1918210 (Refugee)

1918210 (Refugee) [2024] AATA 4391 (22 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Nimalini Ambikaipalan
CASE NUMBER:  1918210
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Victoria Price
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 12:06pm

CATCHWORDS
REFUGEE – Protection Visa – Sri Lanka – race – an ethnic Tamil – religion – Catholic –political opinion – a member of the LTTE – applicant had reasonable reasons for the delay in raising his LTTE claim – mental ill health – there is a real chance that the applicant will suffer serious harm – satisfied that the applicant is a person in respect of whom Australia has protection obligations – applicant’s fear of persecution is well-founded – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 423, 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

The applicant is a male, [age] years of age. He stated that he is a citizen of Sri Lanka from the Northern Province, an ethnic Tamil, and an adherent of the Catholic faith.
The applicant arrived in Australia on [date] March 2010. He has had extensive interactions with the immigration system since that time including a Refugee Status Assessment (RSA),[1] multiple reviews with the Independent Merits Reviews (IMR),[2] a Protection Obligations Evaluation (POE),[3] and multiple Court cases.[4]
[1] Decision made on 4 June 2010.
[2] Decisions made on 13 January 2011 and 27 September 2014.
[3] Decision made on 6 November 2014.
[4] [deleted].
On 26 July 2018 the applicant lodged this application for a protection visa with the Department of Home Affairs (the Department). The delegate of the Minister refused to grant the visa to him under s 65 of the Migration Act 1958 (Cth) (the Act) on 24 June 2019, finding he did not satisfy the requirements of s.36(2) of the Act. This is an application for review of that decision.
The applicant appeared before the Tribunal on 25 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.
The applicant was represented in relation to the review. His representative attended the Tribunal hearing. The applicant’s wife also attended the hearing to support the applicant and provided evidence.
CLAIMS AND EVIDENCE
The applicant’s evidence regarding his identity, family, religion, background, work history and arrest and his arrest in Colombo in 2008, have been consistent throughout his interactions with the Department, Courts, various review bodies and the Tribunal.
However, to the Tribunal, the applicant has clarified some of his past claims, stating some claimed events did not occur. Significantly, he also advised that he was in fact a member in the intelligence/political wing of the Liberation Tigers of Tamil Eelam (LTTE) in the past. His current claims were set out in his written submissions and oral evidence to the Tribunal.
The applicant claimed he would be arrested, detained and/or otherwise harmed if returned to Sri Lanka because he is a male Tamil from the Northern Province of Sri Lanka, and due to the following factors taken individually or cumulatively:
·His intelligence and political activities with the LTTE.
·His active involvement in the ([ORGANISATION 1]), a proscribed Tamil diaspora group.
·His siblings’ status as refugees in [Country 1].
·His mental ill health and Catholic religion.
·As he will return as a failed asylum seeker.
The following material was before the Tribunal:
·The applicant’s Sri Lankan identity documents.[5]
[5] A certified copy of the applicant’s National Identity Card; and a copy of his Sri Lankan Birth Certificate translated to the English language.
·Legal submissions to the Department and the Tribunal, dated 21 September 2018, 21 March 2019, and 27 June 2024.
·Statements from the applicant dated 1 May 2010, 21 March 2019, and 25 June 2024.
·Evidence of the applicant’s employment in Sri Lanka with the [Company 1] and [Company 2].[6]
·Evidence of the applicant’s arrest in Sri Lanka (the warrant receipt).[7]
·Evidence relating to the applicant’s mental health.[8]
·Evidence of the applicant’s activities in Australia with the [ORGANISATION 1].[9]
·A statutory declaration from [Mr C] dated 25 June 2024 in which he attests that he was in the LTTE with the applicant in Sri Lanka. They met on three occasions during the course of their LTTE work, with the applicant providing information to him in his capacity as member of the political wing.
·Letter of support from the applicant’s partner, [Ms B], dated 27 June 2024.
·Evidence relating to refugee status of the applicant’s siblings in [Country 1].[10]
·Newspaper articles and country information relating to the circumstances in Sri Lanka.[11]
·Birth Certificate of the applicant’s daughter and photographs depicting the applicant and his wife at their temple wedding and with their daughter.
·Evidence of [Ms B]’s visa status in Australia.[12]
[6] Certified copies of an employment identification for [Company 1] in the name of the applicant issued on 2 July 2004; and a certified copy of an identity card from the [Company 2] in the applicant’s name with an expiry date of 1 June 2006.
[7] Copies of a ‘Receipt for Arrested Persons’ dated 16 December 2008, in Sinhalese and the English translations.
[8] Report dated 17 November 2018 from the applicant’s treating registered psychologist; and a letter from the applicant’s current treating psychiatrist dated 14 June 2024.
[9] A letter from [name], President of the [Organisation 1] dated 12 June 2024; photographs of the applicant’s participation in a Tamil sporting event and an LTTE/Tamil commemorative event; photographs of props the applicant made for commemorative events; and evidence of his financial support to the [Organisation 1] for these events.
