fears harm on the basis of his Tamil ethnicity, imputed political opinion arising from his prior history of arrest and residence in an area previously controlled by the LTTE, and membership of a particular social group, namely successful and wealthy Tamil businessmen, and a failed asylum seeker.  The representative relied on country information to support those contentions.  The representative referred to credibility concerns raised at the EI and contended that the discrepancies are not significant and account should be taken of the applicant’s limited education of [number of] years.

30. During a Protection Interview (PI) in November 2013, the applicant elaborated on his claims.  The applicant confirmed that neither he nor any member of his family has had any involvement in the LTTE. 

31. The delegate had concerns about inconsistencies including those related to the calls received and as such did not accept that the applicant received threatening calls in May 2012.  The delegate, however, accepted: that the applicant is a Hindu of Tamil ethnicity from [City 1] in the Eastern Province; that he had a [business]; that he was detained for three days in [City 1] in 1996; that he was arrested [in] Colombo in June 2007; that he was held for two months; that he was robbed in April 2011 by a member of the Sri Lankan military (but found that this was a crime of opportunity); that he has not been questioned by the authorities about suspected affiliation with the LTTE since his release in 2007; and that he left Sri Lanka illegally.  In conclusion, the delegate was not satisfied that the  applicant has a profile that would mean that he faces a real chance or a real risk of serious or significant harm if he returns to Sri Lanka.

32. On review, the previous Member did not accept that the applicant was a credible, truthful or reliable witness.  The Member had a number of concerns, including how the applicant managed to avoid paying bribes and extortion to the authorities for 11 years, as well as inconsistencies in the evidence.  The Member found that the applicant had never suffered the harm claimed or that he left Sri Lanka for the reasons claimed.

33. On appeal, in [deleted][2], the Court considered the Tribunal’s reasoning in relation to the conditions and circumstances surrounding the possibility that the applicant could be remanded on his return to Sri Lanka.  Relevantly, the Court held that:

    The materiality of the length of the applicant’s potential detention cannot therefore be doubted and so the availability of a family member to stand guarantor for the applicant’s release on his own recognisance, and apparently be a pre-condition for it, must be understood to have been similarly material.  That is to say, the length of the applicant’s postulated detention, and thus the risk that he would suffer significant harm, was dependent on the availability of a guarantor.  As the presumed availability of a guarantor was central to this issue it must be viewed as having been determinative of the issue concerning whether the applicant faced a real risk of significant harm in a Sri Lankan prison.  As such, it was an issue which engaged the operation of s.425(1) of the Act and was one which the Tribunal should have brought to the applicant’s attention so he could address the Tribunal’s presumption on this topic and possibly disabuse the Tribunal of it. 

    Because the Tribunal did not do that, its decision was made in excess of jurisdiction and is therefore affected by jurisdictional error.  A similar fact situation and outcome are to be found in Minister for Immigration & Border Protection v SZTQS (2015) 148 ALD 507[3]. 

    [2] [deleted].

    [3] [deleted], [15-16].

    Present review

34. In submissions dated 24 May 2020 and January 2023, the applicant relied on country information reports and reiterated that he continues to fear returning to Sri Lanka on the grounds of his Tamil ethnicity, being suspected of LTTE affiliation, being a failed asylum seeker, and for his membership of a particular social group, namely wealthy Tamil businessmen.  He further claimed that:

    ·On his return to Sri Lanka, the authorities would be aware of his identity and he would likely be questioned by officials at the airport and passed to the CID (Criminal Investigation Department) at the  airport.

    ·Multiple country reports show that Sri Lanka has been unsafe for Tamils.  There are reports of Tamil asylum seekers being victims of torture and rape by the Sri Lankan authorities. Entire communities have been stigmatised and targeted for harassment, arbitrary arrest and detention.  Individuals suspected of association, however indirect, with the LTTE remain at risk of detention and torture.

    ·In November 2017, the Associated Press reported rape and extreme and brutal torture of Tamils.  Surveillance of Tamils continues.  Corruption is rife in Sri Lanka. 

    ·He fears he would be subject to extortion by officials, police and the CID.  The motivation to extort is the same as it was in 2012.

35. In submissions dated 17 April 2023, the applicant referred to reports of the Sri Lankan authorities having committed arbitrary and unlawful killings and that corruption has remained a significant problem in Sri Lanka.  He referred to the Sri Lanka Human Rights Report of 2021[4], which noted that the government took minimal steps in dealing with human rights abuses and corruption.

    FINDINGS AND REASONS

    [4] US Department of State, Bureau of Democracy, Human rights and Labour, Country Reports on Human Rights Practices for 2021.

    Country of nationality

1. On the basis of the available information and for the purpose of this review, the Tribunal finds that the applicant is a national of Sri Lanka.  The applicant made no claim to be a national of any other country.  

2. The Tribunal finds that the claims should be assessed against Sri Lanka for the purposes of the Convention in s 36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s 36(2)(aa).

   Ethnicity and background

3. On the basis of the available information, the Tribunal is satisfied that the applicant is of Tamil ethnicity and from [City 1] (Eastern Province).

   Has the applicant suffered the claimed harm?

4. The applicant gave evidence that his family had been in the [business] for years and that he had his own business.  He stated that his business was involved in [details deleted].  The Tribunal asked the applicant about the business now and he stated that after his departure from Sri Lanka, his wife closed down the business.  The applicant gave evidence that if returned to Sri Lanka, he intends to re-establish the business but he fears that he would be subject to extortion.

5. In relation to the requests to pay the police during the period from 1996 to 2008, the applicant gave evidence that given the passing of time, he could not recall exact details, but confirmed that he had to give money as he feared harm.  He said in 1996, he was detained for three days in a dark room and in 2007, he was detained for two months.  In relation to the ‘motorbike’ incident, he stated that the motorbike belonged to his friend.  The Tribunal mentioned the earlier submission that it was a three wheeler and the applicant reiterated that he owned a three wheeler, but on that occasion, he had used his friend’s motorbike.

6. The applicant gave evidence that subsequently, members of the military group called his home and spoke to his wife.  He said his family lives in fear.

7. The Tribunal asked the applicant about his family.  He gave evidence that his parents are deceased.  His [children], [all] live with their mother in [City 1] and are studying.  He stated that he speaks to his family two to three times a week.  He stated that they live with worries and although his two sons have [Occupation 2 related] skills, they fear re-establishing the business due to potential extortion.

8. The Tribunal asked the applicant for his reasons for not wanting to return to Sri Lanka.  He stated that he fears he would face serious harm.  In oral submissions, the representative focussed on the extortion that the applicant could face if returned to Sri Lanka.

