1909084 (Refugee)

[2024] AATA 4031

1909084 (Refugee) [2024] AATA 4031 (10 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Morag Milton

CASE NUMBER:  1909084

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Siran Nyabally

DATE:10 October 2024

PLACE OF DECISION:  Melbourne

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 10 October 2024 at 3:58pm

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – imputed political opinion – association with the Liberation Tigers of Tamil Eelam (LTTE) – race – Tamil – detention – physical assault – fear of torture – mental health issues – Tamil political events in Australia – promoting Tamil separatism – decision under review remitted

LEGISLATION

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

CASES

AGA16 v MIBP [2018] FCA 628

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Subclass 790 Safe Haven Enterprise (Class XE) visa (protection visa) under s 65 of the Migration Act 1958 (Cth) (the Act).

   APPLICATION FOR REVIEW

2. The applicant travelled to Australia by boat, arriving on Christmas Island in November 2010. On 23 April 2011 the application made a request for a protection obligations assessment (POA). The applicant was found not to be owed protection, and the negative POA outcome was affirmed by an independent protection assessor (IPA) in January 2012.

3. In February 2012 the applicant attempted suicide. He was subsequently hospitalised. Since his release from hospital the applicant has had ongoing, albeit intermittent, treatment for his mental health.

4. In March 2013, the Federal Circuit Court quashed the IPA’s decision.

5. On 22 July 2015 the Department notified the applicant of its intention to re-assess his protection claims as part of an International Treaties Obligations Assessment (ITOA). In December 2016, the applicant was informed that the Department was suspending the processing of his ITOA.

6. On 27 August 2018 the applicant was invited to apply for the protection visa. He was interviewed by a delegate on 27 March 2019. The delegate refused to grant the protection visa on 3 April 2019.

7. The applicant applied for review of the delegate’s decision on 12 April 2019.

8. The applicant appeared before the Tribunal on 23 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of the applicant’s representative and an interpreter in the Tamil and English languages.

   CLAIMS AND EVIDENCE

9. The applicant claims to be [an age]-year-old Tamil who was born and raised in [City 1], Sri Lanka. While in Sri Lanka he was detained and abused by the Sri Lankan authorities on 2 occasions: once in 1994, following a fight between the Sri Lankan Army (SLA) and the Liberation Tigers of Tamil Eelam (LTTE) in the [City 1] area; and once in June 2008 following a bomb blast in the [Area 1] area of [City 1]. The applicant feared that if he returned to Sri Lanka, he would be arrested and tortured by the Sri Lankan authorities, who would perceive him as being associated with the LTTE.

10. In their decision record, the delegate accepted that the applicant was arrested and detained in 1994 and 2008 but did not accept that he was of ongoing interest to the Sri Lankan authorities at the time of his departure in 2010, or that he had a profile of interest to the Sri Lankan authorities at the time of the delegate’s decision.

11. The applicant has provided a large amount of information to the Department and Tribunal, including:

    ·oral evidence given at his entry interview on 5 December 2010, his protection visa interview on 27 March 2019, and the Tribunal hearing on 23 August 2024;

    ·four statutory declarations declared on 23 April 2011 (2011 statement), 20 December 2018 (2018 statement) 19 August 2024 (August statement) and 16 September 2024 (September statement);

    ·a letter prepared by the applicant’s psychologist, [Psychologist A], dated 19 August 2024; and

    ·letters and reports from the applicant’s support workers, medical practitioners, friends and acquaintances.

12. As is evident from the above case chronology, the applicant has advanced his protection claims on numerous occasions to a range of decision makers. On each occasion, the applicant has set out a generally consistent account of his history in Sri Lanka and his fears of harm if returned. The Tribunal has had the benefit of listening to the audio recording of the applicant’s department interview, seeing the applicant at hearing, and considering the supporting submissions and country information provided by his representative. The Tribunal found the applicant to be an engaged and responsive witness, albeit one whose capacity to give evidence was hampered by the extensive trauma he has endured in the past. The Tribunal has no concerns as to the applicant’s credibility or his evidence of his history and experiences in Sri Lanka.

