1915972 (Refugee)

1915972 (Refugee) [2024] AATA 4343 (22 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Kathleen Clare Coffey (MARN: 1067518)
CASE NUMBER: 1915972

COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Bryn Butler
DATE:22 August 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 22 August 2024 at 12:14pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion – association with the Liberation Tigers of Tamil Eelam (LTTE) – particular social group – failed asylum seeker – detention – physical assault – torture – online political activities – promoting Tamil separatism – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
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] November 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 on 14 January 2011, with a negative outcome on 20 April 2011.
·An independent merits review (IMR) application made on 11 May 2011 with a negative outcome on 27 April 2012.
·An appeal lodged with the Federal Magistrates Court of Australia [in] June 2012. The Minister withdrew [in] May 2012.
·The applicant was invited to apply on 27 August 2018 for a Safe Haven Enterprise Visa (SHEV), which is the subject of this review application.
He applied for the protection visa on 19 September 2018. The delegate refused to grant the visa on 3 June 2019 on the basis that they did not find the applicant engaged Australia’s protection obligations.
The applicant appeared before me on 5 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 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.
PROTECTION 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’s representative provided a written submission prior to the hearing. In the submission, she outlined that the applicant fears harm on the basis of his Tamil race, imputed political opinion in support of the LTTE given his previous involvement with the LTTE and against the Sri Lankan authorities including the EPDP; and his membership of a particular social group of people who have returned from the West and/or as a failed asylum seeker.
Applicant’s background
The applicant was born in Jaffna in Sri Lanka. He completed primary school around [year] and then became a fisherman to assist his father. He married his spouse in 2007 and they have one [child]. His wife and [child] currently live with his mother-in-law and brother-in-law in his mother-in-law’s home in Jaffna. He has a brother who lives in [Country 1]. His parents and other siblings live in Vanni, Sri Lanka.
Prior to coming to Australia, the applicant travelled to India in July 2010 by plane, and then travelled by boat to Australia. He arrived in Australia at Christmas Island [in] November 2010. Since arriving in Australia, he has worked in Australia but said that his visa status has prevented him from finding stable employment. He has noted that his mental health has deteriorated because of his separation from his family.
Applicant’s activities in Sri Lanka and departure from Sri Lanka
The applicant has consistently claimed that when he was working as a fisherman, he and his father were detained with a group of fishermen by the Sri Lankan Navy for 14 days. He claimed that this incident occurred in 2008, and that he was assaulted during this time.
He said that the Navy questioned whether he was from the LTTE and whether the fishermen were smuggling weapons for the LTTE and/or collecting intelligence. He said that he told them he was a common man, that fishing was his living, but they beat him with the handle of their gun. He said that he didn’t know why he was released after 14 days, but everyone was released then.
I asked him whether he had any involvement with the LTTE. He said that because he lived in an LTTE controlled area, they had to help the LTTE, and as a fisherman he transported [product 1] from India. He had also attended some meetings as part of a fisherman association which worked with the LTTE. He said that it was expected that he attend and there was a roster for those who had to work with the LTTE, and he was one of five people who usually had to work on Fridays and perform a security watch. I asked what a security watch involved, and he said that there would be a central point that they had to watch, and if they saw anything abnormal occurring there, such as a helicopter or a ship approaching, one of the people in their group would alert the LTTE. I asked whether he had any other involvement with the LTTE. He said that his first cousin died in the war and was in the LTTE, so he was considered part of a martyr’s family.
Following the incident when he was detained, he claimed that he ceased fishing to avoid further interrogation and mistreatment by the Sri Lankan Army.
He has also consistently claimed that he set up a business in Jaffna selling [crop 1] as a form of employment, after he ceased fishing. I asked the applicant to describe the business. He said that [crop 1] were grown and harvested on the outer parts of Jaffna, and he would buy the [crop 1] and sell them in his shop which was in a busy area near a [location] in the centre of Jaffna. He said that the shop was profitable because of the location.
The applicant said that a man known by the name [Mr A] asked him to lend him money, and that the applicant’s difficulties began when he asked [Mr A] to return the money to him. He said that he lent [Mr A] 55,000 rupees, but [Mr A] refused to return the money to the applicant. I asked him why he would agree to lend 55,000 rupees to [Mr A] and what the money was for. He said that he has a helping nature, and as his business was doing well, he could lend the money. He said that [Mr A] had recently started a business in the area selling [crop 1] and [products]. I asked him why he would lend money to a potential competitor, given he was also selling [crop 1] in the area. He said that he didn’t see him as a competitor because the area had many shops and he already had loyal customers.
The applicant said that [Mr A’s] uncle was in the Eelam People's Democratic Party (EPDP), which is a Sri Lankan political party and was a pro-government paramilitary organisation.[1] He said that [Mr A] used his uncle and his uncle’s associates to threaten the applicant, and they came to his shop with a gun and said that the borrowed money would not be returned, and that he should also not run his shop anymore (meaning that the applicant should vacate the shop). The applicant did not know of [Mr A’s] connection to the EPDP when he loaned him the money.
[1] Department of Foreign Affairs and Trade, Country Information Report – Sri Lanka (2 May 2024) (DFAT Report), para 2.82.
Following the threats from [Mr A] and his uncle that he should close the shop, the applicant avoided going to his shop and hid in various locations including on his boat and his grandparents’ house in [Town 1]. His wife remained in Jaffna with her mother. He said that he entrusted his shop to his brother and his friend, [Friend A], who also ran a [similar] shop in the same area. I asked the applicant to explain his connection to [Friend A]. He said that [Friend A’s] shop was in the same group of shops and when [Friend A’s] stock ran out, he would sometimes assist the applicant in his shop. He described [Friend A] as a friend. I note that the applicant has variously described [Friend A] as an employee, an associate and a business partner.
