1910319 (Refugee)

1910319 (Refugee) [2024] AATA 4373 (6 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Carina Ford
CASE NUMBER: 1910319

COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Bryn Butler
DATE:6 September 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 06 September 2024 at 4:18pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion – family involvement in the Liberation Tigers of Tamil Eelam (LTTE) – particular social group – failed asylum seeker – political killings – fear of detention – illegal departure – mental health issues – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old man and citizen of Sri Lanka of Tamil ethnicity.
He arrived in Australia [in] March 2010. His procedural history, obtained from the departmental file and the delegate’s decision, includes the following:
·A request by the applicant for a Refugee Status Assessment (RSA) made [in] May 2010, with a negative outcome [in] September 2010.
·An independent merits review (IMR) application made [in] September 2010 with a negative outcome [in] March 2012.
·An appeal lodged with the Federal Magistrates Court of Australia [in] May 2012. The Minister withdrew [in] December 2012.
·The applicant was invited to apply on 23 May 2018 for a Temporary Protection (Subclass 785) visa, which is the subject of this review application.
The applicant applied for the visa on 16 September 2018. The delegate refused to grant the visa on 3 April 2019 on the basis that they did not find the applicant engaged Australia’s protection obligations. The delegate accepted that the applicant’s father was a member of the Liberation Tigers of Tamil Eelam (LTTE), but that it was of a low-level and that his father had not been involved in an incident in which members of the People's Liberation Organization of Tamil Eelam (PLOTE) were killed.
The applicant appeared before me on 12 August 2024 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.
The applicant was represented in relation to the review. The representative, Ms Nina Merlino of Carina Ford Immigration Lawyers, attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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.
CLAIMS AND EVIDENCE
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 under the complementary protection criterion.
For the following reasons, I have concluded that the matter should be remitted for reconsideration.
Summary of claims for protection
The applicant submitted a statutory declaration to the Department dated 8 June 2011. In the statutory declaration he sets out that his father was a member of the LTTE and involved in an incident where [members] of PLOTE were killed, and that following the incident his father took him and the family to India for their safety. The applicant states that he lived in India from 1990 to 2010 and that he cannot return to Sri Lanka because of his father’s involvement in the killing of PLOTE members, and that the applicant’s life would be at risk because they would want to take revenge for what his father had done.
The applicant submitted a statutory declaration to the Tribunal dated 2 August 2024. In the statutory declaration he sets out his immigration history, acknowledges that he provided incorrect information to the Department at his entry interview and in respect of the RSA, and provides further detail about his claims in respect of his father’s involvement in the LTTE and killing of PLOTE members. He states that he is not exactly sure what his father’s role was in the LTTE, but that his father came home only occasionally during the period in which he was in the LTTE. He fears the Sri Lankan authorities (Army, CID, members of PLOTE) because of his father’s involvement in the LTTE and his taking part in the attack on PLOTE members. He fears he would not be able to find employment in Sri Lanka, as he has not lived in Sri Lanka as an adult and has not been there since 1990. He states that he cannot relocate in Sri Lanka, and cannot return to India as he does not have lawful status there and considers that the Indian authorities would return him to Sri Lanka. He also states that his mental health has deteriorated during his time in Australia.
The applicant’s representative provided a written submission prior to the hearing and a post-hearing submission. In the pre-hearing submission, the representative outlined that the applicant fears harm on a number of bases, including:
·his membership of a particular social group in being a Tamil man whose family (in this case, his father) was a member of the LTTE;
·his membership of a particular social group in being the son of an LTTE member who had been involved in an attack in which members of PLOTE were killed;
·his real or imputed political opinion in being a supporter of the LTTE based on his ethnicity as a Tamil;
·his membership of a particular social group as a Tamil man previously targeted by the Sri Lankan authorities;
·his membership of a particular social group in being a Tamil man from a former LTTE-controlled area;
·his ethnicity as a Sri Lankan Tamil man;
·as a member of a particular social group in being a returnee from the West;
·as a member of a particular social group in being a failed asylum seeker who departed Sri Lanka illegally;
·as a member of a particular social group in being a person who had been outside Sri Lanka for a very long period;
·as a member of a particular social group in being a person with mental health issues;
·as a member of a particular social group in being a failed asylum seeker; and
·on the basis of his religion, Christianity.