[10] [Country 1] Residence Permits for the applicant’s sister [name], and brother, [name], both of which refence their status as [refugees][Country 1]
[11] Easwarab Rutnam, ‘UNHCR puts Sri Lanka’s rights record back in the spotlight’, The Morning, 17 September 2018; ‘Sri Lankan Asylum Seekers forcibly deported from Australia’, The Business Standard, 11 September 2018; United States Department of State (USDOS), ‘Sri Lanka 2017 Human Rights Report Executive Summary’,; Article in Tamil purporting to be about the Rape and Torture of Tamils by the Sri Lankan Army’; United Nations General Assembly Report dated 8 February 2019; Reort from Government of Sri Lanka, ‘Sri Lanka; Killing of Aid Workers of NGO Action Contre La Faim (ACF) in Muttur’, 11 August 2006; Dr Linonel Bopage et al, ‘Information Report Sri Lanka January 2018’, Kainos Print, February 2018; -Human rights Council, Report from the Office of the United Nations High Commissioner for Human Rights, Promoting reconciliation, accountability and human rights in Sri Lanka, 25 February -22 March 2019; Amnesty International, ‘UN Human Rights Council should maintain its scrutiny of Sri Lanka as justice remains elusive 20 March 2019’; Phil Miller, Court finds Sri Lankan soldier guilty of threatening Tamil protesters in London, Morning Start 28 February 2019; Court says Brigadier Priyanka Fernando not covered by Vienna Convention, Morning star 2 March 2019; AP, Dozens of men describe rape, torture by Sri Lanka government 4 March 2019; Prima Minister admits to Sri Lanka Committing War Crimes? adaderanna .ik. news, 17 February 2019; Don’t give additional time to Sri Lanka mothers of disappeared persons tell the UN, The Peoples Dispatch 26 February 2019; Lanka Mulls Withdrawing From UNHCR Resolution 23/02/2019 By Sri Lanka Brief; Sri Lanka's Tamils are at imminent risk after Rajapaksa's return Aljazeera 29 October 2019; Tamils reluctant kingmakers in Sri Lanka turmoil. The straits times, 2 November 2018; Kate Lyons, 'I want the world to know': Tamil men accuse Sri-Lanka of rape and torture, The Guardian 9 November 2017; Kate Cronin-Furman Are Sri Lankan officers ordering soldiers to sexually assault Tamil detainees? By The Washington post November 16, 2017; Jack Moore, ‘Sri Lanka’s Tail Fears Bloody return of Lord of the Rings’ Mahinda Rajapaksa, The National, 5 November 2018; Anbarasan Ethiranjan, ‘Sri Lanka Conflict: Why Can’t you find our sons?’, BBC News, 10 September 2018; Tamil Reporter Harassed by Sri Lanka’s anti-terrorism police’, Reporters without borders for freedom of information, ’24 October 2019; Freedom from Torture, ‘Where does torture happen’, 22 February 2019; Iain Marlow and Anusha Ondaatjie, ‘Why Sri Lanka Risks Return to Violence’, 13 December 2018; Nicholas Keung, Judge Slams Immigration officers overzealous approach in Tamil refugee cases, The Star, 31 March 2018;Brian Senewiratne, ‘Sri Lanka The Human Rights Crisis In The Tamil North & East – An Appeal For International Intervention’, Columbo Telegraph Parts I- IV, 16 March 2018; Steve Crawshaw, ‘Report, Seventeen Year old Tamils Tortured in Sri Lanka’, 24 February 2019
[12] Letter from the Department confirming the grant of her Temporary Activity, Subclass 408, visa on May 2023, valid until May 2025.
At the hearing, the applicant confirmed his identity and familial and biographical information. He also provided further details regarding his background in Sri Lanka, current circumstances in Australia, and his claims for protection. This evidence is discussed below.
Applicant’s background
The applicant was born in [City 1] in the Northern Province of Sri Lanka and is one of five children. He has two younger sisters, a younger brother, and an older brother. His younger brother, and one his younger sisters have been granted protection in [Country 1]. His parents and other siblings continue to reside in [City 1]. He remains in contact with his family.
The applicant completed primary and secondary school in [City 1], though it was disrupted due to the conflict. He did not undertake further studies. He was employed with the [Company 1] between July and December 2004, and [with] the [Company 2] between May 2005 and June 2006.
In Australia, the applicant has worked in a [company], and as a [occupation] in a [workplace]. He is currently [self-employed].
The applicant formed a relationship with [Ms B], and they were married in a Hindu ceremony in May 2017. However, they have not yet legally registered their marriage. They have a daughter who was born in [year]. They reside together in rental accommodation.
Evidence relating to applicant’s protection claims.
The applicant and his family are ethnic Tamils from [City 1] in the Northern province of Sri Lanka. He joined the LTTE in 2002 during peacetime. His family and others had been displaced and he wanted to help the community. The applicant undertook military training at a camp [for] several months.
After he completed basic training, he was sent to [Town 1] to be further trained in intelligence gathering and political affairs. He was taught how engage with people in the community and promote the LTTE. On completion he was given the relevant LTTE identification and returned to [City 1] and attached to a propaganda group under a named commander. His commander was responsible for four units.
Among other things, he promoted the LTTE to the local communities and organised commemoration events. He resided with his unit and reported back to his commander at the completion of every task. In 2004 he was asked to obtain work as a [occupation] and provide information regarding [details deleted] got work with the [Company 1] and [Company 2].
As to his claim that he was shot while [working], this did not happen. His friend was shot, but the applicant was not present at that time. He was in Colombo at the time of the incident, having been sent there by the LTTE in 2006. The initial plan was for the applicant to undertake further intelligence training and then to be sent overseas to provide support from the diaspora, but the plan fell through. While he did undertake training with a named LTTE commander, he did not go overseas. Instead, he worked in [a workplace], providing [support] when required. This largely consisted of [deleted].
The applicant stated he was arrested once in December 2008. The authorities located him at the [workplace], took him back to his uncle’s home where he resided where they searched his belongings. He was then transferred to the police station. It was at that point the authorities issued the ‘warrant receipt’. When explored further by the Tribunal, the applicant stated this was not a document issued by the court or the police prior to arresting a person. Rather, it is issued on the spot to confirm an arrest had taken place and that a person had been taken into custody.
The applicant was detained and questioned for seven days, during which time he was mistreated and tortured. At that point they were suspicious he was either a member or supporter of the LTTE, but they had no proof. A such, his brother was able to pay a bribe for his release. After he was released from custody his uncle used an agent to arrange for documents permitting his travel to India. He remained there before coming to Australia.