The applicant claimed that [Friend A] was killed by members of the EPDP, and his body was found between the applicant’s shop and [Friend A’s] shop. The applicant has claimed that he considers that [Friend A] was killed because he assisted the applicant. After [Friend A’s] death, the applicant and his brother abandoned his shop and the EPDP took control of the shop. The applicant said that at the time his wife and [child] stayed with his mother-in-law, and they faced difficulties because the EPDP went there to look for him, and they killed his pet dog. I asked him how he knew the EPDP had killed his dog. He said that his neighbours had told him that the EPDP and Army went to his house, looking for him and asked people for him, and they killed his dog.
I asked the applicant why [Mr A], his uncle and the EPDP would have wanted to find him and harm him. He responded that they had visited his home asking for him, killed his friend, and killed his dog. He elaborated that their hatred of him could be combination of two things: i) he asked for the money back, other people witnessed him asking for it, and that embarrassed [Mr A]; and ii) his business was running successfully. I asked him why they would target him because his business was running successfully. He said that the EPDP had a weekly magazine, but he refused to buy it and sell it in the shop. I put to the applicant that it may be surprising that they would target his business because he refused to buy their magazine. He reiterated that it was the combination of things: he asked for the money back from [Mr A], he was not interested in buying the magazine, and in addition his first cousin fought for the LTTE and died in the war. He said that as the EPDP worked with the army, they would know that his cousin was in the LTTE, and for all of those reasons, the EPDP targeted him.
The applicant stated that he was not a supporter of the EPDP. I asked the applicant why he didn’t like the EPDP. He said that the EPDP joined hands with Singhalese people, kidnapped Tamil people, committed violence and took money from shops in the area in Jaffna. I asked him why the EPDP would target Tamils as they are a Tamil organisation. He said that the LTTE was fighting for a separate nation for Tamil people and the EPDP were enemies of the LTTE because the EPDP had assisted the Sri Lankan government. The applicant said that while he was not a member of the LTTE, he was a member of a merchants’ association in Jaffna which supported the LTTE.
The applicant said that he feared for his life because of the threats from [Mr A’s] uncle and [Friend A’s] death, so he made arrangements to depart Sri Lanka and go to India. He travelled to India by plane from Colombo airport. He said that he travelled from Jaffna to Colombo by car, and when he reached checkpoints, the agent asked him to remain inside the car while they attended to the checkpoint personnel. Once in Colombo, he stayed in a hotel while the agent obtained a passport for him and a visa to enter India. I asked him whether he exited Sri Lanka regularly at the airport such as going through passport control. He said that he recalls the agent joining him in the airport and recalls speaking to an officer at the airport.
He said that the reason for leaving Sri Lanka was to protect himself. After spending approximately two months in India, he found out about a boat coming to Australia through his uncle. He said that Australia was not his original destination, and that he had originally thought he would ask his wife and child to join him in India, but his agent told him that he could not work in India. An agent told him about Australia and advised him to take the boat journey to Australia.
Applicant’s family’s situation in Sri Lanka since his departure in 2010
The applicant has claimed that his wife and his brother-in-law have faced significant difficulties since his departure. His brother-in-law and wife both reside in the same house in Jaffna, with the applicant’s mother-in-law.
He has claimed that his wife does not have a peaceful life and that she has been harassed two to three times, although when he has asked her about her experiences, she starts screaming so he has obtained information about those experiences from his mother-in-law.
He has claimed that his wife disappeared in 2013, and he could not speak to her for a period of time. There has been some confusion over the period of time the applicant’s wife was detained for. However, he maintained that she was taken for two weeks, which is consistent with his statutory declaration dated 13 September 2018. His mother-in-law told him that his wife was beaten, sexually tortured, had wounds on her neck and cigarette burns. He said that his mother-in-law told him that when she was taken by the Sri Lankan Army, they had said they were looking for him.
At hearing, the applicant also referred to a separate incident which occurred around 2016 when he claims that the EPDP took his wife from the family home for three to four days. He said that his mother-in-law ran a shop from the family home and that his wife was taken. His mother-in-law had to obtain money from relatives overseas to pay a bribe to secure her release and since that incident his mother-in-law has taken his wife for counselling for her mental health. I asked him how he knew the EPDP had taken his wife, and he said that his mother-in-law had told him, as well as a friend and a cousin. I asked him why the EPDP would want to take and harm his wife in 2016, which was six years after he had departed Sri Lanka, because of a dispute over a loan and a shop, considering he had not pursued the debt and the EPDP had acquired his shop after he departed Sri Lanka. He responded that the EPDP is working with the army and have negatively influence society. He said that if they want money to purchase alcohol, they will harass Tamil people and act against the interests of the Tamil people by acquiring the property of Tamils, and sexually harass women.
I accept that the applicant dislikes the EPDP and considers that they are a negative influence on Sri Lankan society, but said I would like to know why they wanted to harm him, given they appeared to have achieved their goals in relation to him by taking over the shop and not returning the money. He said that they want to harm him because they are frustrated that he has escaped, they had a lot of anger towards him and wanted to kill him. He said that he doesn’t know whether [Mr A] was involved in the harassment of his wife but generally it is the EPDP which harasses people.
I put to the applicant that it is quite a long time to hold a grudge, as it is has been over 15 years since he was in Sri Lanka. He responded that one day in the bus stand, [Mr A] took his ID card and beat him, but he pushed him away and did that in front of other people, so this is another reason why [Mr A] holds a grudge towards him. He added that when he refused to give his shop to them, they developed a grudge against him. I pointed out that they obtained the shop, and queried why would they continue to hold a grudge. He responded that Jaffna is still under a lot of military presence from the Sri Lankan army, the EPDP is working with them and control Jaffna. He noted that they put Buddhist statutes in Tamil areas and cause problems in Tamil areas, so he still faces a safety risk from the EPDP and the Sri Lankan army.