    CRITERIA FOR A PROTECTION VISA

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

14. 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.

15. 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).

16. 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.

17. 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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds. The applicant does not claim to be a member of the same family unit of a person in respect of whom Australia has protection obligations.

20. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Identity

21. The applicant has provided identity documents confirming that he is a citizen of Sri Lanka. There is no information before the Tribunal suggesting that he has a right to enter or reside in any other country. The Tribunal finds that the applicant is a citizen of Sri Lanka, and that Sri Lanka is the receiving country and country of reference for the purposes of this review.

    Claims

22. It is not necessary to set out the applicant’s history and experiences in detail. As noted above, the Tribunal has no concerns with the applicant’s credibility and found the applicant’s oral and written evidence to be generally consistent, plausible, and, where relevant, corroborated by information from third parties. As the Tribunal has ultimately concluded that the applicant meets s 36(2)(a) of the Act on the basis of his imputed pro-Tamil separatism political opinion, it has only addressed the applicant’s claims to the extent that they are relevant to its findings.

    Background

23. The applicant was born on [date] in [City 1], in the Eastern Province of Sri Lanka. He is of Tamil ethnicity and Hindu religion. The applicant [has specified family members]. His parents and [one sibling] are deceased. His [specified siblings] live in Sri Lanka, Australia and [Country 1], and [another] lives in [Country 2].

24. The applicant married his wife in 2007. They have [number] children: [ages and genders specified]. The applicant’s wife and children remain in Sri Lanka.

25. While he lived in Sri Lanka, the applicant primarily worked as [an occupation 1]. Relevantly, he was working as [an occupation 1] in [City 1] from 2005 to 2008. The applicant ceased working as [an occupation 1] for about a year between 2008 and 2009, before resuming work from 2009 until his departure from Sri Lanka.

26. The applicant left Sri Lanka by plane in April 2010.

27. The Tribunal accepts the above matters to be true.

    2008 arrest

28. The applicant’s claims to fear harm from the Sri Lankan authorities stem from an incident in early 2008, when a [bomb] was detonated in the [Area 1] of [City 1]. The SLA and the Criminal Intelligence Department (CID) suspected that the bomb was planted by Tamil [occupation 1s] who supported the LTTE. There were a number of [occupation 1s] who would regularly [gather] in an area near [Area 1], all of whom were Tamil. [Many] would [gather] at [this location], but only 4 or 5 (including the applicant) were present at the time of the blast.

29. In the months following the bomb blast, several local Tamil [occupation 1s] were kidnapped and killed. The other [workers] suspected that the SLA and/or the CID were responsible for their disappearance.  The applicant was concerned that the Sri Lankan authorities would suspect him of involvement in the blast, so decided to avoid working at [Area 1], opting instead to [work] around his home area.

30. In about June 2008, the applicant was walking to his sister’s home when he was stopped by men wearing army trousers and civilian shirts. The men, who were members of the CID, detained the applicant and took him to a military checkpoint at [Area 1]. People who witnessed the applicant’s arrest informed his family, who went to the checkpoint to beg for the applicant’s release. The CID eventually took the applicant to a police station in [location]. The applicant was detained and questioned about the bomb blast, during which time the police officers punched and slapped him. The police officers asked the applicant for his name and address, then prepared a written statement in Sinhalese, forcing him to sign it. The applicant did not know what was contained in the statement. The applicant was released after about 9 hours.[1] 

    [1] At his interview with the IPA officer the applicant stated that he was detained again in 2010, however in subsequent interviews he clarified that his evidence to the IPA was incorrect and he was only detained in 2008.

31. The applicant believed that the CID took him to the police station to kill him, and he was only spared because of his family’s intervention.