Applicant’s background
The applicant was born in [Town 1], Vavuniya, Sri Lanka in [specified year]. His father passed away in 2019. His mother lives in Tamil Nadu, India. He has [specified family members]. [Number] live in Tamil Nadu and one has passed away. He is married and has two daughters. He married his wife in 1996. His wife and one daughter live in Tamil Nadu. All his family in India reside in a refugee settlement. His other daughter is in [Country 1] with her husband, and they have both sought asylum in [Country 1]. A copy of the certificate of request for asylum in [Country 1] dated 15 December 2023 in respect of the applicant’s daughter, with translation, was provided to the Tribunal after the hearing.
In 1990, the applicant’s family moved from Sri Lanka to India. The applicant resided in India from 1990 to 2010 in a refugee settlement. In 2010, he left India by boat and arrived in Australia [in] March 2010.
The applicant has provided his marriage certificate dated March 1996 from India, Refugee Certificate dated February 2006 from India, certificate from the Taluk Office in [Town 2] dated [in] April 2016 stating that the applicant left the refugee camp [in] February 2010 alone, and Sri Lanka Refugees registration document for his wife and children, which show that they reside in India. He has also provided a statutory declaration from his mother which was sworn in India. His mother, in her statutory declaration, states that the applicant’s father was an LTTE member and that is why they left Sri Lanka in 1990. On the basis of these documents and the applicant’s testimony at hearing, I accept that the applicant left Sri Lanka in 1990 with his family, and resided in India from 1990 prior to arriving in Australia in 2010.
Applicant’s claims for protection at entry interview and Refugee Status Assessment (RSA)
At the entry interview, the applicant claimed that he had lived in Sri Lanka from birth, and that he departed Sri Lanka [in] February 2010. He claimed to not have lived in any other country prior to coming to Australia. He claimed to have been arrested in Sri Lanka on suspicion of involvement with the LTTE and that he was tortured in a camp. Before the RSA, he claimed to have been stopped when travelling in a jeep in Sri Lanka and was hit on the back of the head by a riffle. These claims were abandoned by the applicant before the Independent Merits Reviewer when the applicant submitted the statutory declaration dated 8 June 2011.
At the hearing, the applicant was apologetic about raising incorrect claims before the Department and, without prompting, spoke at the commencement of the hearing by providing an explanation for why he provided the false claims. He said that the agent who facilitated his travel from India told him that most of the people travelling in the same boat had travelled from Sri Lanka and so he was required to say the same thing, and if he did not, his family in India may get into trouble. He feared for his family and his safety and so followed the agent’s instructions to say he had come from Sri Lanka. He was told that if he told the truth about where they had travelled from, they may be caught and face punishment. The agent didn’t provide him with details about what he should say at the interview. He talked to others on the boat and after arrival, and based on the information he gathered from others, he made up his story which he told at the entry interview. I asked him why and when he decided to tell the truth to the Department. He said that after he was rejected by the RSA, he told them the truth because he was scared when he got the first rejection, and that they would send him back immediately and because he was concerned for his safety if he was returned to Sri Lanka, he admitted that he had given an incorrect set of claims.
Reason family departed Sri Lanka in 1990, and family history in Sri Lanka
The applicant claimed that if he returned to Sri Lanka, he fears for his life from the Sri Lankan Army, police, and military because his father was an active LTTE member.
He recalled an incident in [year] when he and his family were living in Vavuniya. When he was at school, the Sri Lankan army entered their town, and people ran away, but his father was working in the town in a [business 1] as a [specified role]. His father made his way to the school to look for the applicant but was caught and arrested on suspicion of being an LTTE member. I asked him how he knew this, as he would have been [age] years old at the time. He said that he has a vivid memory of what happened. He said that, at the time, his father was not part of the LTTE but after 1985 he became involved. He said that he remembers the time his father became involved in the LTTE well because the Sri Lankan air force bombed the town and his family was displaced. His mother and family moved into a school, and his father was working at the [business 1] which sent [supplies] to people in outer villages. His father was treated with suspicion, and had to report to the police regularly. His father became fed up with the authorities and how they had been treating him and other Tamil people, and so he joined the LTTE.