In relation to the applicant’s brother-in-law, he said that the authorities came to the family home in Jaffna (his mother-in-law’s house), looking for the applicant. When they couldn’t locate the applicant, they beat him and as a result he has a fracture in his leg, a metal plate had to be inserted and he is unable to walk normally. He said that his brother-in-law has been taken by the police two to three times and has spent time in police custody.
I asked him to tell me about these incidents. He said that the first time, the police came looking for the applicant but because he was not there, they took his brother-in-law to the police station, and he was kept for two to three months. I asked the applicant why the police would take his brother-in-law if he wasn’t there. He said that it is due to their frustration at not being able to locate him. I asked why they would want to locate him. He reiterated that they had asked for his shop, but he did not give it to them, and he had asked [Mr A] to pay back money. He also said that when the army came to his home, he was not there. I queried why they would want to take his brother-in-law because he wasn’t there. He responded that that’s how the authorities operate in Sri Lanka, and that if the person they want is not there, they would take a family member and harass them.

I asked the applicant to confirm who came to his house and took his brother-in-law. He said it was the police. He then said the first time his brother-in-law was arrested, he said there was no reason given for the arrest, however the second time, was because they were looking for the applicant and took his brother-in-law instead and the third time was in connection to the brother-in-law’s auto business. In relation to the auto business, the applicant said that there is a common place where drivers bring all the autos and when someone wants a ride, people go there to take an auto. He said that the EPDP wanted to influence the auto market and prioritise drivers who were part of the EPDP and auto drivers who were there previously wanted to voice their concern about that. He said that there was a fight between the EPDP and the other auto drivers, and his brother-in-law’s auto was damaged. He said that after the third incident, his brother-in-law spent two to three months in custody, was released, but when he was released, they found out he had been beaten and his leg was broken.
I asked the applicant what problems his brother-in-law is facing now. He said that in the past three to four months, the police came and took him, but they didn’t give any reasons. He said that his mother-in-law told the police that he cannot walk by himself so asked why they would take him, but the police pushed her, and she fell on timber and got hurt in back of head. He said that his wife had told him, his mother-in-law had told him, and his wife’s uncle had told him about this incident. He confirmed that his brother-in-law was now at home. I noted that it wasn’t clear that this incident (or any of the incidents) related to the applicant. I put to the applicant that the police may have been interested in his brother-in-law because of his brother-in-law’s disagreement over the EPDP’s influence in the auto sector. In his statutory declaration dated 13 September 2018, he claimed that his brother-in-law had destroyed EPDP posters, and that he had been assaulted at the auto stand. He said that the first two incidents, where his brother-in-law, was taken were related to him (the applicant) even if the later incident was not related to him.
I queried whether his siblings had faced problems, such as his brother who was living in Sri Lanka. He said his brother who remains in Sri Lanka is married and lives in Vanni (away from Jaffna), and is a fisherman. He confirmed that his brother has not faced any difficulty. I asked him why his brother had not faced any difficulty, whereas his brother-in-law had, if the authorities, such as the EPDP, were interested in him, and that they could go to Vanni. The applicant said that he thinks it is because his brother is now married, lives away from the family in Jaffna, and minds his own business.
Applicant’s activities in Australia
The applicant said that he has attended martyr day celebrations in Australia but hasn’t done so recently. He thought the last time he attended was in 2016 because of his poor mental health. The applicant claimed that he faces harm as a Tamil from the north-east of Sri Lanka. I discussed with the applicant that, according to DFAT, Tamils who are not politically active are not generally of interest to the authorities although monitoring of Tamils in the north-east of Sri Lanka may continue, and that the security forces monitor and question individuals and groups suspected of promoting Tamil statehood or pursuing politically sensitive issues related to the war.[2] He responded that he sometimes makes posts on his [social media] account about his political views, noting that the Tamil population having a separate Tamil nation is the solution, and his last post was three months ago, but prior to that he frequently posted online. I asked him why he had not previously referred to making [social media] posts about the political situation in Sri Lanka. He said that he thought the [social media] posts would not be relevant, and maintained that he fears harm from the EPDP, Sri Lankan authorities and [Mr A].
[2] DFAT Report, paras 3.13, 3.16.
He noted that in the posts he paid tribute to the LTTE leader on his birthday, posted about Remembrance Day, and has spoken the against the former president Rajapaksa and what he was doing to the Tamil people.
I asked him what his motivation was for making the posts online. He said that the Singhalese people and the Sri Lankan government should respect the freedom in the north-east of Sri Lanka, the Tamil language should be a priority language, and that Buddhist statutes should not be erected in the north-east of Sri Lanka.
After the hearing, the applicant provided untranslated screenshots of posts made on [social media], which were accompanied by a description of the posts. I understand the posts were made using his personal account on various dates, from 2014 to 2022 about the LTTE, Martyrs’ Day in Australia,[3] and the history of Tamils in Sri Lanka and the need for sovereignty. Some of the posts indicate that he has reshared some of his earlier posts. One of the posts indicates that he attended a Martyrs’ Day event in [Suburb 1] in 2019 (although I note that he claimed the last time he thought he had attended was in 2016).
Tamil race
[3] Also known as Maaveerar Naal or Great Heroes’ Day: DFAT Report, para 3.15.