9. Given the length of time that has passed, the Tribunal considers it unreasonable to use lack of details, minor inconsistencies, and vagueness to reach an adverse credibility finding.  Moreover, the Tribunal observes that the applicant has been consistent throughout the process about the central aspects of his claims.  The Tribunal has also taken into account that the applicant suffers from physical and psychological issues.  During the hearing, the applicant came across as being forthcoming and the Tribunal did not get an impression that he was attempting to fabricate claims.

10. Looking at the claims singularly and cumulatively, the Tribunal is satisfied that the applicant has suffered the claimed harm.  For those reasons, the Tribunal accepts that the applicant and members of his family were [Occupation 2]s in Sri Lanka.  The Tribunal accepts that the applicant had his own business for a considerable length of time (over 10 years) and that he was perceived to be wealthy.  The Tribunal accepts that the applicant was detained for three days in [City 1] in 1996, that in June 2007 he was held for two months, that he was robbed in April 2011 by a member of the Sri Lankan military, that subsequently there were attempts to extort money from him, and that he left Sri Lanka illegally. 

    Is there a real chance or a real risk of the applicant suffering serious or significant harm?

11. The applicant does not claim that he is, or has ever been, an LTTE member, supporter or sympathiser but as well as his claims relating to being a wealthy businessman, the applicant is claiming that he would be harmed for being a Tamil from the Eastern Province, a failed asylum seeker, and for having departed illegally.

12. The Tribunal discussed with the applicant country information, including the most recent Department of Foreign Affairs and Trade (DFAT) report[5], and stated that on balance, country information indicates that being a failed asylum seeker, a returnee from a Western country, Tamil, and having departed unlawfully do not necessarily mean that there is a real risk or a real chance of suffering serious or significant harm. The Tribunal discussed with the applicant the Sri Lankan Immigrants & Emigrants Act (I&E Act) and noted that it is a law of general application, applied in a non-discriminatory manner and for legitimate purposes.  The applicant stated that there is a real chance that he would face extortion and would suffer harm, particularly as he would re-establish his [business]. 

    [5] Country Information Report: Sri Lanka, 23 December 2021.

    Independent country information

13. In accordance with Ministerial Direction No.84, the Tribunal has taken into account 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.

14. The Tribunal will now refer to country information relevant to the applicant’s claims.

    Overview

15. DFAT’s most recent Country Information Report on Sri Lanka[6] (the Report) provides the following summary:

    2.1 Sri Lanka, formerly Ceylon, achieved independence from the United Kingdom (UK) in 1948. Historically, relations between Sri Lanka’s majority Sinhalese and minority Tamil communities have been tense. Tamils received preferential treatment during British rule, including in education and civil service employment. After independence, successive Sinhalese-led governments introduced measures to promote the primacy of the Sinhalese community. These developments created a sense of marginalisation within the Tamil community and encouraged calls for an independent Tamil state, Tamil Eelam, in the predominantly Tamil-populated north and east of the country.

    2.2 A number of militant groups emerged to advance the cause of Tamil statehood. The most prominent of these, the Liberation Tigers of Tamil Eelam (LTTE, commonly known as the Tamil Tigers), formed in 1976 and launched an armed insurgency against the Sri Lankan state in 1983. Government forces re-took the north and east of the country from 2007-09, culminating in the military defeat of the LTTE in May 2009. The UN and human rights organisations documented serious violations in the final stages of the war when Mahinda Rajapaksa was President, during which up to 40,000 civilians may have been killed. In total, Sri Lanka’s 26-year civil war is estimated to have claimed 100,000 lives and displaced over 900,000 people. Civil society groups and NGOs have criticised the Rajapaksas for enabling and covering up alleged war crimes and atrocities against civilians.

    2.3 In 2015, Maithripala Sirisena, who defected from the Mahinda Rajapaksa Government to a rival political grouping, was elected President. Sirisena promised a new era of “clean” government, free of corruption, and embarked upon a path of reconciliation with the Tamil minority that appeared to make some progress. His government faced a constitutional crisis when he briefly appointed Mahinda Rajapaksa as his Prime Minister in a move that was not approved by parliament.

    2.4 On 21 April 2019, local Islamic extremist groups inspired by Daesh (also known as Islamic State), carried out coordinated terrorist attacks against Christian churches and hotels. The attacks, comprising suicide bombers, killed more than 250 people and injured another 490 — the deadliest bout of violence and the first known terrorist attacks in Sri Lanka since the end of the civil war in May 2009 (see 2019 Easter Sunday Terrorist Attacks).

    2.5 In November 2019, Gotabaya Rajapaksa was sworn in as Sri Lanka’s President, choosing his elder brother Mahinda Rajapaksa, a former two-term President, as his Prime Minister. The UN Office of the High Commissioner for Human Rights (OHCHR), in its report of January 2021, said: ‘Sri Lanka seemed to be on a new path towards advancing reconciliation, accountability and human rights. The developments since November 2019, however, have reversed that direction and, instead, threaten a return to patterns of discrimination and widespread violations of human rights experienced in past decades’ (see Political System).

    [6] Country Information Report: Sri Lanka, 23 December 2021.

    Tamils

16. In relation to Tamils, the Report noted:

    3.4 According to the most recent census (2012), Tamils are the second largest ethnic group in Sri Lanka (15.3 per cent of the population). Tamil political parties are active, with the largest coalition of parties operating under the umbrella of the Tamil National Alliance (TNA). In the 2020 parliamentary elections, the TNA won 10 seats (of a total 225) during the landslide victory of President Rajapaksa’s Sri Lanka People's Freedom Alliance (SLPFA). There are two Tamil parties in the Government’s ruling SLPFA coalition: the Tamil Makkal Viduthalai Pulikal (TMVP) (formerly known as the Karuna group), and the Eelam People's Democratic Party (EPDP), which have a combined total of three seats in the Sri Lankan Parliament. There is one Tamil cabinet minister as of November 2021: Minister for Fisheries, Douglas Devananda of the EPDP. This represents a decline in political influence for Tamils from the previous Sirisena Government.

    3.5 Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs, though other sources suggest this is because many Tamils speak neither Sinhala nor English. Even the Tamil-dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil-speaking police officers and military personnel in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities. In April 2021, Sri Lanka Police announced plans to recruit 2,000 Tamil speakers for the north and east, given that very few of the mostly Sinhalese officers (with around 700 police officers working in the Northern Province and 1,100 in the Eastern Province) speak fluent Tamil. All police basic training is reportedly conducted in Sinhala limiting accessibility to most Tamils.

    3.6 DFAT assesses there is no official discrimination on the basis of ethnicity in public sector employment. Rather, Tamils’ under-representation is largely the result of language constraints and disrupted education because of the war.