In Australia, he has volunteered with the [ORGANISATION 1] since 2012. He helps organise their LTTE memorial events, including by contributing financially, and by constructing props to be used at the events. When asked the applicant showed the Tribunal numerous photographs on his phone, depicting the props he built for a recent event. He would continue to engage in this activity on return to Sri Lanka as he believes in commemorating the LTTE and Tamils who died.
Since he has been in Australia the authorities have continuously sought information about him from his parents. They had received regular visits from SLA members who live in the nearby base. The most recent visit was in 2022.
Two of his siblings have been granted asylum in [Country 1]. His brother left Sri Lanka in 2004 to avoid the conflict and his younger sister left in 2019. He is unsure, but believes they told the [Country 1] authorities about his [work] as part of their protection claims. He will be questioned about their refugee status on return to Sri Lanka.
He suffers from mental ill-health and will be ostracised and mistreated for this reason on return. He will be unable to get work if people find out about his illnesses.
Evidence of [Ms B], the applicant’s partner
[Ms B] stated that her family is also from [City 1] in the Northern Province of Sri Lanka. They are Tamil and follow the Hindu faith. Her parents and sister remain there but she has two brothers residing [overseas].
The applicant was friends with another of her brothers. After the applicant came to Australia, they stayed in contact. Her brother became ill, and the applicant talked to him regularly throughout his health troubles, including when he was in hospital in Colombo awaiting an organ transplant. Unfortunately, her brother died before the transplant could go ahead. The applicant provided his condolences to [Ms B] and they began talking on the phone.
[Ms B] came to Australia to undertake [study] and the applicant picked her up from the airport. Their friendship turned into a relationship, and they were married in a Hindu ceremony in Australia but have not yet legally registered their marriage. They have a daughter and reside together as a family. However, her parents do not support their marriage because, although the applicant was friends with her brother, they of different faiths and different castes.
[Ms B] is aware of the applicant’s involvement with the LTTE and understands his reasons for doing so. She can also attest to his ongoing involvement with the [ORGANISATION 1] and participation in events such as Heroes Day. He is a good and kind person and cares about the rights of others. He is struggling with his mental health due to the trauma he has experienced. She fears he will not get appropriate treatment in Sri Lanka. His Post-Traumatic Distress Disorder (PTSD) causes agitation, including in stressful situations, though he is not violent. She fears for his life if he were to return to Sri Lanka and believes he will be killed.
Application of s 423A of the Act.
In accordance with s 423A of the Act, if the applicant raises a claim or presents evidence that was not raised before the primary decision was made, and the Tribunal is satisfied that there is not a reasonable explanation for failing to do so, the Tribunal is to draw an unfavourable inference regarding the credibility of that claim or evidence.
As noted above, the applicant has raised a new claim to the Tribunal that he was a member of the LTTE. He also clarified evidence that he was not shot in his capacity as a [occupation], and that he was arrested on only one occasion. The remainder of his previous claims and evidence was true.
In written and oral submissions to the Tribunal it was stated that he had not previously raised his membership of the LTTE in any prior interaction with the various review bodies, the Court and/or to the Department due to fear that he would receive an adverse security assessment, he would be returned to Sri Lanka, his information would be disclosed to Sri Lankan authorities, and/or he would be detained indefinitely. Moreover, his previous lawyer advised that him not to disclose his LTTE membership. For the same reasons, he had also previously provided claims that were not true. He felt unable to provide the correct information earlier due to fear, and a belief he had to maintain consistency, but wanted the Tribunal to assess his true circumstances.
Aspects of the applicant’s stated reasons for providing this new information are not without foundation. Information confirms that between 2010 and 2015, numerous Sri Lankan asylum seekers, including some who had disclosed connections to the LTTE, received adverse security assessments and were held in detention for significant periods of time.[13] This included some individuals determined to be refugees at risk of persecution and could therefore not be returned home. There is no suggestion that asylum seekers in this situation were returned to Sri Lanka involuntarily, or that their details were disclosed to the Sri Lankan authorities, but it is understandable why the applicant may have been concerned about these possibilities.
[13] Ben Doherty, ‘A phonecall, a meeting, then indefinite detention: the refugees at the mercy of Asio’, Guardian, 28 November 2015; Shalailah Medhora, Refugees released from detention as negative Asio assessments reversed | Refugees | The Guardian, 11 January 2015; Robert Mogran, Australia: ASIO assessments condemn refugees to indefinite detention - World Socialist Web Site (wsws.org), 29 May 2012; Ben Saul, ‘Dark Justice: Australia’s Indefinite Detention Of Refugees On Security Grounds Under International Human Rights Law’, Melbourne Journal of International Law, Vol 13. 2012 pages 1-44; Karen Barlow, ‘Tamil detainees speak out after visas refused’, ABC News, 29 August 2011; George William ASIO's new power over asylum seekers needs proper checks (unsw.edu.au), 20 May 2014; Shalailah Medhora, 'Refugees kept in detention despite being told they had security clearance’ |The Guardian, 12 January 2015; and Asylum Seeker Resource Centre, ‘Myths-facts-solutions’. asrc.org.au, page 9.

In the circumstances, I find it believable that the applicant would be uncertain and fearful about raising his involvement with the LTTE and of correcting the inaccuracies of his previous statements. On the information before me, I also consider plausible that his previous legal advisors may have advised him not to disclose this claim. I find that the applicant’s explanation for not raising this claim earlier in the protection visa process is reasonable.
I am not satisfied that there is not a reasonable explanation for the failure to provide this evidence prior to the making of the primary decision. I find that s 423A does not apply such that I am to draw an unfavourable inference regarding the credibility of that claim or evidence.
OVERVIEW OF 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.
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 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 there is a real chance the applicant will be persecuted on return to Sri Lanka or, if not, whether there is a real risk he will suffer significant harm if removed from Australia to that country.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of reference, area of return and s.36(3)
On the documentary and oral evidence provided by the applicant, I accept that he is a national of Sri Lanka, a Tamil, and a follower of the Catholic faith.
