1914255 (Refugee) - [2024] AATA 4480

1914255 (Refugee) [2024] AATA 4480 (8 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Michaela Byers
CASE NUMBER:  1914255
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Mark Oakman
DATE:8 October 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 October 2024 at 10:32am
CATCHWORDS
REFUGEE – Protection Visa – Sri Lanka – religion – Hindu – race – Tamil – imputed political opinion – father was supporter of the LTTE – returned asylum seeker who has lived in India and Australia – failed asylum seeker – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 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 dependant.
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 on 4 June 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 26 July 2018. The delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 10 July 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 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, 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
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Receiving Country
The applicant provided a copy of his Sri Lankan birth certificate to the Department. He stated in his protection visa application that he was a citizen of Sri Lanka and confirmed the same at the hearing. Based on that documentary and oral evidence, I accept that the applicant is a national of Sri Lanka. Sri Lanka is the receiving country for the purpose of this assessment.
Migration history
The applicant’s migration history, as set out in the delegate’s decision dated 4 June 2019, is as follows:
“[date]/11/2010 - Arrived in Australia on vessel codenamed [name] (Boat ID: [number]) and transferred to Christmas Island Immigration Detention Centre
16/11/2010 - Entry Interview in Christmas Island
19/01/2011 - Refugee Status Assessment (RSA) commenced
21/04/2011 - RSA negative outcome
12/05/2011 - Independent Merits Review (IMR) lodged
17/10/2011 - Pre-Review Evaluation Check for RSA found original outcome should not be changed
21/12/2011 - IMR negative outcome
[Date]/01/2012 - Judicial Review lodged at the NSW Federal Magistrates Court (FMC)
16/04/2012 - Post Review Protection Claims (PRPC) initiated by the department
17/05/2012 - PRPC outcome - negative
[Date]/12/2012 - FMC NSW Judicial Review outcome – Minister win
[Date]/12/2012 - Judicial Review lodged at NSW Full Federal Court (FFC)
15/03/2013 - s46A(2) Ministerial Intervention commenced — outcome pending
[Date]/04/2013 - FFC NSW Judicial Review Result - Minister win
20/05/2014 - Protection visa application lodged
05/08/2014 - Protection visa application invalid
19/08/2014 - International Treaties Obligations Assessment (ITOA) commenced – client found to be affected by SZQRB case law
13/11/2014 - ITOA submission received by the department
06/03/2015 - ITOA interview conducted
02/04/2015 - ITOA Outcome – no obligations
[Date]/04/2015 - Judicial Review lodged at NSW Full Federal Court (FFC)
16/09/2016 - FFC NSW outcome – ITOA assessment affected by jurisdictional error
23/05/2018 - S46A bar lifted
26/07/2018 - SHEV application lodged”
Background
The applicant is [age] years old and was born in [Town 1], Northern Province, Sri Lanka. When he was [age] years old, he and his family moved to India. He lived in a refugee camp with his family until he left for Australia in 2010 by boat. He has never married and has no children. His parents and [siblings] continue to live in India in the same camp. He is in regular contact with his family in India. He is Tamil and Hindu. He speaks, reads, and writes Tamil, and at the hearing he described his English language skills as moderate.
He attended school primary school in India, up to Year 3. In India he did some casual, ad hoc, work as a [occupation]. He has worked in a range of jobs in Australia including as [range of occupations]. He has done some short courses in Australia in relation to his work. He sends money to his family in India, between $200-$500 every two or three months.
Evidence before the Department
The applicant lodged a protection visa application, with the assistance of his current legal representatives, on 26 July 2018. In his application he indicated that he relied on his previous statements of claim. Those claims are set out, in summary form, in the delegate’s decision dated 4 June 2019 are as follows:
“Claims and findings in the Independent Merits Review (IMR):
·His father took him and his family to India when he was quite young.
·His father was forced to contribute half of his diesel and supplies he used on his farm to the LTTE.
·His father believed that spies reported to the SLA that he was supplying to the LTTE, consequently his father was detained, interrogated and physically abused by the SLA for 10 days.
·After his father's detention, in 1990 his family departed from Sri Lanka and travelled to India.
·His uncle (his father's older brother) was shot and killed in 2006. The authorities might have interrogated his uncle about his father's LTTE association and killed him for that reason.
·He is afraid to return to Sri Lanka because he does not have any identity documents. He will be suspected of assisting the LTTE even though it has been some time since his family has been in Sri Lanka.
·He is aware of families being interrogated on return to Sri Lanka from India and who have been so afraid that they have fled Sri Lanka again.
·He cannot seek protection from the authorities, because he fears them.
·The SLA regularly interrogate and beat Tamils suspected of LTTE involvement.
·Tamils are targeted indiscriminately and the Sri Lankan government uses the SLA to cleanse the country of Tamils.
…
International Treaties Obligations Assessment (ITOA):
…
·If he returns to Sri Lanka he will be identified as his father's son and his illegal departure from Sri Lanka will be found to violate s.45(1)(b) of the Sri Lankan Immigration and Emigration Act.
·He will suffer cruel, inhuman or degrading treatment as a result of being prosecuted and punished under s.45(1)(b) of the Immigration and Emigration Act.
·His penalty could be harsher, as he may be perceived as having been connected to, or in support of the LTTE.
·He might be held for many months on remand in sub-standard conditions in Negombo Prison, or in interrogation with high likelihood of torture.
·As he has no known family members in Sri Lanka, he will be unable to provide surety for his bail, neither in cash nor in titles to land, both of which are commonly required when charges are laid under s.45(1)(b) as referred to above. Hence, his detention is likely to be protracted.
·He may not be picked up by a 'stop list' at the airport, but the risk for those of interest to the Sri Lankan authorities extends to their home area, where their arrival will be verified by the Criminal Investigation Department (CID) or police.
·He fears harm in Sri Lanka due to his status as a long-term Tamil refugee from India.
…”
He subsequently provided further supporting material consisting of a statutory declaration dated 7 September 2018 and a letter from the applicant to his (then) real estate agent. The statutory declaration detailed, among other things, how his original birth certificate that his parents took with them from Sri Lanka to India, and a copy of which he had provided the Department, had been destroyed in a fire in his unit in 2012.
In an email on 11 December 2018 the applicant’s legal representatives provided further material consisting of:
·Submissions dated 7 December 2018.
·Statements, with English translations, from his parents dated 17 September 2018.
·A further copy of the applicant’s statutory declaration dated 7 September 2018.
·A letter dated 19 November 2018 from a Dr [A] in relation to his research into monitoring and intelligence gathering in Sri Lanka.
In an email on 20 February 2019 the applicant’s legal representatives provided further submissions dated 20 February 2019.
The applicant attended an interview with the Delegate on 27 February 2019. A recording of the interview was provided by the Department to the Tribunal, and I have listened to that recording.