    3.7 DFAT is aware that some Sinhalese from the south have resettled in the north and east with government assistance in the post-war period. Local sources in the north expressed concern about the construction of Buddhist statues and temples in non-Buddhist populated areas. DFAT is unable to verify claims that Sinhalese settlers in the north and east have received preferential treatment to establish businesses.

    Monitoring, harassment, arrest and detention

    3.8 Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested or detained by security forces during the war. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner (see Liberation Tigers of Tamil Eelam).

    3.9 Members of the Tamil community and NGOs report that authorities continue to monitor public gatherings and protests in the north and east, and practise targeted surveillance and questioning of individuals and groups. Security forces are most likely to monitor people associated with politically-sensitive issues, including those related to the war, such as missing persons, land release and memorialisation events (see Civil society organisations and government critics and Media).

    3.10 Communities in the north and east report that monitoring is undertaken by military intelligence and the Police Criminal Investigation Department, though in many cases officers dress in plain clothes and do not identify themselves. According to local sources, those participating in public gatherings and protests are often photographed. In the east, local informants within the community (including neighbours and business owners) reportedly undertake monitoring on behalf of the authorities. Intelligence agencies also monitor links to foreign groups, including some in the Tamil diaspora (see Liberation Tigers of Tamil Eelam).

    3.11 LTTE cemeteries in the north and east were destroyed by government forces during and after the war. Some have subsequently been restored. It is illegal to commemorate the birthday of LTTE leader Prabhakaran (26 November), or Maaveerar Naal (‘Great Heroes’ Day’ in Tamil, 27 November), although some Tamils are known to defy this ban. The public display of LTTE symbols, including the LTTE flag and images of Prabhakaran, is also banned.

    3.12 Tamils have been arrested in 2021 under the Prevention of Terrorism Act (PTA) for commemoration of the war (see Prevention of Terrorism Act). In May 2021, on the eve of commemoration of the end of the civil war in Mullaithivu district, the location at which various estimates suggest up to 40,000 civilians died in the closing phase of the war, authorities placed the district under strict COVID-19 quarantine isolation. According to local sources, Tamils who tried to commemorate the day were harassed or arrested by police. For example, 10 Tamils including two women were detained from 19 May 2021 until at least late July for holding a socially-distanced candle-lit vigil on a beach in Batticaloa, Eastern Province. On 19 May 2021, the Government of Sri Lanka, including President Rajapkasa, celebrated the same occasion as War Heroes Day. DFAT Country Information Report Sri Lanka (December 2021) 20

    3.13 DFAT assesses that surveillance of Tamils in the north and east continues, with particular surveillance of those associated with politically-sensitive issues. DFAT also assesses that physical violence against those being monitored is not common, and that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment.

    Political opinion

17. In relation to political opinion, actual or imputed, and the LTTE, the Report[7] states:

    [7] Country Information Report: Sri Lanka, 23 December 2021.

    3.38 Sri Lanka has held regular democratic elections since independence. Large-scale violence and vote rigging have never been features of elections, but nor have elections always been described as entirely free and fair. DFAT assesses that political parties are able to operate freely across Sri Lanka and contest elections. There are no constitutional, legal or other restrictions preventing minorities from participating in politics. Sri Lanka has a diverse political landscape, with 70 registered political parties representing ethnic, religious and ideological interests. Political representation in parliament of each ethnicity is broadly proportional to the ethnic make-up of the overall population. The current parliament includes 27 Tamils and 19 Muslims among its 225 members. There is a single Muslim and Tamil respectively in the current cabinet, with another two Tamil state ministers.

    Liberation Tigers of Tamil Eelam (LTTE)

    3.39 At its peak in 2004, the LTTE had an armed force of approximately 18,000 combatants. The LTTE was proscribed as a terrorist organisation by a number of countries, including Australia. It was supported by foreign funding, primarily from the Tamil diaspora, and both voluntary and forced recruitment of Tamils. Funding from the Tamil diaspora was sometimes attained through means of intimidation and coercion, including threats against local family members and kidnapping for ransom. Within Tamil Eelam, the LTTE imposed its authority in a brutal fashion, reportedly murdering Tamil rivals and critics.

    3.40 Towards the end of the war, in 2009, government security forces arrested and detained a large number of LTTE members. Most were sent to government-run rehabilitation centres. A smaller number were prosecuted through Sri Lanka’s court system. Security forces also questioned or monitored many civilians for possible LTTE activity, and for civil resistance or anti-government sentiment. Although not officially mandated, in many areas the military took a visible and active role in civilian life. The previous Sirisena Government publicly committed to reducing military involvement in civilian activities, but observers have expressed concern that this has reversed and the military’s role is growing again.

    3.41 While the LTTE was comprehensively defeated, Sri Lankan authorities remain concerned over its potential re-emergence, and to separatist tendencies in general. Sources report that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members, supporters and other separatists, including ‘stop’ and ‘watch’ electronic databases. DFAT understands these databases remain active. ‘Stop’ lists include names of those individuals who have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals whom the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities.

    3.42 Former LTTE members face no legal barriers to participating in public life, including politics. In the August 2015 parliamentary elections, the TNA did not allow ex-LTTE members to run on their ticket, but ex-combatants established the Crusaders for Democracy party and ran for election. While the party did not win any seats, its participation demonstrated the relative openness of the electoral process. The party did not contest the 2020 parliamentary elections.

    3.43 The LTTE has not carried out any attacks since 2009; however, individuals linked to the LTTE have been involved in what are alleged to be thwarted attacks. DFAT assesses that the LTTE no longer exists as an organised force inside Sri Lanka, and any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans. Local sources told DFAT that the Tamil community had abandoned militancy and was committed to addressing its grievances through political means.

    3.44 The International Truth and Justice Project (ITJP), an NGO which documents torture and sexual violence by the security forces in Sri Lanka, claims that, while ex-LTTE cadres exist, they are no longer affiliated in any way with an extant LTTE, and are subject to harassment and discrimination by the Government. The Sri Lankan Government may not accept that the LTTE is finished, arresting several Tamils in 2021 under the Prevention of Terrorism Act (PTA) for alleged LTTE-supportive behaviour (see Prevention of Terrorism Act). In July 2021, a Tamil man was deported from Qatar to Sri Lanka at the request of Counter-Terrorism Investigation Department (CTID) for allegedly promoting the LTTE. In its May 2021 decision on the refugee status of Tamil activists in the UK, the UK Upper Tribunal found that the present Government of Sri Lanka was possessed of a ‘determination to prevent any form of resurgent separatism’.