    Conduct prior to departure from Sri Lanka

32. After the applicant was released by the police in June 2008, his wife asked him not to work as [an occupation 1] anymore as she was concerned for his safety. The applicant agreed, opting to work as a labourer for about 1 year. He resumed work as [an occupation 1] in 2009.

33. The applicant was harassed by the CID around 4-5 times from the date he was released by the police to the date he departed Sri Lanka, but was not subsequently detained.  

    Inquiries by the Sri Lankan authorities

34. The applicant’s wife has told him that in the years since he departed Sri Lanka, the Sri Lankan authorities had inquired about his whereabouts on several occasions.

35. In 2010, shortly after the applicant arrived on Christmas Island, his wife informed him that the CID had come to their home to look for him. When the applicant’s wife told the officers she did not know where he was, they told her not to tell lies, and that they knew he was on Christmas Island. His wife said that [an occupation 1] had told her that the CID were also asking about him at [a specified location].

36. The Sri Lankan authorities have visited the applicant’s family on 3 further occasions: in the middle of 2012, in early 2019, and at the end of 2023.

    Conduct in Australia

37. The applicant has been involved in a number of Tamil community events while living in Australia. He has volunteered for the ([Community Group 1]) since 2014, and regularly attends memorial events for Mullivaikkal Remembrance Day on 18 May and Maaveerar Naal (or Martyr/Heroes Day) on 27 November. The applicant began attending with his sister, and as time went on he became more involved in the organisation of the events. The applicant observed the 2024 Mullivakkal Remembrance Day by volunteering at an event organised by the [Community Group 1] in [Melbourne]. He is also involved in the planning for the 2024 Maaveerar Naal event, including by [activity] on the day.

    Fear of harm

38. The applicant fears that if he returns to Sri Lanka, that the authorities would detain and torture him. They would be aware that he had attended Tamil political events in Australia and would think that he is associated with the LTTE. He is aware of other Tamil people who have returned to Sri Lanka after attending diaspora events in other countries, such as England and France, who have been taken and tortured by the Sri Lankan authorities. The authorities publish that the people were killed by ‘persons unknown’, but Tamil people know it was the Sri Lankan authorities who killed them.

    FINDINGS

39. The Tribunal accepts on the basis of the applicant’s consistent evidence that he worked as [an occupation 1] while in Sri Lanka. The Tribunal accepts that a bomb blast occurred at [Area 1] in [City 1] in early 2008, that the Sri Lankan authorities suspected that the local Tamil [occupation 1s] were responsible for the blast, and that over the following months a number of Tamil [occupation 1s] were abducted and killed. The applicant’s claims are corroborated by country information, which records that a number of Tamil men were shot dead in [the vicinity] of [Area 1] over that period.[2]

    [2] [Source deleted.]

40. The Tribunal accepts that the applicant’s account of his 1994 and June 2008 arrests is true. The applicant has given detailed and consistent evidence about these events, which were accepted by both the IPA in 2011 and the delegate in 2019.

41. The Tribunal accepts that when he was detained in June 2008, that the CID may initially have intended to kill the applicant as reprisal for the bomb blast but opted not to due to his family’s intervention. This claim is consistent with country information, which indicates that Sri Lankan forces were suspected of kidnapping and shooting Tamil men in the [City 1] area as reprisal for LTTE attacks around that time.[3] The Tribunal accepts that the CID handed the applicant over to the Sri Lankan police, who detained and beat him and forced him to sign a confession in Sinhala. Country information indicates that Tamil detainees were routinely beaten and forced to sign confessions in Sinhala, a language which they could not read.[4]

    [3] See for example, deleted][Sources .

    [4] [Source deleted.]