The applicant is identifiable as a Tamil due to his appearance, language, area of origin, and his name. As noted above, he fears harm on the basis of his race. In the written submission, it is claimed that the Sri Lankan Authorities and the Sinhalese majority harass, intimidate, and mistreat Tamils throughout the country, particularly in the Northern and Eastern provinces.
At the hearing, the applicant referred to his views about Buddhist statutes being placed in the north as an example of discrimination against Tamil people and of the EPDP joining forces with the Singhalese to oppress Tamil people living in the north of Sri Lanka.
CONSIDERATION AND FINDINGS
I accept that the applicant is a Tamil male from Jaffna, that he departed Sri Lanka by plane from Colombo airport using his passport. I accept that he went to India and from India he travelled by boat to Australia. The applicant has consistently claimed that he travelled from India, after spending two months there.
EPDP and [Mr A]
The applicant’s primary claim, and the reason for his departure from Sri Lanka, relates to his involvement with [Mr A] and [Mr A’s] connection to EPDP. I accept that, based on the applicant’s consistent testimony throughout his migration history, he operated a business selling [crop 1] in Jaffna. The applicant was able to explain in detail his [crop 1] business, where he obtained [crop 1] from, and appeared to take pride in his ability to run the shop, maintain it and develop good relationships with his customers. He said that he was successful in his business, and while others were able to run the shop for him when he had to hide, he ran it profitably and kept it tidy. I accept that the applicant opened a shop selling [crop 1] and the shop was located in a central area of Jaffna. I also accept that he opened the shop to avoid being at sea as a fisherman because he wanted to avoid trouble from the Navy.
The applicant has consistently claimed that he lent money to a person named [Mr A] and that [Mr A] failed to return the money. While I had some doubts as to why the applicant would loan money to someone who would potentially be a competitor, I accept the applicant’s response that his business was successful and he did not view [Mr A] as a competitor. He also spoke about how [Friend A] would assist him with his shop when [Friend A’s] stock had run out for the day, indicating that the shopkeepers assisted each other with their businesses and that the area had sufficient foot traffic to support multiple businesses.
I accept that the applicant received threats from [Mr A] and his uncle, and I accept that the applicant asked [Mr A] to return his money but [Mr A] failed to do so, and relied upon support from his uncle in the EPDP as an excuse to not repay the money. I accept that, based on the applicant’s consistent testimony, [Mr A] and his uncle told the applicant to stop asking for the money to be returned, and that he would no longer run the shop and threatened him with a pistol. This prompted the applicant to have his brother and [Friend A] to run the shop.
The applicant’s evidence about the threats he received was unrehearsed, although his account of the incidents and steps he took lacked some of the details he has previously provided in his earlier interviews and statements. For example, I note that the applicant referred to, in his written statement, making a complaint to the police about [Mr A] and his uncle, and also making a complaint to the EPDP. The applicant did not refer to taking these actions at the hearing. However, I understand that the events in question took place over 15 years ago. The applicant’s primary claim to have been threatened by [Mr A] and his uncle has remained consistent, as has his claim to have lent money to [Mr A] and [Mr A’s] failure to return the money, which led to the dispute. I accept that the applicant lent money to him, that he failed to return the money and that [Mr A] and his uncle threatened the applicant to stop asking for the money and that they wanted him to stop running his shop.
The applicant considered that he was personally in danger and so hid to avoid being located by [Mr A]. However, his wife did not go into hiding with him and his brother ran the applicant’s shop (with [Friend A]). While I accept that [Friend A], who ran a shop near the applicant’s, was killed, I do not accept that he was killed because he was assisting the applicant run the shop or because he was the applicant’s friend or associate. The applicant’s brother was also involved in running the shop. If [Mr A], his uncle and/or the EPDP wanted to harm the applicant, it would have been open to them to shoot his brother, a blood relative, rather than another shopkeeper who also ran a shop in the same area and who assisted the applicant when he could. The applicant said that [Friend A’s] body was found between the applicant’s shop and his own shop, and that he had seen a photo. The applicant said that [Friend A’s] shop was a [similar] shop in the same shopping strip, although he did not earlier indicate that it was a neighbouring shop. I find that [Friend A] was killed because the EPDP wanted to take control of the shopping area and wanted to take his shop. I do not accept that [Mr A], his uncle or the EPDP would kill another shopkeeper as a form of revenge for the applicant asking for his money back or because they wanted him to stop running his shop, in circumstances where they could have harmed his brother or wife, given they knew their locations, particularly as his brother continued to operate the shop for the applicant. Following the shooting, the applicant and his brother did not return to the shop and the applicant said that the EPDP took control of his shop. He said that he was not aware of what happened to [Friend A's] shop. The killing of [Friend A] would have allowed them to pressure or frighten other shopkeepers to give up their shops. The threats made in 2009 and 2010, some 15 years ago, allowed the EPDP members to achieve their goal to take over the shop and [Mr A] didn’t have to repay the money to the applicant. For these reasons, I do not accept that [Friend A’s] killing was directly related to the dispute between the applicant and [Mr A] over the return of the loaned money.