I asked the applicant why his father would join in 1985, as he had already had interactions with the authorities and he hadn’t chosen to join the LTTE earlier. He said he didn’t know the exact reason. I asked the applicant whether he had discussed his father’s involvement in the LTTE with him when they were residing in the refugee settlement in India. He said that his father did not give many details about his involvement in the LTTE, and that all he knows is that he was involved and that in 1990 he was directly involved in an incident where [members] of PLOTE were killed, and that incident caused his father to flee the country with his family. His father told him, and his family, that it was not possible for them to return to Sri Lanka because of the incident in 1990, but there was seldom any discussion about the topic.
His father said that if he himself were to return to Sri Lanka, he would be killed. I asked the applicant whether his father had ever told him what may happen to him and his [family] if they returned to Sri Lanka. He said they had not discussed that, but that the family should never return. The applicant said that if he returned to Sri Lanka, his father’s details would be in a database, and as he only has a birth certificate from Sri Lanka, he would automatically be linked to his father, which would mean the authorities would become aware that he, the son of an LTTE member who had killed a PLOTE member, had returned. He said that, as his father killed [these] people, the family of the people killed would also become aware he had returned and may wish to take revenge.
I put to the applicant that the incident was 34 years ago (in 1990) and given the passage of time, the family of the people killed may not wish to take revenge, or may not locate him. The applicant responded that when he thinks about returning, he is fearful, and that because his father is a wanted person, his police record would come up and he will be questioned. He said that the group, PLOTE, is still quite active, would find out the truth and would harm him.
According to the applicant’s statutory declaration dated 8 June 2011, his wife asked her uncle, who was residing in Sri Lanka, to check whether it was safe for them to return to Sri Lanka. His wife’s uncle went to Vavuniya and reported to them that it was not safe for them to return because [a relative] of the person killed in the incident the applicant’s father was involved in was still a PLOTE member.
I asked the applicant why they were considering returning to Sri Lanka. He said that his wife previously worked for a relief organisation and when the tsunami in 2004 devastated Sri Lanka, they contacted her, offered her a job, and asked whether she could come and help. He said that she wanted to go to help tsunami victims, but the applicant’s mother became very angry and said that she was going to take the applicant and he would be killed. He suggested that his mother knew that revenge killings were common. I asked whether the applicant had further details about his wife’s uncle’s trip. He said that it was his wife’s initiative, and she was the one who spoke to her uncle, but he was only told the outcome which was that they shouldn’t come because the whole family would be in danger.
I asked the applicant why he and his family had not been targeted by relatives of the people killed in the incident in 1990 when they were living in the refugee settlement in India. He said that he didn’t know why they weren’t targeted in the refugee camp, but he didn’t think that such acts could happen in Tamil Nadu, because the Indian government would not allow such things, such as revenge killings.
I asked the applicant whether his wife and daughters would return to Sri Lanka, if he had to return to Sri Lanka. He said that the problem for all of them is that their land was taken by the government and that they have nowhere to go. His ancestral property was acquired and given to others, which means that they would not have anywhere to live. He said that he had a house and one acre of farming land. I asked him if it had been confirmed that his ancestral land had been taken, and he said he didn’t know for sure, but from what he has been told by other people is that abandoned properties are taken by the government and other people in the area. For these reasons and their fear of the authorities, his wife and daughter in India are very likely to remain in India and would not travel to Sri Lanka even if the applicant returned. As noted above, one of the applicant’s daughters has made an application for refugee status in [Country 1].
The applicant confirmed that he doesn’t speak Singhalese, and his awareness of Sri Lankan culture is limited, given he left Sri Lanka when he was [age]. He is not in contact with any relatives in Sri Lanka. While his wife’s uncle resides in Sri Lanka, he has not met his wife’s uncle. The applicant is not in contact with other relatives in Sri Lanka.

The applicant also discussed his mental health, and noted that it was poor and he had recently been put in touch with support services. He is stressed by the ongoing separation from his family, and has had difficulties with alcohol use.