In an email on 5 March 2019 the applicant’s legal representatives provided further submissions dated 5 March 2019
The Delegate decided on 4 June 2019 to refuse to grant the applicant a protection visa and provided the applicant with a decision record with the same date.
Evidence before the Tribunal
The applicant lodged his application for review with the Tribunal on 6 June 2019. The applicant provided the Tribunal with a copy of the delegate’s decision record dated 4 June 2019.
In an email on 2 July 2024 the applicant’s legal representatives provided further material consisting of:
·Submissions dated 29 June 2024.
·Sri Lanka Refugee cards from India.
·Letter dated 28 May 2024 from the Coordinator of the [Organisation 1].
·A letter dated 2 June 2024 from the Hindu temple the applicant attends.
The applicant appeared before the Tribunal in person on 10 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages. His legal representative also attended the hearing and made oral submissions. Where relevant, the applicant’s oral evidence and the legal representative’s oral submissions at the hearing are referred to in my analysis below.
Analysis, reasons, and findings
The applicant said at the hearing that he was [age] years old when his family left Sri Lanka for India. He didn’t know that much about it, but it is based on what his father told him. He said his father never fully told him about what he did with the Liberation Tigers of Tamil Eelam (LTTE). His father did say he was a LTTE member, and the Sri Lankan Army (SLA) and the Criminal Investigation Division (CID) were looking for him, so the family escaped and went to India. His family had paddy fields in Sri Lanka, so his father was supplying paddy foods and diesel and the like to the LTTE. When the LTTE called his father, he went and provided these materials. The SLA came to know about it, so the SLA / CID came looking for his father and they escaped to India. He said he left India as he didn’t have any freedom. It was like life in a jail as he couldn’t go to work, he couldn’t go to study and, if he went out, he had to sign a register and be back by the evening. They lived in a small camp. All their lives were ruined, he didn’t want that to be his life, so he came to Australia.
He was asked at the hearing why he feared to return to Sri Lanka. He said that they will arrest him at the airport and because he has not been there since he was [age]. He also said he doesn’t have anyone in Sri Lanka and if they put him in jail there is no one to bail him out. It’s a new country / place to him and so he doesn’t know where to live. If he was to tell someone about himself, he would have to give his father’s details, so they would know who he was and about him and his father. When they look into his father’s profile, they would come to know everything. It will also be difficult for him to identify himself in Sri Lanka, and once they know who he is they will arrest him, ask him about his family, their whereabouts, what they are doing, and his whole family will be in trouble.
He said he can’t return and live in Sri Lanka as he left when he was [age] years old, and he is afraid to live there. He has seen what the SLA does terrorising people so that increases his fear. He says he will be at risk because of his Tamil language, race, and religion. If he returned his family would be in trouble. Sri Lanka is a new place to him, he has nowhere to stay. If he is put in jail there is no one there to come and visit him and feed him, and there is no one to identify him. He says his life would be a question mark if he returned to Sri Lanka. Everywhere they speak Sinhala. He has no evidence to prove his identity.
There is no safety for him in Sri Lanka if he returns. He is a member here of the Tamil community. He is involved in the [Organisation 1] where they have Tamil functions, where people come to take videos and photos of them. He used to take part in these functions, and this will add to his profile if he returns to Sri Lanka. He is also very involved in religious activities at temple here. Sri Lanka is Buddhist, and he can’t practise his religious as well if he returns. He was also involved in the Tamil community in India. If he returns to Sri Lanka, he will have trouble from all of this.
He was asked at the hearing what he feared may happen to him if he were to return to Sri Lanka. He said his life is not guaranteed in Sri Lanka. He has spent the last 14 years with, and been involved in, the Tamil community here. They must have his photos and videos and know all of this, and they will fear he will be involved in it in Sri Lanka. He was also involved in the Tamil community when he was in India. As a Tamil who has been involved in the Tamil community, if he returns, his life will be in danger from the SLA and CID.
He was asked about the supporting letters he provided from the [Organisation 1] and his Hindu temple. The applicant said that until his agent had mentioned it, he didn’t think his involvement with these organisations impacted on his visa application, so he only recently obtained these letters.
He said he was a practising Hindu and whatever happens he will follow his Hindu faith, even to his death. In Sri Lanka they are destroying Hindu temples for Buddhist ones. If he goes to Sri Lanka, he cannot pray in a Buddhist temple and he cannot change his religion.
He said the [Organisation 1] is a centre established for the Tamil community. They celebrate through that organisation all Tamil events including Martyrs Day, Heroes Day, the LTTE Leader’s Birthday, Tamil New Year and Diwali. He said that they are not allowed to celebrate these days in Sri Lanka, but he can celebrate them here. Martyrs Day on May 18 is the biggest celebration, with about 500 people. The applicant has been involved with the [Organisation 1] for nearly ten years. He was asked about his involvement in Martyrs Day celebrations. He said he arranges chairs and decorations, including Tamil flags and flower garlands; helps serve food; and afterwards helps to clean up. He couldn’t give a number on how many other people help with these things but said whoever was attending would stay and help clean up the place. He was similarly involved with Heroes Day celebrations. The Tribunal asked the applicant why his support letter from the [Organisation 1] didn’t mention the 2024 Martyrs Day celebration. He said he didn’t attend in 2024 as he had to work that day. The applicant said whatever functions the [Organisation 1] held, he used to be involved in those celebrations. The Tribunal asked him about his earlier mention of people coming to video and photograph these celebrations. The applicant said people connected to the Sri Lankan government, like the CID, would come and take videos and photos, not only now but for a long time. He was asked how he knew they were connected with the Sri Lankan government. He said you could see the difference between Sinhalese and Tamil. They would ask these people why they came, and they would just say they were taking videos and photos and then they would go away. He was asked if there was anything he did in Australia that he feared he couldn’t do in Sri Lanka. He said he would want to but would not be allowed to do the Tamil celebrations like Martyrs Day and Remembrance Day and other Tamils activities, in Sri Lanka.

He was asked if he had any other fears or concerns about what may happen to him if he returned to Sri Lanka. He said the main problem, as discussed, was that he feared his life would be in danger and they will treat him differently because he is Tamil. He said there was a possibility he would be tortured; and he was fearful for his life because of his Tamil language, race, and religion. He was asked where he would live if he returned to Sri Lanka. He said he can’t stay anywhere, he doesn’t know anyone there, he will be detained on arrival, and as he has no one there they will not release him.
In assessing the applicant’s evidence, the Tribunal is mindful of the difficulties often faced by applicants for protection, particularly those for whom some period has passed since they departed their country of origin, including factors such as recall problems, cultural communication issues, misunderstandings in interpreted material, or a lack of cohesive narration due to experiencing trauma or the passage of time. I am also mindful that, in a [counsellor’s] summary of treatment dated 26 February 2015 (discussed further below), the applicant was at that time said to have symptoms of anxiety surrounding his visa outcome, and therefore he may have found the process before the Tribunal to be stressful.