    …

    High-profile former LTTE members

    3.47 ‘High-profile’ former LTTE members are individuals who held senior positions in the LTTE’s military wing and civilian administration. The LTTE’s former leadership face the highest risk of monitoring, arrest, detention or prosecution, regardless of whether they performed a combat or civilian role during the war. Although most of the LTTE’s leadership died during the war, a number surrendered or were captured and sent to rehabilitation centres or prosecuted/detained. Some former leaders may have left Sri Lanka before, during or after the war (see Former LTTE members living outside Sri Lanka). Others considered ‘high-profile’ include individuals suspected of terrorist or serious criminal offences during the war, or of providing weapons or explosives to the LTTE. Other former leaders, such as Karuna Amman (previously a leader of the TMVP, now a member of the Sri Lankan Freedom Party (SLFP), part of the President’s ruling coalition), defected and are allied with the Government.

    3.48 DFAT assesses that the number of high-profile former LTTE members living in Sri Lanka is small and that the vast majority would already have come to the attention of the authorities. DFAT also assesses that any remaining high-profile former LTTE members who came to the attention of the authorities would likely be arrested, detained and prosecuted through Sri Lanka’s criminal courts and, once they had their prison sentences, be subjected to some form of rehabilitation. The average judicial process in Sri Lanka, including appeal, is protracted (see Judiciary). High-profile former LTTE members would likely continue to be monitored by the Sri Lankan authorities following their release from prison and completion of any rehabilitation process.

    Low-profile former LTTE members

    3.49 ‘Low-profile’ former LTTE members include former combatants, those employed in administrative or other roles, and those who may have provided a high level of non-military support to the LTTE during the war. DFAT assesses that, although the great majority of low-profile former LTTE members have been released following their rehabilitation, any low-profile former LTTE members who came to the attention of the Sri Lankan authorities now, particularly if suspected of having a combat function during the war, would likely be detained and may be sent for rehabilitation. Following their release from rehabilitation, a low profile former LTTE member might be monitored but would generally not be prosecute.

    The PTA

1. In relation to the PTA, DFAT reported:[8]

   The Prevention of Terrorism Act (PTA)

   4.20 The PTA was enacted as a temporary measure in 1979 to counter separatist insurgencies. It was made permanent in 1982 and remains legally in force. The PTA is not part of regular criminal law and contains special provisions on detention and the admissibility of confessions. The PTA allows arrests for unspecified ‘unlawful activities’, permits detention for up to 18 months without charge and provides that confessions are legally admissible. Prior to the 2019 Easter Sunday terrorist attacks, the PTA was used mainly to target those suspected of involvement with the LTTE. It was used only sporadically between 2016 and April 2019 following the then-government’s commitment to repeal and replace the PTA under HRC Resolution 30/1 (2015). During the civil war, authorities detained more Tamils under the PTA than any other ethnic group. The PTA has been used for many years to detain people in prolonged and often arbitrary detention. According to the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, in his 2017 report, 70 people had been in detention without trial for over five years and 12 had been in detention without trial for over 10 years. According to the HRCSL, as of 31 January 2018, about 15 per cent of PTA suspects had been in detention for 10 to 15 years, and about 41 per cent had been in detention for five to 10 years. As of 2021, many of these detainees are still being held.

   4.21 DFAT is not able to verify the precise number of individuals currently held under the PTA. One local source estimated that 300 Muslims and 60 Tamils are being held under this legislation. A large number of Muslims were detained under the PTA following the 2019 Easter Sunday terrorist attacks. In 2021, the Sri Lankan police were still arresting Muslims in connection to the bombing. For example, in April 2021, opposition MP Rishad Bathiudeen and his brother Riyadh were arrested by CID for allegedly assisting the terrorists responsible for the 2019 Easter Sunday terrorist attacks. The brothers have claimed the arrest was political. The Government has not explained the nature of their alleged connection to the bombing. The brothers have since been released on strict conditions of bail.

   4.22 The Government has used the PTA for purposes with arguably limited connection to terrorism. In May 2020, police arrested Ahnaf Jazeem, a 26-year-old teacher and Tamil poet, based on allegations that his poetry collection promoted ‘religious extremism’. In December 2021, Jazeem was charged under the PTA and released on bail. Human rights observers have reported other cases with respect to Muslims, including: Hejaaz Hizbullah, a Muslim human rights lawyer in custody since 14 April 2020 and eventually charged with an offence under the International Covenant on Civil and Political Rights (ICCPR) Act; and Ramzy Razeek, a retired government official, detained in April 2020 for posting on Facebook about religious extremism.

   4.23 The PTA has also recently been used against Tamils. Media reported a Tamil man was arrested by Eravur police in April 2021 for allegedly sharing a photo of LTTE leader Prabhakaran, while Jaffna Mayor, V. Mannivannan, was arrested by TID in April 2021 under accusations of attempting to resurrect the LTTE, allegedly because the choice of uniforms for a municipal environmental enforcement team resembled those of the LTTE. DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA.

   4.24 In 2015, President Sirisena committed to repeal and replace the PTA with improved counter terrorism legislation. This proposal, which was criticised by some human rights defenders as being as bad or even worse than the PTA, lapsed with that Government. In June 2021, the European Parliament adopted a resolution urging the EU Commission to consider temporary withdrawal of the Generalized System of Preferences preferential trade agreement from Sri Lanka, if it did not reform the PTA. In its response the Sri Lankan Ministry of Foreign Affairs rejected the claim that detention under the PTA had resulted in arbitrary detention but nevertheless promised to ‘revisit’ provisions of the Act to propose ‘necessary amendments’.

   4.25 In March 2021, the Government added ‘de-radicalisation regulations’ to the PTA which allow for arbitrary administrative detention of individuals for up to two years without trial. The Government also proscribed 300 Tamil and Muslim groups and individuals allegedly ‘linked to terrorism.’ On 5 August 2021, the Supreme Court, in response to Fundamental Rights Petitions filed by several activists, issued an Interim Order suspending the operation of Prevention of Terrorism (De-radicalization from holding violent extremist religious ideology) Regulations No. 01 of 2021. These petitioners argued that individuals arrested under these new regulations could be subject to potentially indefinite detention under the guise of rehabilitation, without judicial review. A court hearing of the matter remains stalled at the time of publication.

   4.26 In September 2021, during the UN Human Rights Council Session, the Sri Lankan Government announced a Cabinet sub-committee had been convened in June to ‘review’ the PTA within three months. Its report was not available at the time of publication, however, according to media reports, the committee presented its report to the President on 15 November 2021.

   [8] Country Information Report: Sri Lanka, 23 December 2021.

   Returnees, exit and entry procedures

2. DFAT reported:[9]

   [9] Country Information Report: Sri Lanka, 23 December 2021.