The applicant was born in [City 1] in the North of the country. He has also resided in [Town 1] and Colombo. His parents and two of his siblings, with whom he remains in contact, continue to reside in [City 1]. His wife is also from [City 1] and her parents currently reside there. Given the applicants’ previous residence in [City 1], and his ongoing familial links to that area, I find that this is the area to which he would return in the future.
There is no evidence before me to indicate that he has a right to enter and reside in any other country apart from Sri Lanka and I am not satisfied that he does. I find that s 36(3) does not apply in this case.
Applicant’s credibility
Previous decision makers have noted concerns with the applicant’s credibility.[14] I have considered all the information provided to me regarding his prior evidence in earlier proceedings. I have also considered all the material in the Department’s file and have listened to the applicant’s interview with the Department delegate. I now have further information before me including the applicant’s oral testimony, his wife’s evidence, the supporting material, and additional independent information. On the totality of that material, I have reached a different conclusion regarding the applicant’s credibility.
[14] IMR, RSA and the Department delegate: see the Protection Visa Decision Record made on 24 June 2019; and details set out in the legal submission to the Tribunal dated 27 June 2024, pages 6-10.
The delay in raising his claimed LTTE membership, and his acknowledgment that aspects of his previous evidence were not true are significant. They are relevant to assessing the applicant’s credibility and are, on their face capable of undermining that credibility. However, I am also mindful that, in accordance with relevant guidelines, the Tribunal must approach its credibility assessment reasonably and having regard to the applicant’s particular circumstances.
Relevant guidelines pertaining to credibility assessment expressly state that where subsequent claims or evidence is different to that earlier provided, consideration must be given to whether an applicant has been unwilling to reveal the whole of their story because of feelings of shame, or for fear of endangering relatives or friends in their home country or due to mistrust of persons in positions of authority.[15] It is the overall consistency in an applicant’s account which must be considered.[16] Moreover, in my view, an applicant before the Tribunal should be given a real and meaningful opportunity to correct any inaccurate or untrue statement previously provided.
[15] Department of Home Affairs, ‘The Protection Visa Processing Guidelines’, at 15.4.5; Administrative Appeals Tribunal, ‘Migration and Refugee Division, Guidelines on the Assessment of Credibility ‘at [3.1] and Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection’, reissued February 2019 at [198].
[16] Administrative Appeals Tribunal, ‘Migration and Refugee Division, Guidelines on the Assessment of Credibility’ at [28].
In this case, I have found above that the applicant had reasonable reasons for the delay in raising his LTTE claim, and for providing inaccurate evidence. These reasons clearly fall within the circumstances set out within guidelines. I also note that the applicant corrected his account of his own accord and without prompting by the Tribunal. Significantly, except for the admitted differences in his claims, the evidence he provided regarding his background and experiences in Sri Lanka is consistent with information given throughout his interactions with the department, courts, and various review bodies. In accordance with the above guidelines, I find his overall account to be consistent.
I also give weight to the fact that his oral evidence to the Tribunal was highly detailed and was spontaneous and presented in a manner indicative of genuine lived experience. His evidence is also supported by witnesses and documentary evidence and is consistent with country information as discussed further below. I note that is for the applicant to make their case and the Tribunal is not required to accept an applicant’s claims uncritically, and I have not done so in this case. I have tested the evidence before me and I find that the delay in raising his claimed LTTE membership and his admission that aspects of previous evidence were untrue do not undermine his claims, or his overall credibility. I find that the applicant is a credible witness.
Mental health concerns
The applicant has provided medical reports confirming he has been diagnosed with PTSD, anxiety and Major Depression. His symptoms include tearfulness and irritability. He is on medication but requires ongoing treatment. I accept that the applicant has these conditions and that he will require treatment into the foreseeable future.
Refugee Assessment
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.
Background in Sri Lanka
I have accepted above that the applicant is a Tamil from the Northern Provinces of Sri Lanka. He claimed to the Tribunal that he joined the LTTE in 2002 during peacetime and was involved in political and intelligence activities.
At the height of its influence in Sri Lanka the LTTE controlled and administered a significant part of the Northern and Eastern provinces. [17] Everyone residing in those areas, as well as those in the outer fringes of the locations under their control necessarily had contact with the LTTE and its civilian administration as part of their daily life. Their financial and taxation unit collected funds from residents, business, and those in the diaspora, to support LTTE activities, often through means of extortion and intimidation.[18]
[17] Department of Foreign Affairs and Trade, 'DFAT Country Information Report Sri Lanka', 2 May 2024 (DFAT 2024 Report) at [3.72] –[3.75].; Office of the United Nations High Commissioner for Human Rights (OSIL), "Report of the OHCHR Investigation on Sri Lanka (OISL) "16 September 2015 (OSIL Report); and United Nations High Commissioner for Refugees (UNHCR), "UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka", 1 December 2012 (UNHCR 2012 Report).
[18] Joanne Richards, ‘An Institutional History of the Liberation Tigers of Tamil Eelam (LTTE), The Centre on Conflict, Development and Peacebuilding’, November 2014, pages 48-51; and DFAT 2024 Report at [3.72] – [3.75].
The LTTE also included military, intelligence, political, financial, and administration branches, and relied on both voluntary and forced recruitment.[19] There were several LTTE training camps, including one in Erimalai in Pallai.[20] Broadly, LTTE training consisted of four months of weapons training, as well as training in battle and field craft, communications, explosives, and intelligence gathering.[21] There was a dedicated intelligence training facility under the command of Master Mathaven, who trained operatives, spies, sleeper cells, the black tigers and provided hi-tech communication equipment.[22]
[19] DFAT 2024 Report; UNHCR 2012 Report; and OSIL Report.
[20] OSIL Report page, 138.
[21] South Asia Terrorism Portal, (SATP) ‘Liberation Tigers of Tamil Eelam’, undated, org, accessed 13 August 2024, page 2.