42. As the applicant was forced to sign a confession, the Tribunal accepts that at the time of his departure in 2010, the applicant may have been of some ongoing interest to the Sri Lankan authorities, albeit as an imputed low-level LTTE supporter. Country information indicates that in practice, this imputed low-level support would mean that at the time of his departure, the applicant would likely have been monitored by the authorities but would have been at a low risk of being detained or prosecuted.[5] It is also consistent with the applicant’s claim – which the Tribunal accepts – that the authorities have visited his wife on 4 occasions since he departed Sri Lanka.

    [5] DFAT Thematic Report, ‘People with Links to the Liberation Tigers of Tamil Eelam’ (3 October 2014) at [2.14].

43. However, in assessing the applicant’s claims to fear harm in Sri Lanka, the Tribunal needs to consider the chance or risk of harm to him now or in the reasonably foreseeable future. This assessment is a forward-looking test.

44. The Tribunal accepts that the applicant has been extensively involved in Tamil community events while in Australia. This claim is corroborated by several statements provided by the applicant’s friends, his former resettlement case manager, as well as by the President of the [Community Group 1] [named] who writes that:

    [The applicant] has been a volunteer with the [Community Group 1] since 2014. He has volunteered at events such as Tamil Genocide Remembrance Day, marked on May 18, and Heroes Day, marked on November 27. [Our events] are monitored by Sri Lankan Government agents, and on many occasions, our events have been disrupted by Sri Lankan Government supporters. Hence, I am certain Sri Lankan security agencies are well aware of [the applicant’s] activities in Australia.

45. The Tribunal is satisfied the applicant was motivated to attend these events and more broadly support Tamil diaspora organisations such as the [Community Group 1] because he wanted to commemorate those who have sacrificed their lives for the Tamil people. It is satisfied he engaged in such conduct otherwise than for the purpose of strengthening his claim to be a refugee: therefore the Tribunal has not disregarded that conduct as per s 5J(6) of the Act.

    Is the applicant a refugee?

46. Given its findings about the applicant’s past experiences in Sri Lanka, his conduct in Australia, and his extant profile, the Tribunal has considered whether he faces a well-founded fear of persecution on return to Sri Lanka, in view of (among other things) the passage of time and change in the country situation there.

47. In her written submissions to the Tribunal the applicant’s representative submits the applicant faces a well-founded fear of persecution from the Sri Lankan authorities, including the CID, based on his cumulative profile as a Tamil from the eastern province of Sri Lanka, who was previously arrested and tortured by the Sri Lankan authorities, who was suspected of involvement in LTTE activities and made to sign a false confession, and who had attended and volunteered in pro-Tamil political events while outside of Sri Lanka and planned to continue doing so. His representative further submits that if he were to be detained by the Sri Lankan authorities, there is a real chance that his already fragile mental health will acutely deteriorate.

    Country information

1. DFAT reports that the military retains a significant presence in the Eastern Province of Sri Lanka, 15 years after the end of the war.  Further, in-country sources reported that the military and police had strong intelligence and surveillance capabilities, closely monitored for separatist activity, and that the military presence in the north-east had not materially reduced since the end of the war and was disproportionate to the security threat.[6]

   [6] DFAT, ‘Country Information Report: Sri Lanka’ (2 May 2024) (DFAT Report) at [2.75].

2. The Sri Lankan authorities remain on high alert to the potential re-emergence of the LTTE and to Tamil separatist activity more broadly. Security forces continue to monitor public gatherings and protests in the north-east, and monitor and question individuals and groups suspected of promoting Tamil statehood or pursuing politically sensitive issues related to the war (such as organising and participating in civil war commemorations). DFAT assesses that Tamils who are suspected of glorifying the LTTE, as a proscribed entity, face a high risk of monitoring, arrest and detention.[7]

   [7] DFAT Report at [3.13], [3.16].