The applicant has claimed that his brother-in-law, who lives with his wife and mother-in-law, has faced difficulties and harm in Sri Lanka because of him. However, I do not accept that his brother-in-law’s difficulties are because of his connection to the applicant. In his statutory declaration dated 13 September 2018, he claimed that his brother-in-law was attacked in early 2016, after he destroyed EPDP posters with his friends, and in early 2018, he was beaten by a group of men at the three-wheeler (auto) stand in Jaffna, and taken to hospital. He goes on to say that his brother-in-law was arrested and imprisoned, and has not been seen since. At the hearing, the applicant said that his brother-in-law has been taken three times by the police from the family home. At the hearing he said the first time he was arrested, there was no reason given for the arrest but the second time was because they were looking for the applicant and took his brother-in-law instead and the third time was in connection to the brother-in-law’s auto business. The applicant also stated that the most recent time his brother-in-law was arrested, no reason was given and that his mother-in-law was pushed by the police and injured. The applicant stated that his brother-in-law is now at home. The applicant did not refer to his brother-in-law being taken because of his connection to the applicant in his 2018 submission or that he was ever taken with no reason given, rather the reason for the brother-in-law’s arrest and police involvement was because of his action of opposing the EPDP by destroying their posters and there was a fight at the three-wheeler stand. I accept that the applicant’s brother-in-law has been detained by the police and was involved in a fight because of his opposition to the EPDP and their members operating their auto business in an area his brother-in-law operated. However, given the different accounts of the brother-in-law’s treatment by the authorities, I do not accept that his arrest was motivated because of his brother-in-law’s connection to the applicant, and I find that the applicant has embellished his account at the hearing by linking his brother-in-law’s arrest to him. I find that if the police or EPDP had taken his brother-in-law because of his connection to the applicant, the applicant would have referred to this in his 2018 statement. Further, if the police or EPDP wished to harass someone because of their frustration with the applicant, I do not accept that they would target the applicant’s brother-in-law, considering the applicant’s brother and his parents reside in Sri Lanka in Vanni. It would be open to them to harass his direct blood relatives. I find that, as his brother-in-law has had a dispute with the EPDP, this accounts for his interactions with the police, rather than any connection with the applicant.
The applicant also claimed that his wife was mistreated and abused on two occasions because of her connection to him. At the hearing he referred to an incident in 2016, and a prior incident in 2013. In his statutory declaration dated 13 September 2018, he refers to his wife and [child] going missing in February 2013 while his wife was taking their [child] to school. He states that they were detained for 15 days by the Sri Lankan Army and EPDP in 2013, and that his mother-in-law paid a ransom for her release. He does not refer to his wife being taken from the family home, or to an incident in 2016. In a post-hearing submission, it was submitted that the applicant was of the belief that he had disclosed the issues faced by his family in 2016 previously, however understands he may have been confused with the 2013 issues. The statement in 2018 was made closer in time to the claimed 2016 incident than the applicant’s evidence given at hearing. I do not accept that the applicant would forget, or omit details, of his wife’s abduction, such as whether she had been abducted on two occasions rather than one. I have considered whether the applicant’s mental health issues may have resulted in him omitting details in 2018, however, he has referred to his brother-in-law’s incident in 2016, and therefore appeared able to recall details of incidents happening to his family in Sri Lanka. Accordingly, I do not accept that his wife was abducted from the family home in 2016 and find that he has again embellished details of his claim at hearing.
Notwithstanding my finding about the claimed 2016 incident, I do accept that the applicant’s wife was taken by the Sri Lankan Army and/or EPDP in 2013 and that this time would have been extremely difficult for the applicant as he was unable to contact his wife for over a year after her abduction, and that his wife experienced shame at the treatment she endured while she was detained and did not feel comfortable speaking to the applicant. The applicant does not discuss the incident with his wife and appears to have limited knowledge of what happened. DFAT reports that sexual harassment of women by military personnel was known to occur in the north in the immediate post-war period, but was now rare.[4] I accept that his wife and [child] were taken by the Sri Lankan Army and they would have been particularly vulnerable given the applicant was in Australia. I accept that during her abduction, the Sri Lankan Army may have enquired about the applicant’s whereabouts, and asked whether he was involved in the LTTE. However, his wife and [child] were released following payment of a bribe, and I find that she has not faced further incidents since this time, which indicates that the authorities have not, after 2013, maintained an ongoing adverse interest in the applicant’s wife for any reason.
[4] DFAT Report, para 3.148.
In summary, I accept:
·The applicant lent money to a person known as [Mr A] and [Mr A] refused to repay the money.
·[Mr A’s] uncle was involved in the EPDP and threatened the applicant, telling him to stop asking for the loan to be repaid and that he should vacate his shop.
·[Friend A] was shot and killed while he was assisting the applicant run his shop, however this was not because of the applicant’s dispute with [Mr A] and the EPDP. The applicant’s dog was killed at nighttime.
·The applicant departed Sri Lanka legally.
·The applicant’s wife and [child] were abducted and released after 15 days in 2013. They were released after his mother-in-law paid a ransom.
·The applicant’s wife was not abducted in 2016.
·The applicant’s brother-in-law has been arrested in relation to disputes over EPDP involvement in the auto business. These arrests have not been because of his connection to the applicant.
I accept that when the applicant departed Sri Lanka, it would have been an extremely stressful time for him, given he had been effectively forced to close his business and had lost the money he had loaned to [Mr A].
When I asked the applicant to explain why the EPDP or [Mr A] would want to harm him now and whether they would still hold a grudge against him, he said that they want to harm him because they are frustrated that he has escaped, they had a lot of anger towards him and wanted to kill him, because he had embarrassed [Mr A].
I do not accept that [Mr A] or his associates, or the EPDP would wish to harm the applicant 15 years after the incident. Given [Mr A] achieved the goal of securing the applicant’s shop and not repaying the money, I do not accept that any embarrassment caused by the applicant requesting that he repay the money in 2008-2009 would lead to an ongoing interest in harming the applicant now. The matter was essentially closed and the applicant’s family in Sri Lanka have not been harassed or harmed in connection with the incidents of 2008-2009 with [Mr A] and the EPDP. I note that the applicant’s wife was abducted and released in 2013 and has not faced further difficulties from the Sri Lankan authorities. Accordingly, I do not accept that the applicant faces a real chance, or real risk, of harm because of the incident with [Mr A] from [Mr A], the EPDP or any Sri Lankan authorities.