[22] ‘LTTE’s Secret Intelligence Branches- TOISS and the MI’, World Press, 30 December 2023; The Tamil Tigers’ Intelligence Wing: TOSIS, Greydynamics. Com, 12 July 2022; and Kagusthan Ariaratnam, ‘Spy Tigers: The LTTE Intelligence Wing (Part II). February 2024
During the conflict Tamils in the North and East were monitored, harassed, arrested and/or detained by security forces (including those with LTTE connections) and security forces imputed LTTE support based on ethnicity.[23] At that time, Tamils were disproportionately detained under the Prevention of Terrorism Act (PTA) compared to other ethnic groups.[24] People working for NGOs, including those involved in demining, were also targeted by the SLA during that period. [25]
[23] DFAT 2024 Report at [3.12] and [3.72] – [3.75].
[24] DFAT 2024 Report at [4.39]: UNHCR 2012 Report; and OSIL Report: see also DFAT, 'Country Information report Sri Lanka, 4 November 2019 (DFAT 2019 Report) at [3.16].
[25] ‘Tides of violence Mapping the Sri Lankan Conflict from 1983 to 2009’ (Public Interest Advocacy Centre, ay 2019, page 147.
The government forces re-took the Eastern part of the country from the LTTE in July 2007 an launched a major offensive to capture remaining LTTE-controlled areas in the North in January 2008.[26] Most of the LTTE’s senior ranks, including its leader, Velupillai Prabhakaran were eliminated, and the LTTE surrendered in May 2009.[27]
[26] DFAT 2024 at [2.2] and [3.72] – [3.75].
[27] DFAT 2024 at [2.2] and [3.72] – [3.75].
Towards the end of the war and in the years following it, government security forces arrested and detained many suspected former LTTE members, most of whom were sent to rehabilitation centres, though a number were prosecuted, and security forces also questioned or monitored many civilians for possible LTTE activity.[28] Internment camps, set up for internally displaced Tamils, were used to ‘weed’ out former LTTE fighters and reports are that many Tamils were killed or disappeared from these camps.[29] Both during and after the conflict, many Tamils were kidnapped in so-called ‘white van abductions’, and those detained for questioning experienced mistreatment amounting to torture.[30]
[28] DFAT 2024 at [2.2] and [3.72] – [3.75]; UNHCR 2012 Report; and IT&JP, ‘Forgotten: Sri Lanka’s exiled victims’, 6 June 2016 (IT&JP Exiled Victims Report).
[29] Tamil Net, ‘13,000 have ‘disappeared’ from Sri Lanka Camps-UN reports’ 2 February 2009; TamilNet, ‘1,400 dying each week in Manik Farm Camp-The Times’, 10 July 2009; ‘TamilNet, ‘Camp disappearances reach alarming levels-Rights advocate’, 14 June 2009; ‘TamilNet, ‘The Times calls for world boycott of Sri Lanka over detainees’, 10 July 2009.
[30] DFAT 2024 at [2.2] and [3.72] – [3.75]; UNHCR 2012 Report; ITJ&P Exiled Victims Report; ITJ&P, "Silenced: survivors of torture and sexual violence in 2015", 7 January 2016 (ITJP Silenced Report); Human Rights Watch (HRW), ‘We Live in Constant Fear Lack of Accountability for Police Abuse in Sri Lanka’, October 2015 (HRW 2015 Report);Telegraph (UK), ‘Demands for Inquiry into Sri Lanka ‘white van’ abductions’, 1 May 2016; BBC, ‘Sri Lanka’s Sinister ‘White Van’ abductions’, 14 March 2012; Sri Lanka chief, ‘Prageeth Abduction and Disappearance Case: Gotabhaya Involved’, 1 May 2016; and Colombo Mirror, ‘Sri Lanka Navy deployed White-Vans to abduct school children for ransom’, 1 May 2016.
The applicant detailed for the Tribunal his reasons for joining the LTTE, the location of the camp in which he was trained, the training regime he undertook (including specify the exact weapons he was trained to use), the layout of the camp and the number of other individuals with whom he trained. The information he provided was presented in a manner indicative of genuine experience, and its consistent with the independent information regarding these matters set out above, including the name and location of the camp and the training program.
In terms of his activities, his evidence on these matters was also detailed and specific. The applicant also identified the hierarchical structure of his work area, named the relevant divisions, and advised the Tribunal of the name of his commander. Again, the evidence he provided regarding the structure and names of the relevant units was consistent with independent information before the Tribunal.[31] Relevantly, the applicant also provided the provided the name of the LTTE commander under whom he undertook additional intelligence training. This is supported by independent information, located by the Tribunal, that this commander was indeed the [position] of [a department] during the relevant period in which he claimed to have been trained.[32] His evidence regarding his time and work in Colombo was also detailed, the applicant described the shop, his work, and how he received directions from the LTTE.
[31] Adrien Fontanellaz & Kagusthan Ariaratnam, 'Spy Tigers: The LTTE Intelligence Wing (Part II) – Project O Five, 28 December 2000; LTTE’ Secret Intelligence Branches – TOSIS and the MI – Eelamaravar (wordpress.com), 30 December 2023.
[32][deleted]
The applicant’s LTTE membership was supported by his wife, who was aware of the details of his past. It was also supported by the statutory declaration by [Mr C], in which he attested to engaging with the applicant on three occasions during their LTTE work. [Mr C] had intended to attend the hearing to provide oral evidence on his written statement but was unable to do so on the day. While I was not able to test the evidence, I have considered that it is also consistent with independent information set out above, and with the applicant’s evidence. I also consider that it is not exaggerated, which lends additional credibility to the statements therein. Overall, I find [Mr C]’s account credible and give it some weight.
The applicant has provided his employment identity cards confirming he worked with the [Company 1] and the [Company 2] in Sri Lanka. I accept these are genuine and find that he undertook this work as claimed.