CONSIDERATION AND FINDINGS
Time spent in Tamil Nadu, India
I accept that the applicant is a Tamil male from Vavuniya, that he departed Sri Lanka by boat in 1990 with his family when he was [age] years old. While it is unfortunate that the applicant gave false claims at his entry interview and before the RSA, and this may have delayed the progress of his application, I accept that he did so on instruction from the agent who facilitated his travel to Australia, and that his motivation for providing the false claims was so that his family in India would not face any adverse consequences. He was also told that the people he travelled with would face difficulties if they said they had travelled from India, and so he would have felt compelled and pressured to provide the false claims. The applicant was forthcoming at the hearing and immediately wished to apologise for his error. Accordingly, I accept that the applicant gave a false set of claims in respect of being in Sri Lanka. He provided documentation in respect of his status in India, such as the Sri Lankan Refugee Identity documents for himself and his family, and marriage certificate showing he was in India in 1996. On the basis of the applicant’s concession and the information provided, I accept that he resided in India from 1990 until 2010.
Father’s involvement in the LTTE and incident in which PLOTE members were killed
Since 2011, the applicant has consistently claimed that his family left Sri Lanka in 1990 because his father was a LTTE member and was involved in the killing of a PLOTE member. At hearing, he said that his father did not speak about the involvement in the LTTE regularly and said that his father joined the LTTE because he was fed up with the treatment he had been receiving from the authorities. In his statutory declaration, he recalls having to provide for his family while his father was away between 1985 and 1990, and that they had farming land where they could grow [specified crops].
The applicant’s representative provided a post-hearing submission in which it was argued that involvement with the LTTE was controversial and support for the LTTE varied widely between families, and that discussion about LTTE membership may have been sensitive. Further, as the applicant and his family were residing in a refugee settlement in India, it may have been necessary to downplay any involvement in the LTTE and as a way to protect his family, his father may not have divulged many details about the incident or his involvement in the LTTE. I have considered the submission and accept the applicant’s evidence that his father was involved in the LTTE, and that there was a serious incident which prompted the family to depart Sri Lanka in 1990 for their safety. The applicant’s evidence at hearing about his father’s involvement in the LTTE did not appear to be embellished and the applicant was forthcoming when he was not able to provide further details about his father’s involvement. Given the applicant’s young age and because his father’s involvement in the LTTE would have been sensitive, I accept that his father did not discuss the incident in detail which led to the family departing Sri Lanka, however, he was aware that the family departed quickly to avoid danger because of the incident involving his father.
I accept that his father was involved in the LTTE from 1985 to 1990, that his father was involved in the killing of [PLOTE] members and that the family departed Sri Lanka to avoid any reprisals from the family of the PLOTE members or the Sri Lankan Army. I have made my finding based on the applicant’s testimony at the hearing and his consistent testimony since he provided his statutory declaration dated 8 June 2011. I acknowledge that the applicant did not provide this claim during his entry interview and RSA, but have accepted his reasons for providing a claim that he had come directly from Sri Lanka and had not been in India. I have also placed weight on the fact that the applicant did not at any point appear to embellish his evidence to heighten his risk profile, and was clear when he didn’t have any further information to provide. He was aware of the reason for the family’s departure from Sri Lanka was his father’s LTTE involvement and the killing of PLOTE members.
Does he face a real chance of serious harm?
I have considered whether the applicant faces a real chance of serious harm in Sri Lanka because of his father’s profile, his father’s involvement in the killing of PLOTE members, and on the basis of his Tamil ethnicity.
The LTTE was comprehensively defeated in 2009, and is no longer active.[1] According to in-country sources, the military presence in the north-east had not materially reduced since the end of the war and was disproportionate to the security threat.[2] Despite this, people are reported to generally travel within the Northern province (where the applicant is from) freely.[3]
[1] Department of Foreign Affairs and Trade, Country Information Report – Sri Lanka (2 May 2024) (DFAT Report), para 2.75.
[2] DFAT Report, para 2.75.
[3] DFAT Report, para 2.76.
In relation to the current situation for Tamils, DFAT reports that in-country sources said the level of state hostility toward Tamils had eased under the Wickremesinghe Government,[4] and that Tamils did not feel as threatened. In-country Tamil sources reported the security presence at Tamil war commemorations had reduced since the change in government, although some commemorations were disrupted, and arrests made, in November 2023.