   5.17 Unsuccessful asylum seekers, both those subject to removal or departing voluntarily, are returned to Sri Lanka either using commercial or charter flights. In some cases, they may be accompanied by security escorts. On arrival in Colombo, returnees will be presented to Sri Lankan Immigration where they will be interviewed by the Chief Immigration Officer. Depending on the circumstances of their departure from Sri Lanka and their personal history, they may be interviewed by other agencies including CID, Sri Lankan State Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI). These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Those who have departed illegally will be referred to CID at the airport and charged accordingly. Once charged they are taken to the courts at Negombo where they are bailed and released.

   5.18 DFAT is not aware of returnees in 2021 being detained for matters other than illegal departure (such as, for former membership of the LTTE). However, due to COVID-19, returnees have been returned to Sri Lanka in smaller numbers overall than in previous years. According to the IOM, in 2021 up to September, there had been 107 returnees, 19 of these from Australia. Local sources also report that Tamils overseas are much less likely to return voluntarily to Sri Lanka under the current Government.

   5.19 The IOM meets Australian-assisted voluntary returnees (i.e. not deportees) after immigration clearance at the airport and provides some cash and onward transportation assistance, along with legal assistance provided by the Sri Lankan Legal Aid Commission for those charged with illegal departure. Prior to departure from Australia, Australian Border Force provides removed returnees with cash to assist their return.

   5.20 For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.

   Offences under the Immigrants and Emigrants Act

   5.21 The Immigrants and Emigrants Act (1948) (the I&E Act) governs exit from and entry to Sri Lanka. Returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the I&E Act. Sections 34 and 35 (a) of the I&E Act make it an offence, respectively, to depart Sri Lanka other than via an approved port of departure, such as a seaport or airport, and/or without a valid passport. Returnees who departed Sri Lanka legally are not required to face a court, as no offence under the I&E Act applies. Sri Lanka has a mature people smuggling industry. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine, though DFAT is unaware of a prison sentence being given for illegal departure by itself. Facilitators or organisers of people smuggling ventures, including captains and their crew, are charged with more serious offences and typically refused bail.

   5.22 Those charged are required to appear in court in the location where the matter was first heard, reportedly Negombo Courts, near the airport, which involves legal and transport costs. While the frequency of court appearances depends on the magistrate, DFAT understands that most individuals charged under the I&E Act appear in court every 3-6 months, regardless of their plea, for bail hearings. In addition to their own court hearings, those charged may be summonsed as witnesses in cases against the facilitators or organisers of people smuggling ventures. The cases of those charged with illegal departure may take years to resolve, requiring on-going court appearances (and illegal departees have no reasonable prospect of a defence). It is unclear to DFAT why such cases take so long. One source suggested that cases are taken forward in court only when all members of a people smuggling venture have been located; while another local source suggested it was simply due to the workings of the Sri Lankan justice system. For many returnees, this means they are subject to the slow processes of the Sri Lankan legal system; some returnees told DFAT that it was difficult and stressful having to return periodically to Colombo for a further hearing in a case where they were uncertain of the outcome.

   5.23 While those convicted of the offence of illegal departure may theoretically face a custodial sentence, in practice, local sources suggest, a fine is always imposed and typically this fine is LKR 50,000 - 200,000 (AUD350-1400). Sources suggest those who are unable to pay the fine are permitted to pay in instalments but, if still unable, may be imprisoned for 14 days.

   5.24 The severity of the fine for those charged under the I&E Act does not necessarily increase for those who have departed Sri Lanka illegally on more than one occasion. DFAT notes that, while the fines issued for passengers of people smuggling ventures are often low, the cumulative costs associated with regular court appearances over protracted lengths of time can be high. Anecdotal evidence suggests there is an acceptance within the Tamil community that illegal maritime ventures to Australia in search of asylum would be futile at this point in time.

   5.25 The minimum age of criminal responsibility in Sri Lanka is 12 years. Under Sri Lankan law, anybody over the age of 12 at the time of their alleged offence is treated as an adult. Children over the age of 12 can therefore be charged with breaking the I&E Act, so long as they were 12 or older at the time of the alleged offence. No charges are imposed against children under 12 years of age or those persons who were younger than 12 at the time of the alleged offence.

   5.26 DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure.

   Conditions for Returnees

   5.27 Between 2010-11 and 2018-19, 3,716 Sri Lankan nationals returned from the Australian community or were removed from Australian onshore immigration detention centres to their country of origin or a third country. Between 2002 and September 2021, the IOM has facilitated the return of 876 Sri Lankans from Australia. Many others returned from the US, Canada, the UK and other European countries. Most returnees are Tamil. Although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin and they have existing family links, or because of the relatively lower cost of living compared to the south.

   5.28 Refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. Most returnees have incurred significant expenses or debt to undertake their outward journey. Some voluntary returnees receive reintegration assistance in the form of transport and livelihood support upon return to Sri Lanka from the Government, UN agencies and NGOs, but this requires a returnee to meet strict eligibility guidelines and is minimal. Failed asylum seekers receive limited reintegration assistance. Many returnees have difficulty finding suitable employment and reliable housing on return. Those who have skills that are in high demand in the labour market are best placed to find well-paid employment. The IOM provides eligible returnees with livelihood assistance and makes regular visits to monitor the welfare of returnees.

   5.29 Multiple local sources said that some returnees, especially those in the north and east with suspected LTTE links, have been the subject of monitoring by the authorities, involving visits to returnees’ homes and telephone calls by the CID. DFAT understands that most returnees, including failed asylum seekers, are not actively monitored on an ongoing or long-term basis. DFAT is unable to verify whether monitoring, where it occurs, is specific to former LTTE cadres. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had no protection concerns and had not experienced harassment by the authorities, nor received monitoring visits, but DFAT cannot determine if this is the case for all such returnees.

   5.30 Bureaucratic inefficiencies present a significant challenge to reintegration for returnees. Refugee returnees, particularly those who returned without UNHCR or IOM facilitation, can experience delays in obtaining necessary identification documents and proof of citizenship. Lack of documentation inhibits access to social welfare schemes and the ability to open bank accounts, find employment or enrol in educational institutions. Limited job availability in the north and east further contributes to difficulties in securing employment and housing. DFAT assesses that reintegration issues are not due to failure to obtain asylum, but rather due to the employment and accommodation difficulties returnees may face. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they were able to reintegrate into their communities and find employment. DFAT understands that returnees may face financial difficulties reintegrating into their communities, including due to sale of their belongings to fund irregular ventures overseas, but do not experience societal discrimination for seeking asylum elsewhere.