On the evidence before me, I accept that the applicant was a member of the LTTE, joining during peacetime in 2002. I find that he undertook training, that he was engaged in political activities, including promoting the LTTE and some intelligence work. I accept as plausible that this included his [specified] work, to obtain [information]. I accept he was sent to Colombo in 2006, and when initially plans to send him overseas did not come to pass, he worked in [a workplace] , providing [support] to the LTTE when required. I find that he was not a combatant and held political/intelligence roles.
The applicant provided copies and translations of a document entitled ‘receipt of arrest’/ ‘receipt for arrested persons’. He provided two separate translations, one to the department and one to the Tribunal, though their content is consistent. The document itself appears aged, it is in Sinhala with some computer printing and some handwriting. It states that the applicant was taken to the police station [on] [date] December 2008 on suspicion of terrorist activities. When asked, the applicant advised this document was not a ‘warrant’ as had previously been described, rather, as the translation attests, it is a receipt. It was written on the spot and given to his uncle when he was taken into custody.
I note that there are other examples of handwritten documents issued by the Sri Lankan authorities, so it is not the appearance of this document is not necessarily unusual.[33] Moreover information supports that, though not always followed, it was a requirement that an arrest receipt be issued to family members in the circumstances set out by the applicant, and these documents were generally in Sinhala.[34] After careful consideration and having regard to all of the material before me, I accept this document is genuine.
[33] See for example , ‘Sri Lanka’s terrorism division summons another Kilinochchi council chair’, The Tamil Guardian, 11 August 2021; ‘ITAK activist latest in spate of summons by terrorism division as Maaveerar Naal approaches’, Tamil Guardian, 3 November 2019; and ‘Jaffna University student to be interrogated by TID for 'giving information to Human Rights Commission', the Tamil Guardian, 17 December 2021.
[34] ‘The Numbers Never Lie: A Comprehensive Assessment of Sri Lanka’s LLRC Progress’ - Groundviews Journalism for citizens, March 2013; HRW, ‘We will teach you a lesson Sexual violence against Tamils by Sri Lankan Security Forces’, February 2013, page 56 and 85; Sri Lanka Campaign for Peace and Justice, ‘Crimes Against Humanity in Sri Lanka’s Northern Province. A Legal Analysis of Post War Human Rights Violations’, 4 March 2014, page 34; HRW, ‘Recurring Nightmare. State Responsibility for “Disappearances” and Abductions in Sri Lanka’, March 2008, pages 5, 38 -39, 49, 82, 92; and HRW, ‘Legal Limbo The Uncertain Fate of Detained LTTE Suspects in Sri Lanka’, February 2010, page 6-8.

I accept the applicant’s evidence that he was taken into police custody for suspicion of LTTE activities in December 2008. The information before me supports that it was common for those detained to be tortured during the questioning process. I accept that he was physically and emotionally mistreated, assaulted and tortured during that process. I also accept that his brother was able to secure his release by paying a bribe. Independent information confirms family members were able to secure release of suspected LTTE members by means of bribery.[35] I accept that the applicant was able to obtain assistance to leave Sri Lanka and that he travelled to India in January 2009 prior to coming to Australia.
[35] See for example, HRW, ‘We will teach you a lesson Sexual violence against Tamils by Sri Lankan Security Forces’, February 2013; Sri Lanka Campaign for Peace and Justice, ‘Crimes Against Humanity in Sri Lanka’s Northern Province. A Legal Analysis of Post War Human Rights Violations’, 4 March 2014, page 48; and ‘Tides of Violence: Mapping the Sri Lankan Conflict from 1983-2009’, Public Interest Advocacy Centre, May 2019, pages 177 and 184-185.
Recent events
The applicant’s claimed involvement with the [ORGANISATION 1] since 2012 was detailed, and supported by the evidence of his wife, the photographs he provided, the financial details he provided, and the letter from the current president of the [ORGANISATION 1]. I accept that the applicant is has been actively involved in the preparing and running of memorial events and has also participated in sports events, rallies, and other campaigns.
I accept on their identity documents that two of the applicant’s siblings have been granted asylum in [Country 1].
The applicant’s evidence that his parents have been visited in recent times, including in relation to the applicant, is consistent with country information below regarding monitoring activities for individuals with the applicant’s profile. I accept that they received regular visits from SLA members who live in the nearby base, most recently in 2022.
Current circumstances in Sri Lanka
In May 2022 Ranil Wickremesinghe replaced Mahinda Rajapaksa as president of Sri Lanka, and, in July of that year, Dinesh Gunawardenar became Prime Minister, a position previously held by Gotabaya Rajapaksa.[36] President Wickremesinghe is reported to have taken a more conciliatory approach towards Tamils and has committed to advancing reconciliation, including through the creation of a Truth and Reconciliation Commission.[37] DFAT states that the level of state harassment and mistreatment against Tamils has decreased significantly since 2015, and the level of state hostility had eased under the current Wickremesinghe Government.[38]
[36] DFAT 2024 Report at [2.4]and ‘Sri Lanka swears Dinesh Gunawardena in as new prime minister’ Al Jazeera News, 22 July 2022; and 'Situation of human rights in Sri Lanka - Report of the United Nations High Commissioner for Human Rights', United Nations Human Rights Council, 6 September 2023, (OHCHR 2023 Report), page 2.
[37] DFAT 2024 Report at [3.6].
[38] Ibid at [3.7].
Tamils are represented in politics, with the Tamil National Alliance (TNA) holding ten seats in parliament following 2020 elections, two Tamils are in the Wickremasinghe Ministry and the current Attorney-General is Tamil.[39] Other Tamil parties not aligned with the TNA are also represented. The Tamil community report discrimination in employment, particularly in relation to government jobs. However, DFAT states this is not due to any official discriminatory policies, but rather due to language barriers.[40] DFAT states that monolingual Tamil speakers can have some difficulty communicating with authorities due to the small number of Tamil speakers in the police and military, but incentives remain in place to improve this situation and Tamil is recognised as an official language of Sri Lanka.[41] Education is provided in Sinhala or Tamil and Tamil language education is accessible in Tamil majority areas.[42]
[39] Ibid at [3.5].