I note that the applicant gave an entirely different set of protection claims when he first arrived in Australia, based on his having lived in Sri Lanka without ever having gone to India with his family. He soon corrected that position, provided an explanation for making such claims, and he has been consistent about his protection claims since that time. I do not consider the false claims he made when he arrived in Australia, and which he maintained for a short period of time, to reflect adversely on his overall credibility.
In his protection visa application and at the hearing he provided generally consistent information about his family, education, and employment history, and I accept those details as summarised in the background above. He has also provided various supporting documents from his family in India. At the hearing he provided generally consistent information about his fears, if returned to Sri Lanka. I am satisfied he is generally a credible witness. I accept the applicant’s claims (except as noted otherwise), which in summary are:
·His father was a supporter of the LTTE who provided them with support in the form of food, fuel, and the like from his farm. His father was questioned and mistreated by the SLA and CID over a period of about ten days in 1990 in relation to his support for the LTTE. When he was released, his father took the family, including the applicant who was [age] years old at the time, to India as refugees.
·The applicant’s uncle (his father’s brother) was killed in 2006 in Sri Lanka. The applicant stated in his IMR claims that his uncle was killed in Sri Lanka in 2006, and suggested this might have been because they interrogated his uncle about his father's LTTE association and killed him for that reason. However, his father in one of his statements dated 17 September 2018, indicates his brother (and the brother’s wife) were killed in gunfire while moving about as refugees. Given the father’s information about his brother’s death, I reject the applicant’s suggestion and find that the applicant’s uncle was killed while moving about as a refugee.
·The applicant left India for Australia in 2010, as he was dissatisfied with the life they were living there. His family have remained in India in the same refugee camp.
·He has been involved with the Tamil communities in India and in Australia. He attends various Tamil commemorative functions, including Heroes Day and Martyrs Day. He has been involved with the [Organisation 1] for about ten years, including assisting with commemorative functions held at the centre. People have, on occasion, come to these events held by the [Organisation 1] and filmed and taken photos. He will participate in such events if he returns to Sri Lanka. Although he described his participation in such events as a passion in the hearing, given he did not attend the May 18 event this year as he was working, I find that his attendance at such events is not without fail and it is subject to other, competing priorities.
·He is a practicing Hindu, regularly attending temple in Australia. He will continue to follow his Hindu religion if he returns to Sri Lanka.
·He fears he will be harmed in Sri Lanka because his father was of adverse interest to the Sri Lankan authorities.
·He fears he will be harmed in Sri Lanka because of his Tamil race, religion, and language.
·The applicant has no relatives in Sri Lanka. If he returns to Sri Lanka, he will be alone. He had an original birth certificate as his only Sri Lankan identity document, but it was lost in a fire in 2012. There will be no one to identify him to the authorities and to assist him if he is arrested and/or put in jail. He fears he will be under suspicion because of his lack of identity documents. Any inquiries the authorities make about his identity will involve his father and their adverse interest in his father.
·As he has no relatives in Sri Lanka, he doesn’t speak Sinhala and his lack of local knowledge, he will be vulnerable and unable to subsist if he returns to Sri Lanka.
I accept that the applicant’s claimed fears, should he be returned to Sri Lanka, are ones that he genuinely holds. However, for the reasons discussed below, I do not consider any of his fears to be well-founded.
The applicant claims, and I accept, he left India, where he lived as a refugee from 1990, in 2010 to travel to Australia in a boat organised by a smuggler. I find that, if he were to return to Sri Lanka, he may be considered a failed asylum seeker who has spent time in India and Australia by the Sri Lankan authorities.
The applicant and his family lived in the Northern Province of Sri Lanka before they went to India in 1990. The applicant said at the hearing that he did not know where he would live if returned. As he was [age] years old when he left Sri Lanka, and he has no family in Sri Lanka, I find he has no connection anymore to the Northern Province. DFAT states that Sri Lankans who fail to secure asylum in Australia return to Sri Lanka via Colombo Airport and that Colombo, as the commercial capital (it is also the political capital), has attracted Tamils from other parts of the country in large numbers in search of economic opportunities.[1] Given those factors, I am satisfied that the applicant will very likely return to Colombo, if he returns to Sri Lanka.
[1] DFAT, “DFAT Country Information Report Sri Lanka”, 2 May 2024.
I note for completeness that, as mentioned above, during the ITOA process he provided a copy of a 26 February 2015 treatment summary from his [counsellor]. That summary indicates he attended 6 counselling sessions. It said he presented with symptoms of anxiety surrounding his visa outcome; grief and sadness at his separation from his family; and general feelings of hopelessness. It makes no mention of the applicant suffering from thoughts of self-harm and indicates his suicidal ideation as ‘nil’. The statement also notes his recounted history which can be said to be generally corroborative of some of the claims he has made. It recommended a further six counselling sessions but makes no other recommendations in relation to further treatment. It doesn’t suggest the applicant was or has been diagnosed with a mental illness or other mental disorder. In his protection claims throughout the IMR, ITOA, and protection visa processes, and before the Tribunal, the applicant has not claimed that he suffers from a mental illness or other mental disorder, that he holds any fears or concerns in that regard if he returns to Sri Lanka. Nor has he provided any further, updated supporting material concerning his mental health. Therefore, other than considering his previous anxiety when evaluating his evidence, together with it providing some corroboration as to the consistency some of his claims, these issues are not relevant to his protection claims.
The material provided by the Department to the Tribunal included a non-disclosure certificate in relation to a document identified as “[deleted]”. The certificate said “[t]he disclosure of these documents would be contrary to the public interest because the document contains a level of information, relating to risk management (i.e. operational measures undertaken by the Department or other government department), including information of a confidential nature regarding departmental systems and procedures, including information that should not be common or public knowledge, where the release of such information would impact the effective operation of the Department”. I do not consider the certificate to be valid. The document in question relates to an incident of self-harm by the applicant in 2011 while he was in detention. Although I appreciate the document relates to a sensitive issue, I do not consider releasing information concerning the Department’s identification and assessment of a self-harm incident, as set out in that document, would impact on the effective operation of the Department. Moreover, it would not, in my view, provide sufficient basis for founding a claim for public interest immunity. Additionally, the subject matter is not relevant to the applicant’s protection claims, as previously discussed.
Country information indicates that Tamils have maintained they were subjected to longstanding, systematic discrimination in university education, government employment, housing, health services, language laws and naturalisation procedures.[2] Incidents of extra- judicial killings, disappearances and kidnapping occurred frequently in Sri Lanka during the war, particularly in the north and east, there are credible reports of torture carried out by Sri Lankan security forces both during the war and in its immediate aftermath, and many Tamils, in the north and east in particular, reported being monitored, harassed, arrested or detained by security forces during the war and under the government of Mahinda Rajapaksa that was in power until 2015.[3]
[2] US Department of State (USDOS), “2023 Country Report on Human Rights Practices - Sri Lanka”, 22 April 2024.