[4] Ranil Wickremesinghe became President in July 2022: Sri Lanka: Ranil Wickremesinghe elected president by MPs, 20 July 2022, DFAT Report, para 2.4.
It is acknowledged that during the civil war, Tamils were monitored, harassed, arrested and/or detained by security forces, particularly in the north-east. However, DFAT currently assesses that ordinary Tamils, including those living in the north-east, face a low risk of monitoring, harassment, arrest and detention.[5] Given the low risk to ordinary Tamils and the freedom of movement in the region, I do not accept that the applicant would face a real chance or harm on the basis of his Tamil ethnicity alone, including as a Tamil from Vavuniya and as a Tamil from the north.
[5] DFAT Report, para 3.16.
The applicant has claimed that he is concerned that family members of the PLOTE members who were killed may target him, and that they would seek revenge for the killing. The applicant’s wife’s uncle also reported to them (prior to 2011) that it wasn’t safe to return to Sri Lanka because the [relative] of one of the people killed in the incident was still a PLOTE member.
PLOTE was a militant Tamil separatist group, founded by former LTTE member, Uma Maheswaran, in 1979.[6] While PLOTE and LTTE cooperated at various times against the Sri Lankan government, clashes between the two groups broke out, as the LTTE began fighting and absorbing rival Tamil groups. After 1985, the LTTE turned on PLOTE and began attacking them, reducing their size dramatically by mid-1987.[7] PLOTE, unlike the LTTE, accepted a 1987 agreement between India and Sri Lanka, and since then, PLOTE fought alongside Sri Lankan forces against the LTTE.[8] The LTTE launched a major offensive against PLOTE, causing the majority of its members to defect to the LTTE or be killed.[9] Today, the PLOTE is a minor political party, and sits within the Tamil National Alliance political grouping, and holds one seat in the current parliament.[10]
[6] Mapping Militant Organizations. “People's Liberation Organization of Tamil Eelam.” Last modified July 1, 2013. accessed 6 September 2024.
[7] Mapping Militant Organizations. “People's Liberation Organization of Tamil Eelam.” Last modified July 1, 2013. accessed 6 September 2024.
[8] Mapping Militant Organizations. “People's Liberation Organization of Tamil Eelam.” Last modified July 1, 2013. accessed 6 September 2024.
[9] Mapping Militant Organizations. “People's Liberation Organization of Tamil Eelam.” Last modified July 1, 2013. accessed 6 September 2024.
[10] DFAT Report, para 3.59.
I have considered whether the applicant faces a real chance of serious harm from family members or associates of the [people] killed in the incident in which his father was involved. The applicant was not aware of who was killed, or who the family members or associates of those killed were. While I accept that he has a genuine fear in relation to the possible reprisal attacks because of his father’s involvement, it is speculative as to whether there are any family members or associates of the people killed remaining in Sri Lanka who would wish to seek revenge for the attack 34 years later, and to seek revenge by killing the son of a person involved. There have not been any threats made to the applicant, or to his family, since they left Sri Lanka. Given the passage of time since the incident, and the lack of information about who may wish to target the applicant, I do not accept that there is a real chance that he would be targeted, harmed, or threatened by any family members or associates of the PLOTE members killed in the 1990 attack. I find the chance of such occurring to be remote.
I have accepted that his father was involved in the LTTE, and was involved in an incident resulting in the killing of [the] PLOTE members. I have considered whether he faces a real chance of serious harm from the Sri Lankan authorities because of this particular profile.
DFAT reports that Sri Lankan authorities remain highly alert to the LTTE’s potential re-emergence and to Tamil separatist activity more broadly, and that the security services maintain a large presence in Tamil areas.[11] In-country sources reported to DFAT that the Sri Lankan authorities had extensive intelligence collection capabilities, including former LTTE members who worked as informants.[12]
[11] DFAT Report, para 3.76.
[12] DFAT Report, para 3.76.
Notwithstanding the reported improvement in the security situation, DFAT also reports that currently former LTTE members continue to be monitored, usually by military intelligence and/or undercover police officers, and this can include visits, telephone calls and summons to attend a police station for questioning, but it does not include threats or physical violence.[13] In September 2021, advocacy group the International Truth and Justice Project (ITJP) reported that people inside Sri Lanka have been harassed and detained for their family connections to former LTTE members now living abroad. DFAT was not able to verify this claim, however in-country sources reported that close, Sri Lanka-based relatives of individuals living abroad who are suspected of previous involvement with the LTTE and/or who openly promote separatism and glorify the LTTE, including online, run the risk of being monitored and questioned.[14]
[13] DFAT Report, para 3.86.