   5.31 Some refugees and failed asylum seekers reported being pressured upon return to their communities, chiefly for being beneficiaries of financial reintegration assistance. Others experienced resentment upon return because they spent family funds on what proved to be a futile attempt at irregular migration. Overall, DFAT understands that societal discrimination is not a major concern for returnees, including failed asylum seekers. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had not experienced significant societal discrimination following their return.

   5.32 DFAT assesses that returnees face a low risk of societal discrimination upon return to their communities. DFAT further assesses that, where it occurs, surveillance of returnees can contribute to a sense of mistrust of returnees within communities.

   Prison conditions in Sri Lanka

3. DFAT[10] reported that:

   5.10 In general, prison conditions in Sri Lanka do not meet international standards, including due to old infrastructure, overcrowding, and a shortage of adequate health and sanitary facilities. The HRCSL in its study of prisons in 2020 found that the ‘treatment and detention conditions of prisoners fall far below the threshold of basic living standards’. The US Department of State reported in 2018 that only some of the larger prisons had hospitals, and that prisoners requiring medical care in smaller prisons were typically transferred to the nearest local hospital. Some facilities reportedly do not segregate juveniles and adults, or remand and convicted detainees. In many prisons, inmates reportedly slept on concrete floors, and prisons often lacked natural light or sufficient ventilation.

   5.11 Overcrowding in Sri Lankan prisons is a major issue. According to official statistics, in 2020, the number of prisoners (approximately 90,000 prisoners on remand and 19,900 convicted detainees) DFAT Country Information Report Sri Lanka (December 2021) 46 exceeded prison capacity by nearly 64 per cent. Over half of the prison population is estimated to be awaiting trial. Remand detention typically lasts years and is considered as part of the final sentence at the discretion of judges. According to the HRCSL, the overcrowding of prisons is also impacted by the large number of convicted prisoners imprisoned due to the inability to pay fines and the non-payment of debt and maintenance payments.

   5.12 The International Committee of the Red Cross (ICRC) has the right to access to all places of detention and all categories of detainees in Sri Lanka, including those held under the PTA and those undergoing rehabilitation for drug-related offences. The ICRC receives notification of arrest but, given resource constraints, can take some time to visit detainees to assess their welfare. The HRCSL also has the right to access a number of places of detention without restrictions from the authorities, including for unannounced visits. The Government continued to allow the ICRC and the HRCSL full access to prisons in 2020. In addition to the ICRC and the HRCSL, the Board of Prison Visitors, an internal governmental watchdog, examines detention conditions. The Board conducts regular visits to prisoners and accepts complaints as a part of its mandate.

   [10] Country Information Report: Sri Lanka, 23 December 2021.

   Reports from other sources

4. There are reports of increased mistreatment, monitoring and harassment of Tamils in the north and east after the November 2019 presidential election, which continued with the change of government in July 2022. Reports of monitoring, surveillance, intimidation and harassment of Tamils in day-to-day life by security forces in the north and east of the country increased after the election of Gotabaya Rajapaksa as president in November 2019.[11]

   [11] 'Jailing Activists and Pardoning Murderers: Monitoring Ten Issues of Concern in Sri Lanka in 2021', Sri Lanka Campaign for Peace and Justice, February 2022, p.19, 20220218122156; 'Report of a Home Office fact-finding mission to Sri Lanka', UK Home Office, 20 January 2020, pp.11, 49, 20200123162928; 'Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka', OHCHR, 18 February 2020, p.7.

5. In September 2022, the UN Office of the High Commissioner for Human Rights (OHCHR) said it continues to receive reports of surveillance, intimidation and harassment of various groups in the north and east, including journalists, human rights defenders, families of the disappeared and persons involved in memorialisation initiatives.[12] There have been reports of assaults, arrests and the alleged torture of Tamil civilians.[13] In one reported case in 2021, this resulted in the death of a Tamil civilian in police custody.[14]

   [12] 'Situation of human rights in Sri Lanka: Comprehensive Report of the United Nations High Commissioner for Human Rights A/HRC/51/5', United Nations Human Rights Council, 06 September 2022, p.7.

   [13] 'Tamil man hospitalised following assault by Sri Lankan military aligned thugs over Mullivaikkal commemoration', Tamil Guardian, 22 May 2022, 20220524115440; 'Country Reports on Human Rights Practices for 2021 Sri Lanka', United States Department of State, 12 April 2022, p.3; 'Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights', United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, pp.7-8; 'Sri Lanka: End the use of and repeal the draconian PTA', Amnesty International, 17 February 2022, p.5; 'Sri Lanka military’s latest assault weapon: Barbed wire wrapped palm frond', Journalists for Democracy in Sri Lanka, 25 January 2022; 'Sri Lanka: Torture and Sexual Violence by Security Forces 2020-2021', Yasmin Sooka and Frances Harrison, International Truth and Justice Project, September 2021, pp.24-27; 'Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association', United Nations Human Rights Council, 05 May 2020, p.13; 'Repression of Dissent in Sri Lanka: 1 st - 31st May 2020', INFORM Human Rights Documentation Centre, 29 June 2020, p.10; 'Report of a Home Office fact-finding mission to Sri Lanka', UK Home Office, 20 January 2020, pp.11,49; 'Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka', OHCHR, 18 February 2020, p.7; 'Tamil youth hospitalised following Sri Lankan army assault in Mannar', Tamil Guardian, 25 August; 'Sri Lankan police arrest ten Tamils in Jaffna', Tamil Guardian, 11 August 2020; 'Falsely arrested and tortured disabled Tamil man submits complaint at Human Rights Commission', Tamil Guardian, 03 June 2020.

   [14] ‘Jailing Activists and Pardoning Murderers: Monitoring Ten Issues of Concern in Sri Lanka in 2021', Sri Lanka Campaign for Peace and Justice, February 2022, p.31, 20220218122156; 'Sri Lanka: Torture and Sexual Violence by Security Forces 2020-2021', Yasmin Sooka and Frances Harrison, International Truth and Justice Project, September 2021, p.33; 'Tamil youth was 'tied to a tree' and attacked before being 'beaten to death'', Tamil Guardian, 05 June 2021; 'Tamil youth beaten to death by Sri Lankan Intelligence officials', Tamil Guardian, 03 June 2021.

1. In January 2022, a Tamil fisherman and activist who had campaigned against military encroachment in the north was found dead; local politicians and community members in Jaffna alleged he was murdered by the Sri Lankan Navy and called for an inquiry.[15] Tamils with certain profiles, such as political activists and journalists, are more likely to attract the attention of authorities.

   [15] 'Sri Lanka: Family seeks impartial investigation into killing of Tamil fisherman', Journalists for Democracy in Sri Lanka, 14 January 2022; 'Anger in Jaffna after leading Tamil protestor killed by Sri Lankan navy', Tamil Guardian, 12 January 2022.