[3] DFAT, "Sri Lanka - Country Information Report", 24 January 2017.
In its most recent report, DFAT notes that Maithripala Sirisena defeated Mahinda Rajapaksa in the January 2015 presidential election. In November 2019, Gotabaya Rajapaksa – Secretary of the Ministry of Defence during the defeat of the LTTE and younger brother of Mahinda – was elected president. Gotabaya promised to strengthen national security following terrorist attacks by local Muslim extremists in April 2019, enact tax cuts to stimulate the economy, and strengthen the unitary state. He also appointed three of his brothers to ministerial positions, including Mahinda as prime minister. The return of the Rajapaksas saw greater centralisation of power in the executive branch, active efforts to undermine the reconciliation process and loose fiscal policy. In 2022, Sri Lanka experienced the worst economic crisis in its history, resulting in shortages of essential items, lengthy blackouts, and hyperinflation, together with major social and political unrest. The Rajapaksas’ perceived economic mismanagement triggered mass protests, known as the Aragalaya (‘struggle’). Mahinda Rajapaksa resigned in May 2022 and was replaced by five-time former Prime Minister Ranil Wickremesinghe; Gotabaya Rajapaksa, having fled the country, resigned as President in July. In the same month, parliament elected Wickremesinghe president with a mandate to restore order and stabilise the economy. Upon election, Wickremesinghe acknowledged Sri Lanka’s ethnic and religious diversity, and the importance of finding solutions to the issues facing the Tamil community, including with respect to land and economic development. These efforts were ongoing as of May 2024, although progress was limited.[4] Since DFAT published this report presidential elections were held on 21 September 2024 and a new president - Anura Kumara Dissanayake - was elected in Sri Lanka. Following his election, the President dissolved Parliament and parliamentary elections will now to be held on 14 November 2024.[5] Some early reports indicate that his election may offer little hope of change to Tamils as during his election campaign (now) President Dissanayake rejected devolving more power to the north and east, where most Tamils live, and investigating incidents during the civil war that could amount to war crimes, together with his party’s support for the government in the civil war and that it opposed devolution or federalism.[6] Other reports, on diaspora views, appear to be hopeful of possible Constitutional reform.[7] Overall, I consider DFAT’s 2024 report to still provide an appropriate and accurate assessment of conditions in Sri Lanka, notwithstanding the recent election of President Dissanayake.
[4] DFAT, “DFAT Country Information Report Sri Lanka”, 2 May 2024.
[5] 'Who is Anura Kumara Dissanayake, Sri Lanka’s new Marxist president?', Associated Press (AP), 23 September 2024; 'Sri Lankans elect Marxist-leaning Dissanayake as president to fix economy', Reuters, 23 September 202; and 'Sri Lanka’s new president calls parliamentary election to consolidate his mandate', AP, 25 September 2024.
[6] 'Who is Anura Kumara Dissanayake, Sri Lanka’s new Marxist president?', A), 23 September 2024; 'The Implications of the Presidential Election on National Unity', Groundviews, 1 October 2024; and 'Sri Lanka’s New President Faces Daunting Challenges and High Hopes', United States Institute of Peace, 1 October 2024.
[7] 'Tamil diaspora looks to engage with Sri Lanka’s new President', Colombo Gazette, 26 September 2024; and 'Sri Lanka has entered a new dawn with its new president. What does the diaspora think of Anura Dissanayake?', Australian Broadcasting Corporation (News), 25 September 2024.
In that same report, DFAT has made assessments about issues faced by Tamils and those with former LTTE links, in Sri Lanka.[8] In particular, DFAT assesses that:
[8] DFAT, “DFAT Country Information Report Sri Lanka”, 2 May 2024.
·Most Sri Lankans face a low risk of official or societal discrimination on the basis of race or ethnicity, including in their ability to access education, employment and engage in politics. DFAT assesses that Tamils and Muslims face a higher risk of official harassment, in the form of state monitoring, relative to the Sinhalese population.
·Tamils are at low risk of official discrimination on ethnic grounds, including in public sector employment. DFAT assesses that under-representation of Tamils in the public sector is largely the result of language constraints, not official policy.
·Tamils who are monitored by the state face a moderate risk of harassment (in the form of visits and questioning). DFAT assesses that Tamils who are suspected of glorifying the LTTE, as a proscribed entity, face a high risk of monitoring, arrest, and detention. DFAT assesses that ordinary Tamils, including those living in the north-east, face a low risk of monitoring, harassment, arrest, and detention.
·Tamil parties that espouse more radical views than moderate parties are more likely to have their activities monitored, although can generally operate freely.
·Former LTTE members, depending on their profile may be monitored for suspected terrorist activity. As a proscribed entity, anybody found to promote the LTTE or Tamil statehood more broadly faces a high risk of monitoring, arrest, and detention. Former LTTE members within Sri Lanka have minimal capacity to exert influence on Sri Lankans.
·Known low-profile former LTTE members face a low risk of monitoring and harassment based on their previous association with the LTTE. While low-profile former LTTE members not previously known to the authorities may be subjected to monitoring for separatist activity, they would generally not be detained and prosecuted.
·While they may be monitored, Tamils with former links to the LTTE who are not engaged in politically sensitive issues are generally at low risk of official discrimination or harassment.
·Low profile former LTTE members face a low risk of societal discrimination, including those who were forcibly conscripted and/or recruited as children. Former members of the LTTE suspected of serious human rights abuses against other Tamils during the war, those who are high-profile and those who work as state informants face a moderate risk of societal discrimination.
·Sri Lankan Tamils returning from India face a low risk of official harassment or societal discrimination in Sri Lanka. Those with links to the LTTE may be subjected to monitoring.
·The general population face a low risk of torture. People arrested and detained for suspected criminal activities face a moderate risk of torture. This is especially the case for people suspected of involvement in the drug trade and terrorist activities.
·The legal system is independent and impartial, if not always efficient. Any Sri Lankan, including those from minority communities and victims of crime, can pursue remedies through the legal system, although language can be a barrier for Tamil speakers outside of Tamil-majority areas.
·The authorities generally respect the right to internal relocation. Individuals seeking to relocate internally to minimise monitoring and/or harassment by local-level officials for petty issues can do so safely, although structural, economic, and societal barriers may sometimes prevent them doing so.
As discussed above, I accept that the applicant’s father supported the LTTE, including supplying them with food and fuel from his farm in the North; that his father was detained, questioned and mistreated for ten days by the SLA/CID in relation to his links to the LTTE; and on his release the family, including the applicant, fled to India and have not returned to Sri Lanka. I also accept that the applicant is Tamil and his family originated from the North of Sri Lanka.