3. DFAT indicates that the former Wickremesinghe government[8] took a more permissive approach to some Tamil war commemorations, which were restricted under the Rajapaksas. Mullivaikkal Remembrance Day commemorations largely passed without incident in 2022 and 2023 and Maaveerar Naal commemorations likewise generally passed without incident in 2022.  However, some Maaveerar Naal commemorations, including in Vavuniya and Batticaloa, were disrupted by police in November 2023 and, according to Human Rights Watch, nine Tamils were arrested under the Prevention of Terrorism Act (PTA).[9] The US Department of State noted that ‘throughout the country, but especially in the north and east, Tamils reported security forces regularly monitored and harassed members of their community, especially activists, journalists, NGO staff, and former or suspected former LTTE members’.[10] In its August 2024 report, the United Nation’s Human Rights Office of the High Commissioner (OHCHR) states:

   OHCHR also received reports of at least 12 cases in which the PTA was used to detain persons, – primarily those participating or involved in organization of memorialization activities, – for a short period and without adequate acknowledgment of their deprivation of liberty, who were then released on bail or discharged weeks or months later.[11]

   [8] Wickremesinghe was defeated by Anura Dissanayake in Sri Lanka’s 2024 Presidential election, held on 21 September 2024. See Ellie Grounds, ‘Left-leaning Anura Dissanayake claims victory in Sri Lanka's presidential election after second vote count’, ABC News Online (23 September 2024), available at DFAT Report at [3.15].

   [10] United States Department of State, ‘2023 Country Reports on Human Rights Practices: Sri Lanka’, (22 April 2024),           20240423140425, p 48.

   [11] Office of the High Commissioner for Human Rights (OHCHR), Report A/HRC/57/19 (advance unedited version) (16 August 2024), available at at [15].

The US Department of State has reported that:

Impunity remained a significant problem characterized by a lack of accountability for abuses, particularly regarding government officials, military, paramilitary, police, and other security-sector officials. Civil society organizations asserted the government, including the courts, was reluctant to act against security forces alleged to be responsible for abuses. During the year, civil society organizations reported some Tamils from the north alleged police illegally detained and tortured them and questioned them regarding connections to the LTTE or participation in protests.[12]

[12] United States Department of State, above n 10, p12.

The United Nations and various national and international human rights organisations continue to express concern about the use of repressive laws such as the PTA and the Bureau of Rehabilitation Act in order to arrest, detain and prosecute Tamils, despite promises of a de facto moratorium on its use.[13]

The HRCSL received numerous complaints of arbitrary arrest and detention. Police sometimes held detainees incommunicado, and lawyers had to apply for permission to meet clients, with police frequently present at such meetings. In some cases, unlawful detentions reportedly included interrogations involving mistreatment or torture. In August the government stated a de facto moratorium on the use of the PTA had been in effect since March 2022. Despite this there were reports of at least 15 arrests under the PTA. This included nine Tamils arrested in November for alleged use of illegal symbols or images glorifying the LTTE during participation in LTTE Great Heroes Day, an annual event to commemorate fallen LTTE fighters.[14]

[13] Concluding observations on the sixth periodic report of Sri Lanka, United Nations, Report CCPR/C/LKA/CO/6 (26 April 2023), available at at [16]; ‘Situation of human rights in Sri Lanka: Comprehensive report of the United Nations High Commissioner for Human Rights’, OHCHR, Report A/HRC/57/19 (advance unedited version) (16 August 2024), available at at [15].

[14] United States Department of State, above n 10, pp 16-17.

DFAT reports that whilst prohibited under Sri Lanka’s constitution and other laws, and the former Wickremasinghe government proclaiming a zero-tolerance approach, torture continues and is a routine tool of policing. They stated that in December 2023, the HRCSL reported torture was ‘a recurrent phenomenon in Sri Lanka.’[15] Earlier, in 2018, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms expressed concern about ‘the routine and systemic use of torture and ill-treatment and the conditions of detention, in particular the inhumane conditions in the high-security wing of the prison in Anuradhapura’.[16]

[15] DFAT Report at [4.19] and [4.23].

[16] DFAT Report at [4.21].