[40] Ibid at [3.8].
[41] Ibid at [3.8] and [2.8].
[42] Ibid at [2.49].
DFAT states that ‘white-van’ abductions have not occurred since 2015.[43] Further, their in-country Tamil sources advised they were unaware of recent incidents of state-sanctioned enforced disappearance, including in Jaffna and Batticaloa.[44] DFAT also advises that the TMVP and EPDP, former paramilitary groups aligned with the Sri Lankan government, have ceased paramilitary activities, are part of the democratic pollical process, and now pose a low threat of violence and harassment to the Tamil community.[45] DFAT assesses that Tamils are at a low risk of official discrimination for reasons of their ethnicity.[46]
[43].Ibid at [4.7].
[44] Ibid at [4.10]
[45] Ibid at [2.85] - [2.86].
[46] Ibid at [3.11].
Despite some progress, information confirms that Tamils continue to experience human rights challenges.[47] Sinhalese from the south have resettled in the North with government assistance, with most settling in Mullaitivu. DFAT advises there are few, if any, Sinhalese in Jaffna.[48] The military occupied large amounts of private Tamil owned land in the north-east during and after the war to establish bases and associated buffer zones (known as HSZs).[49] Despite some land repatriation, the Sri Lankan military continues to occupy Tamil owned land, and government departments are now also increasing acquiring Tamil property for their own use.[50] In terms of Tamil Catholics, DFAT currently assesses Catholics, face a low risk of official or societal discrimination, especially in urban areas. [51]
[47] Ibid at [3.7]; OHCHR 2023 Report; US Department of State, '2023 Country Reports on Human Rights Practices - Sri Lanka', 22 April 2024 (UDSOS 2024 Report), page 2, 3, 13, 17-32; and 47-49; Combined Refugee Action Group (CRAG) Geelong 'Sri Lanka Country Information Report No.13', 24 June 2024, (CRAG Report); United Kingdom Home Office, 'Country Policy and Information Note - Sri Lanka: Tamil Separatism', 25 August 2022 (UKHO 2022 Report) pages 16 – 23; Freedom House 'Freedom in the World 2024 - Sri Lanka', 18 April 2024 (Freedom House 2024 Report); and 'Human Rights Watch World Report 2024', Human Rights Watch (HRW), 11 January 2024, pages 585-590 (HRW 2024 Report).
[48] DFAT 2024 Report at [3.9].
[49] Ibid at [2.78].
[50] DFAT 2024 Report at [2.78] and [3.9]; and USDOS 2024 Report, page 22- 23 and UKHO Report at page 19-20; Freedom House 2024 Report page 9
[51] DFAT 2024 Report at [3.47].
The Northern Province remains heavily militarised, particularly in areas previously held by the LTTE including Manner, Mullaitivu, Vavuniya and Kilinochchi.[52] In Jaffna, the military maintains a HSZ in Palaly. It is estimated that there is one security personnel for every six civilians in these areas. Checkpoints were reduced following the war, but some remain between Jaffna and Batticaloa, ostensibly for the purpose of ‘controlling criminal activity’.[53] Security forces monitor public gatherings and protests and undertake surveillance and questioning of individuals and groups suspected of promoting politically sensitive issues (missing persons, land release and LTTE memorial events).[54] The current government has generally taken a more permissive approach to some Tamil and LTTE commemorative events, with May 18 commemorations and Maaveerar Naal events in 2022 passing without incident.[55] However, in November 2023 police disrupted Maaveerar Naal commemorations in Vavuniya and Batticaloa and arrested and detained nine Tamils under the PTA.[56]
[52] Ibid at [2.74] –[2.81].
[53] Ibid.
[54] DFAT 2024 Report; UKHO 2022 Report; Al, ‘Sri Lanka 2020’, 2020; and AI, ‘Sri Lanka: Joint statement to end arbitrary arrests, reprisals against human rights defenders and activists advocating for education rights in Sri Lanka’, 30 September 2021.
[55] DFAT 2024 Report at [3.15].
[56] DFAT 2024 Report at [3.15]; USDOS 2024 Report page 17; HRW 'Sri Lanka: Tamils Detained for Commemorating War Dead', 6 December 2023.
The PTA remains in force and permits individuals suspected of unlawful activities to be held initially for 72 hours before appearing before a Magistrate, and to be detained without charge for 12 months. [57] This legislation has been routinely used to enable the prolonged detention, with information indicating some individuals have spent up to 20 years in pre-trial detention. Independent sources confirm the PTA has facilitated torture and other human rights violations and that it continues to do so.[58] The Sri Lankan government issued a moratorium on the use of the PTA in March 2022, but despite this assurance there have been at least 15 arrests pursuant to the PTA, including the nine Tamils mentioned above, since that time. [59] The Wickremesinghe Government has committed to replace the PTA with the new Anti-Terrorism Bill, which has also been subject to criticism by NGO’s and the OHCHR, but this legislation is yet to be adopted.[60]
[57] DFAT 2024 Report at [4.38]; USDOS 2024 Report pages 11, 15, 16-19.
[58] DFAT 2024 Report at [4.38]; USDOS 2024 Report pages 11, 15, 16-19, both sources citing reports of the Human Rights Commission of Sri Lanka.
[59] DFAT 2024 Report at [4.41]; USDOS 2024 Report pages 11, 15, 16-19.
[60] DFAT 2024 Report at [4.42].