However, having regard to the information before me, I am not satisfied the applicant faces a real chance of serious harm in relation to those matters now or in the reasonably foreseeable future.
First, there is nothing in DFAT’s 2024 report that indicates that being of Tamil ethnicity, including being from a former LTTE area, and a Tamil speaker, would by itself give rise to a need for protection. Nor do the most recent reports from the US Department of State (USDOS) on human rights in Sri Lanka, the UK Home Office (UKHO) on Tamil separatism, and the United Nations Human Rights Council (UNHRC) on human rights in Sri Lanka.[9]
[9] USDOS, “2023 Country Report on Human Rights Practices - Sri Lanka”, 22 April 2024; UKHO, “Country Policy and Information Note - Sri Lanka: Tamil Separatism“, 25 August 2022; and 'A/HRC/57/19 - Situation of human rights in Sri Lanka - Comprehensive report of the United Nations High Commissioner for Human Rights*', UNHRC, 22 August 2024.
Secondly, his father’s support for the LTTE was, in my view, very low level, as he basically provided the LTTE with food and fuel from his farm. Although his father was detained, questioned, and mistreated, he was released, and such conduct was, unfortunately, not uncommon for Tamils in the north during the civil war. The applicant himself has no connection to the LTTE. Given his age ([age] years old) when he left Sri Lanka in 1990, I do not consider it plausible that the Sri Lankan authorities would suspect he himself was involved with the LTTE in Sri Lanka.

His father’s adverse incident with the authorities, and subsequent fleeing from Sri Lanka with the family, was over 33 years ago. This is a very substantial period of time. At the hearing I raised with the applicant that given the passage of time, this may raise concerns about whether the authorities or anyone else in Sri Lanka may have an adverse interest in him as his father’s son, or because of any other family connection, if he were returned to Sri Lanka. In response the applicant said, yes, they will take an interest, what happened, his father was searched for by the SLA/CID so he thinks his father’s name will be on their search lists, it would be there. The applicant said they would still be looking for his father. I also raised with the applicant that he has not lived in Sri Lanka since he was [age] years old. Given his age when he left and his continued absence from Sri Lanka, this may raise concerns about whether the authorities or anyone else in Sri Lanka may have an adverse interest in him, if he were to return to Sri Lanka. In response, the applicant said surely, they will. He can’t prove his identity alone so he will have to use his father’s profile to identify himself. They will be asking questions about what his father has been doing in that time. Because of this, he will have no safety there. I did not find the applicant’s responses to be convincing. I do not accept that, after the passage of some 33 years, from when his father suffered his adverse incident with the authorities, and since the applicant left Sri Lanka as a young child, the Sri Lankan authorities would continue to have an adverse interest in the applicant’s father, or in the applicant whether as his father’s son, as a Tamil who left Sri Lanka for India, or otherwise. Any such interest will have dissipated over that lengthy period.
Further, since the applicant left India for Australia in 2010, and more particularly since 2015, the country information overall suggests the general situation and country conditions for Tamils in Sri Lanka have substantially improved compared to the years of the war and its immediate aftermath.
The applicant fears he will be harmed if returned to Sri Lanka, due to his Hindu religion and/or that he will be unable to follow his Hindu religion in Sri Lanka. DFAT assesses that, while laws and official policies generally do not discriminate based on religion, religious minorities can face a moderate risk of official discrimination from lower-level officials and police, particularly in rural areas and/or where Buddhists form a majority. Religious minorities, particularly Muslims, face a moderate risk of societal harassment by Sinhala Buddhist nationalist groups, although the influence of these groups has decreased under the (now former) Wickremesinghe Government. DFAT assesses that individuals perceived to be denigrating Buddhism face a moderate risk of arrest, detention, and prosecution. However, DFAT also assesses that Hindus can practise their faith freely, including in areas where they do not form a majority, and are generally not at risk of violence or discrimination due to their religion.[10] At the hearing, I raised with the applicant that he had concerns in relation to his Hindu religion if he returned to Sri Lanka. However, country information indicates that Hindus can generally practice their faith freely, including in an area where they do not form a majority. And that generally, Hindus are not at risk of violence or discrimination due to their religion. This may suggest that he may not be at risk of harm due to his Hindu religion if he returns to Sri Lanka. In response the applicant said it was not like that and he didn’t accept the country information. In lots of places Hindu temples at night they come and replace Hindu statutes with Buddhist ones and then say it’s now a Buddhist temple and you can’t come here. It’s still happening in the Northern and the Eastern Provinces in Hindu temples, he’s been reading it and seeing it in the news. He can’t freely practice his religion if he returns to Sri Lanka. I prefer the assessment of DFAT over the assertions of the applicant. I note that DFAT also notes the encroachment, and takeover, by Buddhists of some Hindu places of worship, but still makes the assessment set out above. Given the country information, I find that the applicant does not face a real chance of harm as a practicing Hindu if he returns Sri Lanka.
[10] DFAT, “DFAT Country Information Report Sri Lanka”, 2 May 2024.
The Tribunal accepts that the Sri Lankan authorities remain highly alert to the potential re-emergence of the LTTE and to Tamil separatism in general. DFAT reports that the security services maintain a large presence in Tamil areas, and in-country sources reported they had extensive intelligence collection capabilities, including former LTTE members who worked as informants. The security services maintain countrywide ‘stop’ and ‘watch’ lists. Stop lists include names of people who have an existing court order, arrest warrant or order to impound their Sri Lankan passport. Watch lists include names of people whom the security services consider to be of interest, including for suspected separatist or criminal activities. In-country sources reported that the Terrorism Investigation Division (TID), Air Force intelligence, Navy Intelligence and the Special Task Force operate throughout the north-east. Arrests for suspected support of the LTTE and/or Tamil statehood periodically occur, albeit in small numbers.[11] The UKHO[12] also indicated that a significant role in Tamil separatist and/or LTTE activities is likely to be of adverse interest to the Sri Lankan authorities, and a number of factors need to be considered in determining what may be viewed as significant; and whilst the Sri Lankan government views the Tamil diaspora with a generally adverse mindset it does not regard the entire cohort as either holding separatist views or being politically active in any meaningful way. The USDOS in its most recent report on human rights in Sri Lanka indicates that Tamils throughout the country, but particularly in the north and east, reported security forces regularly monitored and harassed members of the Tamil community, especially activists, journalists, NGO staff and former or suspected former LTTE members.[13]
[11] DFAT, “DFAT Country Information Report Sri Lanka”, 2 May 2024.
[12] UKHO, “Country Policy and Information Note - Sri Lanka: Tamil Separatism”, 25 August 2022.
[13] USDOS, “2023 Country Report on Human Rights Practices - Sri Lanka”, 22 April 2024.