I have considered whether the EPDP or Sri Lankan Army would have an interest in the applicant more broadly because of the incident between the applicant and [Mr A], and [Mr A’s] uncle.
The EPDP is a former Tamil paramilitary groups which sided with the government during the civil war and fought alongside state forces against the LTTE.[5] The EPDP operates in the north, primarily in Jaffna, it was formed in 1990, and entered politics in 1994.[6] Its founder, Douglas Devananda, has represented the Jaffna District in parliament since 1994 and held multiple ministerial positions since 2000. Devananda is closely associated with the Rajapaksas. Devananda currently serves as Minister of Fisheries. The applicant was aware of the EPDP’s involvement in politics, and referred to Devandanda’s position in parliament. The EPDP is the joint second largest Tamil party in the current parliament, with two seats.
[5] DFAT Report, para 2.82.
[6] DFAT Report, para 2.84.

DFAT reports that in-country Tamil sources had informed them that the EPDP no longer posed a threat to former members of the LTTE and/or those Tamils who opposed them, including Tamils who had returned from seeking asylum abroad.[7] The group does not maintain an armed wing: they have long ceased their paramilitary activities, and are very much part of the democratic political process.[8] DFAT is not aware of recent reports of violence attributed to the EPDP, and assesses that the EPDP represents a low security risk in the north-east, and that Tamils face a low risk of harassment and violence from the EPDP.[9]
[7] DFAT Report, para 2.85.
[8] DFAT Report, para 2.85.
[9] DFAT Report, paras 2.85, 2.86.
I have considered whether the EPDP would have an ongoing enmity towards the applicant because of what occurred prior to the applicant’s departure from Sri Lanka. The dispute between the applicant and [Mr A] centred around a loan, and control of his shop. [Mr A’s] connection to the EPDP, his uncle, meant that the applicant was deprived of his money and shop, and the matter ended in [Mr A’s] favour. I find it difficult to accept that the EPDP would maintain an ongoing interest in harming the applicant given he did not threaten the EPDP or its members in the past (other than to request [Mr A] repay the money). The applicant has indicated that he refused to stock the EPDP’s magazine in his shop, however, I do not accept that this would mark the applicant as someone who is strongly opposed to the EPDP, and this was over 15 years ago. The information referred to above indicates that the EPDP has ceased their paramilitary activities and are part of the democratic political process, and there are no recent reports of violence attributed to them. I do not accept that the EPDP would have any interest in the applicant now because of the dispute with [Mr A]. I also do not accept that the EPDP or authorities would target the applicant because of his connection to his brother-in-law, or that this heightens the risk for the applicant. The applicant’s brother-in-law has faced charges for his involvement in an incident over three-wheelers in Jaffna. This does not concern the applicant, and the applicant has not claimed to be a three-wheeler driver. While I accept the applicant may return to a home where one resident (his brother-in-law) has had disputes with the EPDP, it is a separate incident related to territory of three-wheelers/autos and does not concern the applicant. If the authorities wish to punish the brother-in-law, his brother-in-law is at home and I do not accept that they would target the applicant because of his brother-in-law’s activities. Accordingly, I do not accept that the applicant faces a real chance, or real risk, of harm from the EPDP because of the incidents with [Mr A] or because of his connection to his brother-in-law.
Returnee
Prior to making his protection visa application in 2018, the applicant claimed that he departed Sri Lanka legally. In his visa application and at the hearing, the applicant has claimed that he cannot be sure whether he departed legally or illegally because the arrangements for his travel were made by his uncle and an agent.
The Immigrants and Emigrants Act (1948) (the I&E Act) governs exit from and entry to Sri Lanka.[10] No offence under the I&E Act applies for returnees who departed Sri Lanka legally. 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.[11]
[10] DFAT Report, para 5.36.
[11] DFAT Report, para 5.36.
I have considered whether the agent somehow facilitated his travel, such that his departure was not recorded with the Sri Lankan authorities, and whether he has committed an offence under the I&E Act. I do not accept that, where the applicant used his own passport and travelled by plane through the country’s main airport that he could have bypassed exit controls. Given the applicant departed Sri Lanka using his own passport at Colombo airport and had a visa for travel to India, I find that the applicant departed Sri Lanka legally. Accordingly, I find that the authorities in Sri Lanka would be aware of his departure in 2010 and would not consider that he has committed an offence in relation to his departure from Sri Lanka.
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.[12] DFAT reports that,[13] 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. Those who departed Sri Lanka legally and unsuccessfully sought asylum abroad do not face any court processes in relation to their departure, as they did not break any law.[14] The applicant does not have a criminal or terrorist background, and I find that once processed at the airport, he would be free to return to his home in Jaffna, although for the reasons below, I accept that he would be monitored and faces a real chance of serious harm for his political views and membership of a particular social group, described below.
LTTE involvement and support
[12] DFAT Report, para 5.72.
[13] DFAT Report, para 5.39.
[14] DFAT Report, para 5.43.
The applicant has claimed that in 1995 he was required to assist the LTTE to build bunkers. The applicant was [age] years old at the time. He claimed that between 1997 to 2007, when he was working as a fisherman, he assisted the LTTE, by transporting goods such as [product 1] and reporting activity to the LTTE. He was also a member of a merchants’ association which supported the LTTE. I acknowledge he has also made [social media] posts in support of the LTTE while he has been in Australia. As noted above, screenshots of these posts were submitted to the Tribunal after the hearing.
I accept that the applicant, when he was a fisherman, provided some support to the LTTE by assisting them transport goods, such as [product 1] and reporting activity to the LTTE. I also accept that he assisted the LTTE when he was a child, although given his age, I find that his involvement was minimal. The applicant’s account of his time as a fisherman and assistance he provided to the LTTE appeared unrehearsed and is consistent with his previous statements about the type of assistance he provided to the LTTE, which he was required to do as a fisherman in an LTTE controlled area.