2. Civil society groups report ongoing harassment and intimidation of family members of individuals who disappeared during the war.[16] Individuals and groups seeking to commemorate the end of the war and fallen LTTE combatants have experienced security forces surveillance, have been stopped from marking these occasions, and in some instances have been arrested, including under the PTA.[17]

   [16] 'Situation of human rights in Sri Lanka: Comprehensive Report of the United Nations High Commissioner for Human Rights A/HRC/51/5', United Nations Human Rights Council, 06 September 2022, pp.7, 9; 'Human Rights in Sri Lanka in 2021', Sri Lanka Campaign for Peace and Justice, 21 December 2021, 20211222090819; 'Heeding Victims’ Voices: The Struggle of Tamil Families of the Disappeared in Sri Lanka', Dharsha Jegatheeswaran, Just Security, 03 March 2021.

   [17] 'Jailing Activists and Pardoning Murderers: Monitoring Ten Issues of Concern in Sri Lanka in 2021', Sri Lanka Campaign for Peace and Justice, February 2022, p.27; 'Sri Lanka: Torture and Sexual Violence by Security Forces 2020-2021', Yasmin Sooka and Frances Harrison, International Truth and Justice Project, September 2021, p.32, 23; 'Sri Lanka army soldiers attack Tamil journalist covering commemoration for civil war dead', Committee to Protect Journalists (CPJ), New York, 02 December 2021; 'Sri Lankan security forces block Sencholai massacre commemoration in Mullaitivu', Tamil Guardian, 14 August 2021; 'Sri Lankan troops break up Tamil remembrance of civil war dead', Aljazeera, 29 November 2021.

3. While authorities lifted a ban on several Tamil organisations and individuals in August 2022, many Tamil individuals and Tamil organisations, including several diaspora organisations, remain proscribed.[18]

   [18] 'Amendment to the List of Designated Persons under Regulation 4(7) of the United Nations Regulations No. 1 of 201', The Gazette of the Democratic Socialist Republic of Sri Lanka, 01 August 2022; 'Procedure for blacklisting and delisting of persons and organisations under UNSC 1373', Daily News, 18 August 2022; 'De-proscribed Tamil units funded terrorism earlier, says Defence Ministry', The Morning, 17 August 2022; 'Ban on Tamil diaspora units lifted', The Morning, 15 August 2022; 'Selfish and cynical – Sri Lanka lifts ban on some Tamils but many more remain banned', Tamil Guardian, 17 August 2022; 'UN High Commissioner raises concerns of harassment of Tamils and Muslims in Sri Lanka', Tamil Guardian, 21 June 2021; 'Tamil organisations speak out against Sri Lanka's ban', Tamil Guardian, 04 April 2021.

4. Tamil political parties are generally able to operate freely and contest elections, although there have been increasing reports of the monitoring and harassment of hard-line parties. The TNA remains the largest single Tamil party, but saw its share of seats drop from 16 in the last parliament to 10.[19] In general, there have been few reports of political violence against party members in recent years.[20]

   [19] 'Non-career lawmakers secure political authority', Daily Mirror (Sri Lanka), 13 August 2020.

   [20] 'Sri Lankan police attack Tamils in Jaffna as frustration mounts over recount', Tamil Guardian, 06 August 2020; 'Internal strife within ITAK takes disturbing turn', Daily Mirror (Sri Lanka), 29 August 2020.

5. Information indicates that persons advocating for Tamil separatism may attract the attention of Sri Lankan authorities. Available sources indicate that those who hold a ‘significant role’ in Tamil separatist activities, such as through holding leadership positions in Tamil diaspora groups, those deemed to hold radical views, those formerly part of the LTTE, those in high-profile roles, those suspected of raising funds for the LTTE during the war, and those who actively advocate for Tamil statehood would likely be of particular interest to the Sri Lankan authorities.[21]

   [21] 'KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT', Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, pp.119-120.

6. In relation to the PTA, there are reports that it has been used to arrest hundreds of mostly Muslim Sri Lankans as part of investigations into the 2019 Easter Sunday bombings, although most have now been released. Prior to the Easter Sunday bombings, government statistics indicated that the majority of individuals held under the PTA were Tamils detained in many cases for years in connection with serious security offences.[22] Government data indicate that, as of 2 December 2021, 333 people were detained under the PTA, of whom 16 were convicted, 11 were under appeal and the remaining were detained as suspects.[23] The Sri Lankan government passed a bill to amend the PTA in March 2022, which critics said was ineffective and did not adequately address human rights concerns. Critics, including the UNHCHR and civil society groups, said the amendments failed to address aspects of the PTA which have enabled human rights abuses and the targeting of minorities, critics and journalists.[24]

   [22] 'Sri Lankan Minister claims all pending pre-2016 PTA cases ‘to be concluded in next three months'', Tamil Guardian, 15 August 2021; ‘UN Special Rapporteur (Ben Emmerson) on human rights and terrorism in Sri Lanka’, Australian Department of Foreign Affairs and Trade, 14 August 2017, p.2; ‘PTA suspended pending passage of new Counter Terrorism Law’, The Island, 8 February 2017; ‘Human rights and counter terrorism: UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism concludes visit to Sri Lanka, Preliminary findings of the visit to Sri Lanka’, Office of the United Nations High Commissioner for Human Rights, 14 July 2017; ‘Locked up without evidence: Abuses under Sri Lanka’s Prevention of Terrorism Act’, Human Rights Watch, 29 January 2018, p.5; ‘Report of the Working Group on Arbitrary Detention on its visit to Sri Lanka’, UN Human Rights Council, 23 July 2018, p.7; ‘Police arrest 2289 over Easter Sunday terror attacks – Police Spokesman SP Ruwan Gunasekara’, The Sunday Reader, 3 June 2019; ‘Over 2,280 suspected arrested since Easter Sunday terror attacks’, Daily News, 5 June 2019; ‘Brother of Suicide Bomber Arrested’, Daily News, 10 May 2019; ‘Govt urged to review ‘security reforms’ as 60 suspects taken in under PTA’, The Island, 25 April 2019; 'Official list of detainees under PTA', Ceylon Today, 30 July 2017; 'Promotion reconciliation, accountability and human rights in Sri Lanka: Report of the Office of the High Commissioner for Human Rights ', OHCHR, 27 January 2021, p.13.

   [23] 'Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights', United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.10.

   [24] ‘Civil Society statement on proposed amendments to Prevention of Terrorism Act', Daily FT, 08 February 2022.