DFAT states that most reports of mistreatment and torture pertain to members of the police. In-country sources told DFAT that police routinely mistreated criminal suspects during their investigations, including as a means of extracting confessions.[17] They state:

Risk of torture perpetrated by the military, intelligence or police has decreased since the end of the civil war, but torture continues to be used, including as a routine tool of policing. Because few reports of torture are verified within Sri Lanka, it is difficult to determine the exact prevalence of torture; however, multiple domestic and international sources consider it to be common.[18]

[17] DFAT Report at [4.24].

[18] DFAT Report at [4.29].

Overall DFAT assesses that the general population in Sri Lanka face a low risk of torture, but that people arrested and detained for suspected criminal activities face a moderate risk of torture. They cite in-country sources who state that where it occurs, torture is not confined to a particular geographic region or ethnic group but is a nationwide problem that affects all communities. However, those most affected include people detained for drug trafficking and under the PTA for suspected terrorist activities.[19]

[19] DFAT Report at [4.30].

In a May 2024 report covering the period 2015– 2022 the International Truth and Justice Project (ITJP) state that Tamils have been disproportionately affected by torture, and police are generally not held accountable.  They state Tamil asylum seekers continue to make periodic claims of torture on account of their ethnicity and alleged ties to the LTTE.[20]

[20] ‘Disappearance, Torture and Sexual Violence of Tamils 2015–2022’, International Truth and Justice Project (9 May 2024), available at  p12-15.

With respect to the treatment of returnees (including failed asylum seekers), DFAT states that 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 also be interviewed by other agencies including the CID, the Sri Lankan State Intelligence Service (SIS) and the 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. For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal background, or trying to avoid court orders or arrest warrants.[21]

[21] DFAT Report at [5.37]–[5.39].

With respect to risks on return to Sri Lanka due to involvement in diaspora activities abroad, DFAT note that:

The United Kingdom Upper Tribunal, in its May 2021 ruling on Tamils engaged in activities in the United Kingdom, found that a range of political activities abroad may be perceived as threatening by the Sri Lankan Government and could trigger official harassment on return. These include attending meetings, demonstrations and war-related commemorative events, signing petitions, displaying flags or banners with LTTE insignia, and fundraising.[22] (emphasis added)

[22] DFAT Report at [3.100].

In the UK Upper Tribunal guidance decision of KK and RS,[23] reference was made to a previous guidance decision (GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC)) to confirm that in broad terms, the previous case still accurately reflected the situation facing returnees to Sri Lanka.  It nonetheless restated (among other things) that the Sri Lankan government drew no material distinction between violent separatism, as espoused by the LTTE, and non-violent advocacy for that end.[24]

[23] KK and RS (Sur place activities: risk) Sri Lanka [2021] UKUT 130 (IAC))

[24] Ibid at pp 2, 83.

In KK and RS it was concluded the question of whether an individual has or is perceived to have undertaken a ‘significant role’ in Tamil separatism remains the appropriate touchstone (as in GJ and Others) for assessing risk in cases concerning sur place activities.  However they clarified that:

·‘Significant role’ should not, and was never intended to, require an individual to demonstrate that they have held a formal role within an organisation[25].

·Nor should the term ‘significant role’ denote the need for an individual to show that their role (whether formal or not) has been ‘high profile’ or ‘prominent’ to the extent that these descriptions might suggest a position of leadership, for example, particularly substantial organisational duties.[26]

[25] Ibid at p107 [455].

[26] Ibid at pp 107-108 [457].

Additionally, in KK and RS it was noted (among other things) that prior to the return of an individual travelling on a temporary travel document the government of Sri Lanka is reasonably likely to have obtained information on several matters, including whether the individual is associated in any way with a particular diaspora organisation; the nature of involvement in these events, such as, for example, whether they played a prominent part or have been holding flags or banners displaying the LTTE emblem; any organisational and/or promotional roles (formal or otherwise) undertaken on behalf of a diaspora organisation; attendance at commemorative events such as Heroes Day; meaningful fundraising on behalf of or the provision of such funding to an organisation; authorship of, or appearance in, articles, whether published in print or online; and any presence on social media.[27] 

[27] Ibid at pp 125-126 [536(10)].