[14] DFAT Report, para 3.95.
Given his father’s involvement with the LTTE and his father’s involvement in the killing of PLOTE members who would have been affiliated with the Sri Lankan authorities, based on the available country information, I accept that the authorities would be interested in the applicant if he returned to Sri Lanka and would seek to ascertain whether the applicant sympathised with the LTTE and its goal of separatism and also whether he has information about the 1990 incident.
I accept that the applicant departed Sri Lanka illegally in 1990, and he and none of his immediate family have returned to Sri Lanka since 1990. The Immigrants and Emigrants Act (1948) (the I&E Act) governs exit from and entry to Sri Lanka.[15] 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 and/or without a valid passport.[16] Given the mode of departure, where the family left by boat in 1990, he would be considered to have committed an offence in respect of his departure.
[15] DFAT Report, para 5.36.
[16] DFAT Report, para 5.36.
Upon return to Sri Lanka, the applicant would go through immigration where his identity would be verified. I accept that he would be able to obtain a temporary travel document for this purpose.[17] DFAT reports that,[18] depending on the circumstances of a person’s departure from Sri Lanka (i.e. if they departed legally or illegally), personal history (i.e. if they have a criminal background in Sri Lanka) and whether they are travelling on temporary travel documents, failed asylum seekers may face further questioning from Sri Lankan Immigration, the SIS, Navy Intelligence (SLNI) and the police (CID). These agencies check travel documents and identity information against immigration and intelligence databases and records of outstanding criminal matters. This process should identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. DFAT is not aware of recent returnees being mistreated during this process.
[17] DFAT Report, para 5.72.
[18] DFAT Report, para 5.39.
Accordingly, if he were to return to Sri Lanka, I accept that he would be questioned and, that he would be of interest to the authorities given the significant period of time he has spent abroad (34 years) and because he had departed Sri Lanka illegally. I accept that there is a real chance, that is more than a remote chance, that it would become known during the entry process that his father was in the LTTE, and that his father was involved in the killing of PLOTE members. This is because it can be expected that the authorities would ask the applicant for details about his family members and connections to Sri Lanka, given that the authorities are known to monitor family members of LTTE members.
The applicant is aware that his father was involved in the LTTE for at least five years (from 1985 to 1990) and that his father was involved in the killing of [PLOTE] members. I find that this type of involvement in the LTTE would be of particular interest to the authorities, and that his father would not be profiled as an ordinary or low-level LTTE member. This raises the applicant’s risk profile to the authorities, and given the Sri Lankan authorities’ goal of preventing any further uprisings and their sensitivity to any separatist movements, coupled with the reported security apparatus in the north, I find that that there is more than a remote chance that the authorities would monitor and/or detain the applicant to obtain details about his father’s involvement in the LTTE, his father’s activities from 1985 to 1990 and his father’s activities in India.
After arrival, if the applicant is not detained and is allowed to move freely within Sri Lanka, I find that there is a real chance that the applicant would be monitored by the Sri Lankan authorities because of his link to his father and because of the period of time he has spent abroad.
Even if he wasn’t detained upon arrival, I find that there is a real chance that he would be detained at a later point (after being monitored) so that the authorities can ascertain whether he has information about his father and his father’s activities which is not known to the authorities.
Given his father’s involvement in the LTTE and killing of PLOTE members in 1990, I find that there is a real chance that the authorities would detain the applicant and interrogate him. During interrogation, I find that the authorities would try to ascertain further details about his father and clarify whether the applicant himself is affiliated with the LTTE. While the applicant may not be able to provide many details to the authorities and his father has passed away, I do not accept that this means he can avoid the attention of the Sri Lankan authorities given his particular profile.