   Tamil ethnicity

7. The Tribunal accepts that the applicant is a Tamil from the Eastern Province. The Tribunal accepts country information that there is a level of mistreatment, monitoring and harassment of Tamils in the north and east which increased after the November 2019 presidential election, and continued with the change of government in July 2022. The Tribunal observes DFAT’s assessment that “surveillance of Tamils in the north and east continues, with particular surveillance of those associated with politically-sensitive issues. DFAT also assesses that physical violence against those being monitored is not common, and that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment”.[25]

   [25] Country Information Report: Sri Lanka, 23 December 2021, para 3.13.

8. Whilst the Tribunal acknowledges that Tamils continue to face a degree of discrimination and ill-treatment in Sri Lanka, on balance and on the basis of the available information, the Tribunal is not satisfied that being Tamil without more means that the applicant would face harm amounting to serious or significant harm, or that he would be suspected of being associated with the LTTE merely on the basis of being a Tamil. A fair appraisal of independent country information essentially indicates that individuals who can be targeted are those who have actual or perceived strong LTTE links, are LTTE sympathisers or who have a significant political profile.

   Failed asylum seeker, the I&E Act, and the PTA

9. The Tribunal accepts country information that unsuccessful asylum seekers are presented to the Sri Lankan Department of Immigration and Emigration and are interviewed by the Chief Immigration Officer and possibly by other agencies including the CID, the SIS and the SLNI. Those agencies check travel documents and identity information and those who departed illegally are referred to the CID at the airport and charged accordingly. Once charged they are taken to the courts at Negombo where they are bailed and released. DFAT[26] noted that it was not aware of returnees in 2021 being detained for matters other than illegal departure (such as, for former membership of the LTTE).

   [26] Country Information Report: Sri Lanka, 23 December 2021, para 5.18.

10. In relation to the I&E Act, the Tribunal accepts that returnees who departed Sri Lanka irregularly are considered to have committed an offence under the I&E Act. The Tribunal observes that ss 34 and 35 (a) of the I&E Act make it an offence to depart Sri Lanka other than via an approved port of departure and/or without a valid passport. As referred to earlier, DFAT reported that penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine, though DFAT was unaware of a prison sentence being given for illegal departure by itself. DFAT noted that while those convicted of the offence of illegal departure may theoretically face a custodial sentence, in practice, local sources suggest a fine is always imposed and typically this fine is LKR 50,000 to 200,000 (AUD350 to 1,400).[27] DFAT noted that sources suggest those who are unable to pay the fine are permitted to pay in instalments but, if still unable, may be imprisoned for 14 days.[28]

    [27]Country Information Report: Sri Lanka, 23 December 2021, para 5.23.

    [28]Country Information Report: Sri Lanka, 23 December 2021.

11. Regarding the PTA, the Tribunal notes that although the PTA has been used against Tamils, this appears to be related to those who are perceived to have some adverse profile. In any case, DFAT reported that “DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA”.[29]

    [29] Country Information Report: Sri Lanka, 23 December 2021, para 4.23.

12. For the above stated reasons, the Tribunal has accepted that the applicant has suffered the claimed harm.  The Tribunal has accepted that the applicant and members of his family were [Occupation 2]s in Sri Lanka and that the applicant had his own business for over 10 years and that he was perceived to be wealthy.  The Tribunal has accepted that the applicant was detained for three days in [City 1] in 1996, that in June 2007 he was held for two months, that he was robbed in April 2011 by a member of the Sri Lankan military, and that subsequently there were attempts to extort money from him.  The Tribunal has accepted the applicant’s evidence that he was subject to extortion and that if returned to Sri Lanka, he would re-establish his [business].

13. Making an assessment about whether there is a real chance of serious harm in the future is not a straightforward process.  If one were to restrict their analysis to each claim made in isolation, this could lead to an erroneous finding.  As observed by Kirby J in MIEA v Wu Shan Liang[30], the question of well-founded fear is to be determined on the evidence as a whole. 

    [30] MIEA v Wu Shan Liang [1996] HCA 6 at [26].

14. DFAT reported that in 2020, “the World Bank classified Sri Lanka as a lower middle-income country, downgrading it from upper middle income status. Amid the COVID-19 pandemic, its Gross Domestic Product (GDP) has reduced by 3.6 percentage points. While government health measures helped contain the impact of the pandemic, these measures negatively affected sectors like tourism, construction and transport especially hard. Similarly, collapsing global demand for Sri Lanka's manufacturing output, especially textiles, caused further harm”[31].  DFAT reported that in 2021, Sri Lanka’s economy has been further troubled by the country’s low foreign-exchange reserves and high and rising government debt[32] In relation to the Northern and Eastern provinces , DFAT reported that those provinces reported the lowest median household income per capita in Sri Lanka’s most recent Household Income and Expenditure Survey (2019) and that in the case of the north, up to 40 per cent of households sustain their livelihoods through remittances from family living overseas[33].  There are high levels of indebtedness in the north and east[34].

    [31] Country Information Report: Sri Lanka, 23 December 2021, para 2.8.

    [32] Country Information Report: Sri Lanka, 23 December 2021, para 2.10.

    [33] Country Information Report: Sri Lanka, 23 December 2021, para 2.17.

    [34] Country Information Report: Sri Lanka, 23 December 2021, para 2.17.

15. The country information available to the Tribunal would support a finding that the economic vulnerabilities of the country and the applicant’s region (Eastern province) increase the potential for extortion and that the applicant’s return to the same region where he previously lived and was threatened may render him more vulnerable to threats of harm as well as extortion, particularly given his intention to re-establish his business.  The Tribunal cannot suggest that the applicant could avoid his feared him by refraining from re-establishing his business.  His psychological and physical vulnerabilities would contribute to a cumulative risk to the applicant that he may be forced to compromise his livelihood by giving in to criminal extortion. 

16. Although the Tribunal accepts country information that being Tamil, a failed asylum seeker, a returnee from a Western country and being subjected to the consequences of the I&E Act and the PTA, without more, do not necessarily mean that the applicant faces serious or significant harm, when his profile is considered cumulatively, the Tribunal finds that it is not remote that there is a real chance of the applicant facing Convention-related harm (membership of a particular social group of wealthy/perceived to be wealthy businessmen).

17. The Tribunal is satisfied that the applicant has a profile, including having suffered harm in the past, and having been subjected to extortion, which makes him vulnerable.  The Tribunal accepts the evidence that in the circumstances of his case, state protection may not be available or effective to mitigate or forestall any harm.  Therefore, the Tribunal finds that the applicant’s fears of persecution are well-founded.  The Tribunal has considered whether relocation would be reasonable and effective in the circumstances. Given that the family and commercial ties that the applicant has are in his hometown, the Tribunal is satisfied that relocation is not reasonable.

    CONCLUSIONS

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

    DECISION

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

    Antoinette Younes
    Deputy President