If an individual were perceived to have engaged in the expression of separatist views and these became known, it was found in the KK and RS ruling that ‘…it is reasonably likely that they would be detained, with the consequential risk of persecution within the mearing of the Refugee Convention and ill-treatment contrary to Article 3 of the ECHR’.[28]

[28] Ibid at p 133 [552].

The [Community Group 1], the diaspora organisation with whom the applicant is associated, represents itself as [speaking for] Tamil refugees in [Australia]. Relevantly, one of its stated campaign objectives is to “defend oppressed nations’ right to self-determination”.[29]

Assessment

[29] [Source deleted].

The Tribunal finds on the basis of the country information cited above that despite significant improvements since the end of the war for Tamils and the security situation in the north and east of Sri Lanka generally, the Sri Lankan government continues to take a particular interest in those who are involved with politically sensitive issues including memorialisation events and/or anything perceived to be promoting Tamil separatism, including accusations of war crimes. Although the Rajapaksas are no longer in power, the governance architecture set up by the Rajapaksas remains largely unchanged, and continued repression of political activists by police and surveillance of Tamil civilians and those involved in public memorial gatherings (for example) continues in the north and east, as well as with diaspora activities abroad. In some cases, there are arrests under the PTA. 

In the applicant’s case, he would be returning to such an environment as a Tamil from eastern Sri Lanka who has come to the adverse attention of the CID and local police members in the past due to his perceived association with the LTTE and suspected involvement in the 2011 bomb blast at [Area 1] (the evidence of his involvement being the confession he was forced to sign in June 2008). The Tribunal also accepts he has been active in Tamil diaspora activities as a supporter of the [Community Group 1], an organiser/volunteer at various [Community Group 1] Mullivaikkal Remembrance Day and Maaveerar Naal events, and that Tamil self-determination is a stated objective of the [Community Group 1].

Further the Tribunal accepts that the applicant’s wife, who remains in his home area, reports that she is regularly visited by the Sri Lankan authorities and asked about the applicant’s whereabouts, the most recent visit occurring in late 2023.

Given these considerations and taking into account country information about the continued militarisation and monitoring of Tamils in the east (and diaspora groups and activities), and intolerance of anyone perceived to be promoting Tamil separatism, the Tribunal is of the view that the applicant faces a real chance of serious harm on return to Sri Lanka from the authorities based on his imputed pro‑Tamil separatism political opinion. It notes in this respect the May 2021 decision of the UK Upper Tribunal (as set out earlier) that individuals active in the diaspora who express a belief in Tamil separatism who may attract attention do not need to demonstrate a formal role among diaspora organisations or show their role has been high profile or prominent.  Also that the Sri Lankan authorities draw no material distinction between violent separatism, as espoused by the LTTE, and non-violent advocacy for that end. The government is also suspicious of individuals involved in certain events, such as Mullivaikkal Remembrance Day, in Sri Lanka and among diaspora. The Tribunal accepts the applicant would participate in such events on return, as he has in the past, if not for fear of persecution in doing so.

If as a result of such adverse attention the applicant is detained and questioned for more than regular processing periods – either on arrival or once back in [City 1] – country information indicates that there remains a real risk of ill-treatment or harm requiring international protection, including torture. As noted, whilst DFAT assesses the general population face a low risk of torture, those detained by the authorities in Sri Lanka face a moderate risk of torture.  They also note although decreased, torture is still used, described as a routine policing tool.  Confessions extracted through torture are still permitted under the PTA.  Several sources state torture is common in Sri Lanka. Whilst the Tribunal acknowledges that the recent outcome of the Presidential elections may lead to the abolition of this practice, it is too early to discount the possibility of torture occurring as no more than remote.