The applicant did not claim he has advocated in either India or Australia for the re-establishment of the LTTE or for Tamil separatism. He has attended Tamil community events in India, and with the [Organisation 1] in Australia, including Martyrs Days and Heroes Days. At the [Organisation 1] for Tamil commemorative events, he assisted by arranging chairs and decorations, including Tamil flags and flower garlands; helped serve food; and helped clean up at the end. He did not claim he had any other role with the [Organisation 1] or at the Tamil commemorative events, other than his attending and assisting as discussed. At the hearing, I raised with the applicant that, in summary, country information indicates that individuals advocating for Tamil separatism may attract the attention of the Sri Lankan authorities. He spoke about his involvement with the [Organisation 1], but he did not otherwise claim to have done anything related or connected to advocating Tamil separatism. This may suggest that, despite his involvement with the [Organisation 1], he may not be of any adverse interest to the Sri Lankan authorities if returned to Sri Lanka. In response the applicant said it was not like that and Tamil people are still fighting for their land and celebrating their Tamil events and the SLA come and disrupt it and put people in jail. It happened in Jaffna University and was still happening. If he were to go back, he would join in these functions people are having as they are a passion with him. Tamil people are protesting and fighting for their religion, race and language and he had the feeling he would definitely join them. Notwithstanding the applicant’s response, I consider the applicant’s activities with the [Organisation 1] in Australia, and his participation in such events in India, to be very low level and not of adverse interest to the Sri Lankan authorities. I accept that some of the events in Australia may have been filmed and photographed by persons connected to the Sri Lankan government. However, given the low-level nature of his assistance at, and participation in, such events, I do not accept that his appearance in any films or photos taken at those events would increase his profile with the Sri Lankan authorities.
I accept that the applicant may participate in some Tamil commemorative events if he returns to Sri Lanka. DFAT notes that the (now former) Wickremesinghe government has taken a more permissive approach to Tamil war memorialisation, and that Tamil war commemorative events passed largely without incident in 2022 and 2023, although there were reports of incidents of police disruption and arrests of nine Tamils at some Heroes Day events in November 2023.[14] Some Martyrs Day commemorative events in May 2024 were also disrupted.[15] Based on his participation in such events in Australia with [Organisation 1], I am satisfied he would do so in a very low-level capacity – that of participant who provides some basic assistance with set up and clean up. Given his level of participation, together with the country information, I find there is only a remote chance that the applicant may be arrested, detained, and/or harmed for participating in such events. However, based on the same country information, I accept that it is possible he may be subject to a period of monitoring if he does attend such events. I note case law suggests monitoring and reporting requirements, in general, are non-persecutory conduct.[16] In the particular circumstances of this case, and noting that DFAT reports Tamils who are monitored face harassment through official visits and questioning, but does not otherwise suggest they face any other harm, and also taking into account any general anxiety the applicant may suffer as a result, I do not consider that such monitoring and surveillance would amount to serious harm for the purposes of s 5J of the Act.
[14] DFAT, “DFAT Country Information Report Sri Lanka”, 2 May 2024.
[15] 'Sri Lanka: Crackdown Over Civil War Anniversary', Human Rights Watch (HRW), 23 May 2024.
[16] WAKZ v MIMIA [2005] FCA 1065.
That aside, the applicant does not have a profile that country information suggests would lead to a real chance of harm, whether for his Tamil race, language or religion, his father’s adverse interest to the Sri Lankan authorities in 1990, his participation and assistance with Tamil commemorative events in India and Australia or for any other reason, if returned to Sri Lanka, now or in the reasonably foreseeable future.
I accept that the applicant may be identified by the authorities as returned asylum seeker who has lived in India and Australia, and who departed Sri Lanka illegally, if returned to Sri Lanka.
DFAT reports[17] that:
[17] DFAT, “DFAT Country Information Report Sri Lanka”, 2 May 2024.
·The Immigrants and Emigrants Act 1949 (Sri Lanka) (IE Act) regulates exit from and entry to Sri Lanka. Returnees who departed Sri Lanka irregularly by boat are considered to have committed an offence under the IE. It is not a crime for a Sri Lankan citizen to seek asylum abroad.
·The age of criminal responsibility in Sri Lanka is 12 years. No charges are imposed against children under 12 years of age or those who were younger than 12 at the time of the alleged offence, including offences under the IE Act.
·Sri Lankans who fail to secure asylum in Australia return to Sri Lanka (Colombo Airport) on either commercial or charter flights. Some failed asylum seekers return, and are processed, in groups. They include both voluntary and involuntary returnees.
·On arrival at Colombo Airport, failed asylum seekers go through immigration, where their identities are verified. For returnees with a valid passport, this process is swift; for those returning on a temporary travel document, the process will take longer. According to in-country sources, failed asylum seekers returning on charter flights were processed much quicker, as their identities had been verified in advance.
·Depending on the circumstances of their departure from Sri Lanka (whether they departed legally or illegally), personal history (whether 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 and the 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.
·DFAT is not aware of recent returnees from Australia being detained for matters other than illegal departure, nor is DFAT aware of recent returnees from Australia being identified as being of interest because of an association with the LTTE or for activities undertaken or views expressed while abroad.
·Once their identities have been established by immigration, failed asylum seekers who departed Sri Lanka illegally are escorted to an immigration office at the airport for further questioning; this typically takes between 30 and 45 minutes. They are then transferred to the SIS and Navy Intelligence for questioning. This is a longer process as the authorities are specifically interested in information about the organisers and facilitators of the illegal venture in which they took part. Once intelligence agencies have completed questioning, these returnees are transferred to the CID for further questioning and then charged with breaking immigration law.
·Where returnees form part of a larger returning group, they might spend up to eight hours at the airport from the point of arrival (individuals forming part of a larger group cannot exit the airport until the entire group is processed. Staff constraints at the airport can also cause delays). If in a small group or returning individually, questioning will last considerably less (between three to four hours according to in-country sources).
·In-country sources reported on the lived experience of Tamils in Jaffna and Batticaloa who failed to secure asylum in Australia. All had arrived in Australia by irregular maritime means and returned voluntarily to Sri Lanka with IOM support. Most returned. These failed asylum seekers did not report being mistreated at Colombo Airport during the various stages of questioning and described the process as ‘straightforward.’ Recent returnees reported receiving simple questions from immigration officers and said that questioning by intelligence agencies and the police was less extensive than in the past, at least for those without a criminal record. DFAT is aware of a case where a returnee was reportedly questioned for three hours, although they were not mistreated. Once questioning was complete, most returnees were presented before a magistrate in Negombo, charged with breaking immigration law and bailed within 24 hours, at which point they were free to go.
·In-country sources told DFAT that recent returnees in Batticaloa (including in 2023 and 2022) did not have criminal cases brought against them for departing Sri Lanka illegally and, after passing immigration, were free to go (i.e. they were not questioned by intelligence or the police). In-country sources said this was at the discretion of individual immigration officers, and, in one case, reported that a returnee was able to bribe immigration officers to avoid being charged under the IE Act.