I also accept that the applicant was detained by the Navy on multiple occasions, that he was assaulted once by the Navy and detained for up to 14 days, and that this experience prompted him to find an alternative way to make a living. The applicant has consistently claimed that he was detained by the Navy and mistreated. The applicant’s experience is also consistent with country information about the situation in Sri Lanka at the relevant time, where it is reported that ‘everybody’ in the north-east of Sri Lanka had a connection with the LTTE through interactions with the LTTE administration or being an LTTE member themselves.[15] While he said he was not aware of the reason he was released by the Navy after 14 days, he noted that others were also released, and he has previously claimed (in his submission to the IMR) that a village leader intervened to secure their release, I accept that, due to the passage of time, some of the details of the applicant’s experiences may not be readily recalled.
[15] DFAT Report, para 3.93
I have considered whether the applicant, as a Tamil male from the north, and as someone who supported the LTTE when he was a fisherman would mean that he would be of interest to the Sri Lankan authorities.
The LTTE was comprehensively defeated in 2009, and is no longer active.[16] 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.[17] Despite this, people are reported to generally travel within the Northern province (where the applicant is from) freely.[18] The north remains overwhelmingly Tamil and there are few, if any, Sinhalese in Jaffna (where the applicant is from).[19]
[16] DFAT Report, para 2.75.
[17] DFAT Report, para 2.75.
[18] DFAT Report, para 2.76.
[19] DFAT Report, para 3.10.
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.[20] 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 Jaffna and as a Tamil from the north.
[20] DFAT Report, para 3.16.
I have also considered whether his attendance at Martyrs’ Day events in Australia and social media posts would mean he would be of interest to the authorities, and whether they would become known to the authorities. I have considered whether the applicant’s political views and actions will mean that the authorities would be interested in him, if he were to return to Sri Lanka. The applicant has voiced his political views online, including posting about his attendance at a Martyrs’ Day ceremony in [Suburb 1], has made posts celebrating the leader of the LTTE’s birthday and the death of the father of the LTTE leader.
The applicant’s representative, in her post-hearing submission, referred to the May 2021 UK Upper Tribunal decision which found that Tamils engaged in activities in the UK found that a range of political activities such as attending meetings and demonstrations, holding flags or banners displaying the LTTE emblem, attendance at commemorative events, meaningful fundraising, any presence on social media, signing petitions may trigger official harassment upon return.[21] It was submitted that it is plausible that video and or photos of commemorations held in Australia are placed on social media by members of his ethnic community, further increasing the chances that the authorities are aware of the applicant’s attendance at such events and his social media posts.
[21] Upper Tribunal
According to the Freedom House ‘Freedom on the Net 2023’ report on Sri Lanka, young Tamils have been detained over their social media posts (often for memorialising relatives who died during the civil war).[22] The report refers to examples of arrests made in 2021. Freedom House also noted that branches of the Sri Lankan police, the Criminal Investigation Department (CID), and Terrorism Investigation Division (TID) are reported to monitor the online space,[23] and following the Easter Sunday attacks in 2019, the government indicated its intention to intensify monitoring and surveillance. I note that these reports, and the UK Upper Tribunal decision, refer to monitoring during the previous government’s regime in Sri Lanka.
[22] Sri Lanka: Freedom on the Net 2023 Country Report | Freedom House ( Section C3.
[23] Sri Lanka: Freedom on the Net 2023 Country Report | Freedom House ( Section C5.
In relation to the current situation, DFAT reports that in-country sources said the level of state hostility toward Tamils had eased under the Wickremesinghe Government,[24] 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. Notwithstanding the improvement, 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.[25]
[24] Ranil Wickremesinghe became President in July 2022: Sri Lanka: Ranil Wickremesinghe elected president by MPs, 20 July 2022, DFAT Report, para 2.4.
[25] DFAT Report, para 3.86.
I have considered whether the applicant would be considered a LTTE member and would be monitored upon return. He provided some support to the LTTE when he was a fisherman and I accept he was detained by the Sri Lankan Navy. He was also a member of a merchants association that supported the LTTE. DFAT considers ‘low-profile’ former LTTE members to include former LTTE combatants; people employed in administrative or other roles in service of the LTTE; and people who provided non-military support to the LTTE during the war.
Given his previous activities in Sri Lanka where he provided some support to the LTTE, I accept that there is a real chance that he would be considered to have provided support to the LTTE during the war and would be considered to be a ‘low-profile’ former LTTE member in the context of DFAT’s assessment. DFAT assesses that known low-profile former LTTE members face a low risk of monitoring and harassment on the basis of their previous association with the LTTE. DFAT assesses that, 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.[26]
[26] DFAT Report, para 3.85.
In respect of monitoring in Sri Lanka, DFAT reports that security forces continue to monitor public gatherings and protests in the north-east, and security forces monitor and question individuals and groups suspected of promoting Tamil statehood or pursuing politically sensitive issues related to the war.[27] This includes those organising and participating in civil war commemorations.[28] DFAT reports that authorities continue to monitor Tamils in the north-east, particularly Tamils suspected of promoting statehood, Tamils who are engaged in politically sensitive issues related to human rights or the war (including those organising and participating in civil war commemorations) and Tamils who previously belonged to the LTTE.
[27] DFAT Report, para 3.13.
[28] DFAT Report, para 3.13.