The Tribunal considers the applicant, as a Tamil from the east, who was suspected by the CID in his local area of involvement in an attack on the Sri Lankan authorities, who was detained and beaten and threatened in 2008 as a result, whose family members have reported ongoing adverse interest, and who has been active in the diaspora community in Australia, may fall into this category. 

Given what it accepts of his past experiences and profile and that he may express and/or support the promotion of Tamil rights and/or memorial events in some capacity on return (if not for fear of doing so), the Tribunal considers the applicant may be imputed with a pro-Tamil separatist political opinion, which when combined with these other considerations and the country information, it accepts will result in a real chance of serious harm.

The Tribunal has also taken the applicant’s personal vulnerabilities into account in assessing the seriousness of any potential harm: AGA16 v MIBP [2018] FCA 628. It accepts that he was detained and physically assaulted by the Sri Lankan authorities in 1994 and 2008.[30] The Tribunal accepts the applicant is psychologically vulnerable due to these past experiences. It accepts he continues to suffer from Post-Traumatic Stress Disorder and Major Depressive Disorder, as indicated by the 2024 assessment provided by his treating psychologist.  He would be returning to a country where these events happened and where, for reasons above, the Tribunal considers he may still be at risk of coming to the adverse attention of the authorities.  Taking these considerations into account, the Tribunal is satisfied any future harm or even threats of harm the applicant may experience could amount to serious harm as contemplated in the Act.

[30] While it is not determinative, the Tribunal accepts the applicant’s claim that he was sexually abused by the Sri Lankan authorities in 1994.

Accordingly, the Tribunal accepts that should he return to [City 1], east Sri Lanka, now or in the foreseeable future, there is a real chance the applicant will face serious harm from the Sri Lankan authorities as required by s 5J(4)(b) of the Act, in that it involves a threat to his life or liberty or significant physical harassment or ill-treatment, for the purposes of ss 5J(5)(a)-(c). The Tribunal finds the applicant’s imputed pro-Tamil separatist political opinion is the essential and significant reason for the persecution the applicant fears, as required by s 5J(4)(a).

Additionally, the Tribunal is satisfied the persecution the applicant fears involves systematic and discriminatory conduct, as required by s 5J(4)(c), in that it is deliberate or intentional and involves his selective harassment for reason of his (actual or imputed) political opinion.

In this case, as the applicant fears serious harm at the hands of state actors, the Tribunal is not satisfied that effective protection measures as per s 5LA are available to the applicant in [City 1]. The Tribunal finds that the applicant would not be able to access effective protection if returned to Sri Lanka for the purposes of s 5LA(2).

1. Additionally, as the state authorities whom the applicant fears exist nationally, the Tribunal is not satisfied that there is any part of Sri Lanka where he would be safe from the persecution that he fears based on his actual or imputed political opinion. The Tribunal is satisfied the applicant would face a real chance of persecution in all areas of Sri Lanka as required by s 5J(1)(c).

2. The Tribunal notes that s 5J(3) states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience or conceal an innate or immutable characteristic. In this case, the Tribunal is satisfied that the modification would require the applicant to ‘alter his or her political beliefs or conceal his or her true political beliefs’ which is impermissible as per s 5J(3)(c)(iii) of the Act.

3. Accordingly, and for the reasons above, the Tribunal finds that the applicant faces a well‑founded fear of persecution from the authorities due to his imputed or actual political opinion if he returns to Sri Lanka, now or in the reasonably foreseeable future. The Tribunal finds the applicant has a well-founded fear of persecution for the purposes of s 5J.

4. Furthermore, there is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of s 36(3) of the Act.

5. Given these findings, the Tribunal has not gone on to consider other aspects of the applicant’s claims and submissions.

   CONCLUSION

6. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

   DECISION

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

   Siran Nyabally
   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.

   …