·The IOM meets voluntary returnees after immigration clearance at the airport and provides cash and onward transportation assistance. Legal assistance is provided by the Legal Aid Commission of Sri Lanka for those charged with illegal departure. The Australian Border Force provides involuntary returnees from Australia some cash to assist their return.
·DFAT is not aware of failed asylum seekers being subjected to mistreatment during processing at Colombo Airport and subsequent court hearings.
The applicant is likely to be identified as having departed illegally. However, given the applicant was only [age] years old when he, with his family, illegally departed Sri Lanka for India, I find that the applicant is not at risk of prosecution under the IE Act. Additionally, given his age at the time of that departure, I am not satisfied that he will be subject to anything more than a cursory questioning by the authorities about the organisers and facilitators of his illegal departure.
He does not have a passport so he will be returned on temporary travel documents. As indicated in DFAT’s information, this will entail some additional questioning and processing time at the airport. Although the applicant no longer has his original birth certificate, the Department has a copy of it, which the applicant would be able to obtain assuming he has no copy himself. Similarly, he has provided the Department, and the Tribunal with copies of other supporting identity material including his parents Sri Lankan NICs and Indian Sri Lankan refugee documents. Based on the country information and his circumstances including his lack of original identity documents, I find that the applicant will, at most, face up to 24 hours being processed and investigated at the airport and that there is not a real chance that he will be subjected to mistreatment during that time.
At the hearing, I raised with the applicant that country information also suggests that, if returned to Sri Lanka, he would be subject to processing, including questioning, at the airport. This may take up to 24 hours, depending on the circumstances. This process is applied to all returning asylum seekers and it appears there is no mistreatment involved in this process. This may suggest that, despite this processing and what amounts to a brief detention while it takes place, he will not otherwise be detained by the authorities on his return.
In response the applicant said he didn’t know about other people, but there was no one for him in Sri Lanka to identify him so it will be very difficult for him to identify himself. If he tells them he doesn’t have anyone, they will not believe him and they will definitely arrest him. There is less opportunity for him to identify himself to the authorities. Even if they were to release him, where would he go and live as he has no family there. For that reason, there is no chance for him to go and live in Sri Lanka. Additionally, the applicant’s legal made oral submissions at the hearing on this matter. She noted the applicant’s birth certificate had perished in a fire. Should he be returned to Sri Lanka it would have to be on an Australian travel document and this would bring the applicant to the attention of immigration officials as an irregular arrival. He would have to go through an identification process and because he has no family in Sri Lanka, he could be detained for longer than the regular or usual period. As there are no local authorities the officials at the airport could contact, she submitted that the country information did not cover how the applicant will truly be held at the airport while they try to establish his identity. Additionally, his questioning about his identity may go beyond just his identity to his activities and associations in India and Australia. During such questioning he may face inhuman and/or degrading treatment. She submitted that DFAT doesn’t directly cover this situation. She submitted that the Sri Lankan inquiry may get wider than just Immigration and his identity as in proving who he is it may bring in other authorities like the police. His reasons for not having any Sri Lankan ID may, due to the circumstances of how it was lost, be seen as suspicious or some type of cover up. It was submitted that establishing the applicant’s identity will be really tricky, and it may be suspected of being an assumed identity. Given the length of time since he left Sri Lanka at the age of [age], that he doesn’t have any other typical adult identity documents, together with the suspicion of officials against Tamils and those who left during the war, the applicant is not a typical post war, post 2012 asylum seeker. The country information doesn’t explain what the situation is for those with no identity documents. The question is would the Sri Lankan authorities accept the Australian government’s finding as to the applicant’s identity based on a temporary travel document. And, again, because he is from a Tamil family originating in the North, this would cause the Sri Lankan authorities to view the applicant with suspicion.

I do not accept the concerns raised by the applicant and in the submissions about his identity document situation resulting in differential or other, more serious treatment for the applicant. I have examined a range of country information about the processing and questioning of returnees at the airport by the Sri Lankan authorities, and their wider experiences on return.[18] This is an issue that has been reported on fairly extensively in recent years, many thousands of returnees from Australia, other Western countries, and India have returned and been processed in that time, and those returnees would have had a range of different travel and identity documents available for the inspection of the Sri Lankan authorities. None of the country information has reported that returnees with limited and/or no original identity documents have been subject to some extraordinary investigation process, been otherwise detained or arrested, or subject to any harm. Given this level of reporting and scrutiny of the returnee process at Colombo airport in available country information, I consider the absence of reports of those with more limited identity documents, like the applicant, being treated differently to other returnees is indicative that they are not so differently treated. I find that, other than the process taking longer as he will be travelling on temporary travel documents and noting that establishing a returnee’s identity is always part of that process, the applicant’s limited identity documentation will not entail the applicant being subject to a process, or treatment, different from the one outlined by DFAT in its most recent report.
[18] Including DFAT, "Sri Lanka - Country Information Report", 24 January 2017; DFAT, “DFAT Country Information Report - Sri Lanka”, 23 December 2021; UKHO, ”Report of a Home Office fact-finding mission to Sri Lanka”, 20 January 2020; ‘Returning Home: A Comparative Analysis of
Taking into account my findings about his profile, the country information, and also considering that he may be generally anxious in such circumstances, I am not satisfied that the applicant will be at a real risk of adverse attention or that he faces a real chance of harm from the Sri Lankan authorities when scrutinised and processed at the airport on his return to Sri Lanka. Nor do I consider that the applicant being processed and questioned for a period of up to 24 hours at the airport, also considering that he may be generally anxious in such circumstances, amounts to serious harm.
DFAT assesses that failed asylum seekers face a low risk of official harassment and societal discrimination on their return to Sri Lanka. DFAT’s assessment is based on reports from in-country sources about the lived experience of recent failed asylum seekers from Jaffna and Batticaloa. There was no evidence of official harassment or threats to their security, since returning to Sri Lanka, nor evidence of societal discrimination after returning to their communities. In-country sources reported recent voluntary returnees had received support from the IOM, as well as from their families and broader communities. Recent returnees had been welcomed by their communities and found employment; some had established businesses since returning to Sri Lanka and, in some cases, were employing members of the community. Similarly, in-country sources told DFAT they were not aware of failed asylum seekers, including those with suspected LTTE links, being subjected to official harassment, or official or societal discrimination following their return to Sri Lanka. DFAT also assesses that Sri Lankan Tamils returning from India, where the applicant lived between 1990 and 2010, face a low risk of official harassment or societal discrimination in Sri Lanka.[19]
[19] DFAT, “DFAT Country Information Report Sri Lanka”, 2 May 2024.