DFAT also reports that members of pro-independence diaspora groups particularly those that glorify the LTTE may ‘come to the attention of the Sri Lankan authorities due to participation in public demonstrations or other activities deemed to be promoting Tamil statehood in their countries of residence.[29] According to in-country Tamil sources, the authorities monitor the social media of Tamils who live abroad who fit this profile.[30]
[29] DFAT Report, para 3.99.
[30] DFAT Report, para 3.99.
In relation to whether the applicant would be subject to monitoring, I accept that he has spent a considerable time abroad outside Sri Lanka and he was involved with the LTTE when he was a fisherman. I accept that these factors would mean the applicant may be of some interest to the authorities. In addition, I accept that he may attend Tamil events, commemorating the war, given he has done so in Australia. In addition, while I have not accepted that the applicant faces a real chance of serious harm in relation to his dispute with [Mr A] and the EPDP, I do accept that the circumstances of his departure from Sri Lanka following a dispute with the EPDP, an entity which supported the Sri Lankan authorities against the LTTE, may elevate the applicant’s profile and the authorities’ interest in him. This is because, by not complying with the demands of the EPDP, he may have been perceived to have against the aims of the EPDP and to support the LTTE and/or the aims of the LTTE. He has also made social media posts while in Australia, which further elevate his profile. Given the applicant’s particular profile, I accept that the authorities may be interested in him, and he may be subjected for monitoring for separatist activity.
Accordingly, I accept that there is a real chance that the applicant would be monitored for separatist activity on his return to Sri Lanka given the particular aspects of the applicant’s profile, I have accepted that there is a real chance that if the applicant is monitored on return as a low-profile former LTTE member and as someone returning from abroad, his online [social media] activities, attendance at Tamil commemorations in Australia and his political views in support of a separate Tamil state may become known the authorities.
However, I do not accept that monitoring, as described above, 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.
DFAT assesses that 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. It is illegal to glorify the LTTE or commemorate the birthday of LTTE leader Prabhakaran (26 November) in Sri Lanka. The public display of LTTE symbols, including the LTTE flag and images of Prabhakaran, is likewise prohibited. Those that defy these bans (including through online channels) run the risk of arrest and detention for suspected terrorism offences.
I have accepted that the applicant would be monitored on return. During the monitoring process, I find that there is more than a remote chance that his activities in Australia would be discovered, if they are not already known to the authorities. Given the applicant has made a number of [social media] posts, including ones which display LTTE symbols, images of Prabhakaran and commemorating the birthday of Prabhakaran on 26 November, and was previously in a dispute with the EPDP (so may be perceived to be against the government), I find that the applicant faces a real chance of being arrested and detained in Sri Lanka.
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.
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.[31] The Human Rights Commission of Sri Lanka is reported to receive hundreds of complaints of physical and/or mental torture in custody annually and in 2022, 24 reports were received in Jaffna.[32] In December 2023, the HRCSL reported torture was ‘a recurrent phenomenon in Sri Lanka’.[33] 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.[34] 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.[35]
[31] DFAT Report, para 4.26.
[32] DFAT Report, para 4.23.
[33] DFAT Report, para 4.23.
[34] DFAT Report, para 4.29.
[35] 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, I accept that the applicant, if he is arrested and detained, he may endure significant physical harassment. 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 because of his particular profile and political opinion: ss 5J(4)(b), (c).
I have considered the applicant’s motivations when making posts on [social media] and attending Tamil commemoration in Australia. Subject to s 5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Section 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.
The applicant said that he attends such events and posts on [social media] because his view is that the government, and in particular the Singhalese, should respect the freedom of Tamils in the north-east, the Tamil language should be a priority language, and they should not put Buddhist statutes in north-east as they are traditionally Tamil areas. I accept that the applicant has not engaged in the conduct for the purpose of strengthening the claim to be a refugee. The posts span a period of time from 2014 to 2022 and do not appear to coincide with particular points in the applicant’s migration history. Further, the applicant has consistently put forward that his primary claim was because he feared harm from [Mr A] and the EPDP because of the incidents in 2010. He considered that the posts were not relevant to his main claim. If he had made the posts for the purpose of strengthening his claim, I consider that he would have brought them to the Tribunal’s attention earlier than he did. He also spoke of his political views during the hearing, and noted that the EPDP and Sri Lankan authorities did not work in the interests of the Tamil people. Accordingly, I have not disregarded the applicant’s conduct in Australia.
I have also considered whether the applicant could modify his behaviour to avoid harm. Section 5J(3) provides that a person does not have a well-founded fear of persecution if he or she could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country. However, this does not apply to a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or that would conceal an innate or immutable characteristic, or to a modification that would require the person to alter his or her political beliefs, or conceal his or her true political beliefs. Given the applicant fears harm on the basis of his political beliefs, he is not required to alter his political beliefs or conceal his true political beliefs.
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).
The applicant is a citizen of Sri Lanka and does not have a right to enter and reside in any other country. He does not have a right to enter and reside in a safe third country. Accordingly, s 36(3) does not apply.
I accept that the applicant faces a real chance of serious harm from the authorities in relation to his political views and membership of particular social groups, relating to his profile as someone who has assisted the LTTE in the past, a Tamil male who has spent 15 years abroad and has engaged in political activity such as attending Tamil celebrations and events in Australia and who has posted his political views online including commemorating the LTTE leader’s birthday, in combination with his profile as someone who has had a dispute with the EPDP.
I am satisfied therefore that the applicant has a well-founded fear of persecution for reasons of his political opinion and his membership of particular social groups, described above, when considered cumulatively, if he returns to Sri Lanka in the reasonably foreseeable future.
Conclusion
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

100. 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.
…

(Immigration and Asylum Chamber): KK and RS Sri Lanka [2021] UKUT 0130 (IAC), 27 May 2021.

[2024] AATA 4343

22 August 2024

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

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