In summary, I accept that there is more than a remote chance that the applicant would be detained, either on entry or at a point in the reasonably foreseeable future after his entry into the country, because his father was involved in the LTTE, because his father was involved in an incident in which [PLOTE] members were killed, because he departed Sri Lanka illegally, and because he has spent over 34 years outside Sri Lanka and the authorities would wish to know his movements and activities during this time, particularly given his father’s involvement in the LTTE.
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
In respect of the monitoring the applicant would be subjected to (as described above), I do not accept that it would amount to serious or significant harm. Monitoring may interfere with someone’s sense of safety and cause them to restrict how they act, however, having regard to the non-exhaustive definition of serious harm and the definition of significant harm, I do not accept that it amounts to serious or significant harm.
I have found that there is a real chance (i.e., more than a remote chance) that the applicant would be detained as part of the authorities’ investigation into him. DFAT Reports that the risk of mistreatment and torture was not confined to a particular region or ethnic group; it was a countrywide problem that could affect all communities.[19] The Human Rights Commission of Sri Lanka is reported to receive hundreds of complaints of physical and/or mental torture in custody annually.[20] In December 2023, the HRCSL reported torture was ‘a recurrent phenomenon in Sri Lanka’.[21] DFAT reports that the 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, and while it is difficult to obtain verified reports of torture, multiple domestic and international sources consider it to be common.[22] For example, the United States Department of State (USDOS) and Freedom House, among others, stated there is an ongoing risk of mistreatment, including torture, from the authorities in Sri Lanka.[23]
[19] DFAT Report, para 4.26.
[20] DFAT Report, para 4.23.
[21] DFAT Report, para 4.23.
[22] DFAT Report, para 4.29.
[23] DFAT Report, paras 4.23 to 4.30; Sri Lanka: Freedom in the World 2024, Freedom House ( and USDOS 2023 Report ( C Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, and Other Related Abuses, D Arbitrary Arrest or Detention.
Given the available information on the use of torture and mistreatment on the part of the Sri Lankan authorities including as a routine tool of policing, I accept that the applicant, if he is detained upon entry to the country or whether he is allowed to leave the airport and monitored and detained at a later point, he may endure significant physical harassment during a period of detention, particularly given his father’s links to the LTTE and the killing of PLOTE members who would be considered to be affiliated with the Sri Lankan authorities. Such treatment would amount to serious harm. Accordingly, I find that he faces a real chance of serious harm, now or in the reasonably foreseeable future if he returns to Sri Lanka.

Further, I accept that the treatment, which I found would amount to serious harm would be systematic and discriminatory conduct, as it would be targeted towards the applicant primarily because of his particular profile as a family member of a former LTTE member involved in the killing of PLOTE members: ss 5J(4)(b), (c).
I am satisfied that the harm feared relates to all areas of the country, given that the harm feared is from the authorities: s 5J(1)(c). I am also not satisfied that he would be able to obtain effective protection measures, given that the harm feared is from the state: s 5J(2).
Given my findings, it is not necessary to consider further the applicant’s claims to face harm on the basis of his mental health or religion.
I acknowledge that the applicant spent 20 years in India, and was previously a registered refugee. DFAT reports that some Sri Lankan Tamil returnees from India have secretly returned to India, primarily due to limited livelihood opportunities and resettlement assistance in Sri Lanka.[24] They also report that previously repatriated persons who return to Tamil Nadu are unable to reclaim their legal status in India (or to be accepted into camps housing long-term residents) and, with it, their right to a broader range of social security benefits.[25] If he returned to India to live with his family, he would appear to have to do it in secret as his legal status in India would no longer be current and he may not be accepted into the settlement with his family. I find that the applicant is a citizen of Sri Lanka and does not have a right to enter and reside in any other country. As he does not have a right to enter and reside in a safe third country, s 36(3) does not apply.
[24] DFAT Report, para 3.117.
[25] DFAT Report, para 3.117.
I am satisfied that the applicant has a well-founded fear of persecution for reasons of his membership of particular social groups, being a family member of a person involved in the LTTE, a family member of a person involved in the LTTE in an incident in which [members] of PLOTE have been killed, and as a person who departed Sri Lanka illegally and has spent over 34 years outside the country, when considered cumulatively, if he returns to Sri Lanka in the reasonably foreseeable future.
For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Bryn Butler
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.
…

[2024] AATA 4373

6 September 2024

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