Sri Lanka fell into deep economic crisis in early 2022. Sri Lanka experienced severe shortages of necessities, including fuel, cooking gas, electricity and medicine, and experienced power cuts of up to 13 hours a day. These shortages and a collapsing currency drove record levels of inflation, making essential items, if available, out of reach for many Sri Lankans. In May 2022, Sri Lanka ran out of petrol and the government reported the economy ‘completely collapsed’. Sri Lanka defaulted on its sovereign debt for the first time and sought assistance from the International Monetary Fund (IMF). The IMF approved a four-year, USD2.9 billion rescue package in March 2023. As a condition of the IMF’s support and those of its foreign creditors, Sri Lanka is implementing structural reforms and fiscal austerity measures, including raising taxes and reducing spending. In-country sources told DFAT the economic situation had stabilised since 2022 and reported: essential items were available; inflation was in single digits; the rupee had appreciated; and power cuts had ended. With recoveries in exports, tourism and remittances, foreign exchange reserves have increased, and the government’s deal with the IMF has unlocked additional funding from the World Bank and other multilateral lenders. Nevertheless, cost-of-living pressures remain pronounced, particularly for low-income households, and general living standards have declined. Austerity measures were aggravating these pressures, for example, electricity prices had increased more than 140 per cent since August 2022. According to the Ceylon Electricity Board, over 500,000 customers had been disconnected from the power grid after failing to pay their bills. While the acute crisis was over, economic conditions remained challenging and the recovery process will likely be long. The World Bank said Sri Lanka’s economy contracted by 2.3 per cent in 2023, and as at April 2024 was projected to return moderate growth (2.2 per cent) in 2024, showing signs of stabilisation following severe economic downturn in 2022.[20]
[20] DFAT, “DFAT Country Information Report Sri Lanka”, 2 May 2024.
I accept that, if returned to Sri Lanka, the applicant will very likely be impacted by the, improved from 2022, but still ongoing difficult economic conditions. As discussed above, if returned to Sri Lanka, the applicant will very likely be returning to Colombo, Sri Lanka’s commercial capital. He may experience some additional difficulties until he obtains a Sri Lankan NIC, which he currently does not possess. He has no family in Sri Lanka, so he will be without any potential support from family. He also does not speak Sinhala. However, many Tamils live in Colombo, and (as discussed above) local communities may be welcoming of the applicant as a returnee. Additionally, he will receive some small level of assistance either from the IOM or Australia’s Border Force, depending on whether his return to Sri Lanka is voluntary or involuntary. The applicant has a range of work experience, including as [occupations]. While I accept that he may face hardship and that obtaining employment may be very difficult, I am not satisfied on the evidence that the situation is such or that the applicant’s prospects are so limited that there is a real chance that he would be denied the capacity to earn a livelihood of any kind or experience hardship to an extent that would threaten his capacity to subsist or otherwise lead to serious harm. Further, the country information indicates that the economic conditions in Sri Lanka impact the population and country generally. I am not satisfied that the difficulties or hardship the applicant may face because of the economic situation in Sri Lanka would amount to persecution for any s.5J reason under the Act.
DFAT assesses that a returnee faces a low risk of societal discrimination upon return to their communities and that there is a low risk of official and societal discrimination as a Tamil in Sri Lanka, including as a Sri Lankan Tamil who lived in India. I appreciate that low risk is not the same as no risk, however, considering all the applicant’s circumstances, including that he returns as a failed Tamil asylum seeker, that he is very likely returning to Colombo, I am not satisfied he faces a real chance of serious harm as a failed Tamil asylum seeker, who has lived in Australia and India, if returned to Sri Lanka, now or in the reasonably foreseeable future.
Considering the findings set out above, the Tribunal is not satisfied that if the applicant returns to Sri Lanka now or in the foreseeable future, he faces a real chance of persecution.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
I accept that the applicant may be subject to investigation and processing at the airport. The evidence does not suggest that the treatment the applicant may be subject to when investigated and processed at the airport, is intended to inflict pain or suffering that can reasonably be regarded as cruel or inhuman in nature, severe pain or suffering, or that it is intended to cause extreme humiliation, as required in the definitions of cruel or inhuman treatment or punishment or degrading treatment or punishment. There is no suggestion that the applicant faces the death penalty for any reason. I do not accept that there is a real risk that the applicant would face being arbitrarily deprived of life or tortured for any reason. I am not satisfied there is a real risk of significant harm on this basis, even when considered in combination with any general anxiety he may experience at that time.
If he returns to Sri Lanka, it is possible that the applicant may be subject to a period of monitoring by the Sri Lankan authorities for participating in Tamil commemorative events in Sri Lanka. Although such monitoring may be harassing in a general sense, I am not satisfied on the evidence, including any general anxiety on the part of the applicant, that it will amount to severe pain or suffering, pain and suffering that could reasonably be considered as cruel or inhuman in nature, or that it amounts to extreme humiliation. I am not satisfied that it amounts to the death penalty, arbitrary deprivation of life or torture. I am not satisfied that any period of monitoring and surveillance that the applicant may be subject to after his return to Sri Lanka amounts to significant harm as defined in ss 36(2A) and 5 of the Act.
The country information indicates that the conditions and hardship currently being felt across Sri Lanka arise from the economic crisis impacting the country, rather than an act or omission intended to cause pain or suffering that could reasonably be regarded as cruel or inhuman, severe pain or suffering or extreme humiliation as required by the relevant definitions of significant harm. I am not satisfied on the evidence that any difficulties or hardship the applicant may experience due to these conditions amounts to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment within the meaning of the Act. I am not satisfied that there is a real risk of the applicant being arbitrarily deprived of his life or the death penalty being carried out.
Otherwise, I have found that there is not a real chance of harm for this applicant for any reason were he to return to Sri Lanka. As ‘real risk’ and ‘real chance’ involve the application of the same standard,[21] he also does not face a real risk of any harm in Sri Lanka. I am not satisfied that the applicant faces a real risk of significant harm in Sri Lanka.
[21] MIAC v SZQRB (2013) 210 FCR 505.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mark Oakman
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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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the Experiences of Sri Lankan First- and Second-Generation Refugee Returnees from India’, Refugee Survey Quarterly, 2023, 42, 180–203, 9 March 2023; DFAT, “DFAT Country Information Report Sri Lanka”, 2 May 2024; Ministry of Foreign Affairs of the Netherlands, “Thematic Country of Origin Information Report: Tamils in Sri Lanka”, June 2024; and ‘LKA201968.E, Sri Lanka: Situation and treatment by authorities of returnees, including failed asylum seekers and family members of persons who have left Sri Lanka and claimed refugee status; treatment of returnees upon arrival at international airports, including failed asylum seekers and people who exited the country without the required documentation (2022-August2024)’, Research Directorate, Immigration and Refugee Board of Canada, 14 August 2024.