In respect of individuals previously associated with the LTTE, DFAT advises that former LTTE leadership and those who held senior positions in the military, political, intelligence and civilian administration are at the highest risk of monitoring.[61] As are those who committed serious criminal offences or terrorist acts during the war, those who supplied weapons to the LTTE, and those who provided financial aid to the LTTE [62] Former combatants, those employed in administrative or other roles, or those who provided a high level of non-military support to during the war are considered low-profile, and DFAT states that these individuals face a low risk of monitoring and harassment.[63] Broadly, monitoring is undertaken by military intelligence and involves visits, telephone calls and being summoned to the police station for questioning. [64] The United Kingdom Home Office (UKHO) states that, in general, monitoring of itself will not amount to persecution or ill-treatment.[65]
[61] Ibid [3.82]
[62] Ibid.
[63] Ibid [3.84] –[3.85].
[64] Ibid at [3.86] –[3.87].
[65] UKHO 2022 Report at [2.4.24].
It is illegal to glorify the LTTE and the public display of LTTE symbols can result in arrest and detention.[66] Arrests for suspected support of the LTTE and/or Tamil statehood periodically occur.[67] Those determined to have promoted the LTTE or Tamil statehood face a high risk of monitoring, arrest, and detention. [68]
[66] DFAT 2024 Report at [3.75].
[67] Ibid [3.76].
[68] Ibid [3.77].
The International Truth and Justice Protect (ITJP) has reported that family members of former LTTE members have been harassed and detained.[69] The UK Upper Tribunal, in its recent consideration in KK and RS, stated that when considering a returnee’s prolife, the relevance of a familial link to the LTTE cannot be excluded, though it would depend on the degree of relationship and the nature of their participation. [70]
[69] Ibid [3.95].
[70]KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 130 (IAC) (UKUT KK and RS) at [499].
Sri Lankan authorities remain on high alert for the potential re-emergence of the LTTE and to Tamil separatism, relying on their extensive intelligence networks, including former LTTE members turned informants, to garner information on these matters.[71] Sri Lankan authorities monitor activities in the Tamil diaspora, including Australia.[72] In August 2022, the current government removed over 300 overseas Tamil organisations from the list of proscribed terrorist [organisations][ORGANISATION 1].[73] However, this was reinstated in 2024.[74] The UKHO states that people with links to proscribed organisations are of ongoing interest to the authorities and are likely to be monitored.
[71] DFAT 2024 Report at [3.76].
[72] DFAT 2024 Report at [3.14]; USDOS 2024 Report; UKHO 2022 Report at 34-35.
[73] DFAT 2024 report at [3.98]; ‘The Gazette of the Democratic Socialist Republic of Sri Lanka, Amendment to the List of Designated Persons under Regulation 4(7) of the United Nations Regulations No. 1 of 2012’,.G 37147 -60, 1 August 2022; ‘Selfish and cynical – Sri Lanka lifts ban on some Tamils but many more remain barred’, The Tamil Guardian, 17 August 2022.
[74] ‘No Longer Funding Terror: Sri Lanka on Lifting ban on Tamil Diaspora Groups’, Declan Herald, 17 August 2022; ‘The Gazette of the Democratic Socialist Republic of Sri Lanka’ No.2387/02, 3 June 2024: USDOS 2024 Report Page 21; and Terrorism in Sri Lanka, ‘Terrorist Groups in Sri Lanka, South Asia Terrorism Portal, accessed 8 August 2024
The UKHO states that Sri Lankan government is likely to know information about a returnee including any connection with a diaspora organisation; attendance at meetings and demonstrations (and their role in these activities such as flag bearing); attendance at or funding of commemorative events; appearance in articles; their social media presence; and political activities (including signing petitions and attending protests).[75] Depending on the nature of and level of the involvement in these activities, individuals are likely face monitoring, questioning and/or detention and be at risk of treatment amounting to serious harm or persecution.[76] Those considered to have a significant role in Tamil separatism, or believed to represent a threat to the integrity of the Sri Lankan State, will likely be detained.[77] Whether someone has a ‘significant role’ depends on their particular circumstances. [78]
[75] UKHO 2022 Report at page 8-10.
[76] UKHO 2022 Report at page 8-10.
[77] Ibid
[78] Ibid.
DFAT advises that the Wickremesinghe Government has proclaimed a zero-tolerance approach to torture, including a commitment to investigate all allegations and prosecute suspects.[79] However, DFAT, the ITJP, United States Department of State (USDOS) and Freedom House, among others, state there is an ongoing risk of mistreatment, including torture, from the authorities in Sri Lanka.[80] A culture of torture persists and the use of torture and excessive force by military, security forces, and the police, even in regular criminal investigations, is ‘endemic’ and ‘common’.[81] Torture is often used during questioning as a means of obtaining a confession or information.[82]
[79] DFAT 2024 Report at [4.19].
[80] DFAT 2024 Report at [4-23]-[4.30]; ITJP, 'Disappearance, Torture and Sexual Violence of Tamils 2015-2022', 9 May 2024 (ITJP 2024 Report); CRAG Report at page 49-53; UKHO at [2.4.9] and pages 31-32; Freedom House, Sri Lanka Freedom in the World 2024 Country Report, 2024 page 12-13 (Freedom House 2024 Report); and UDSOS 2024 Report pages 10-13.
[81] UKHO at [2.4.9] and pages 31-32; DFAT 2024 Report at [4.23- [4.30].
[82] UDSOS pages 10-13; ITJP 2024 Report; Freedom House 2024 Report page 12-13; DFAT 2024 Report at [4.23]-[ 4.30]
The ITJP interviewed 123 Tamils, illegally detained by the authorities between 2015 and 2022, the majority of whom were subjected to significant mistreatment, including sexual violence and torture.[83] The USDOS reported that Tamils detained in 2023 for suspected connections to the LTTE or participation in protests, were tortured during questioning, and that another detainee died from injuries sustained during his detention.[84] In February 2024 two young Tamil men were tortured by the authorities, including a university student in Jaffna.[85] DFAT states that the risk of torture was not confined to a particular group, though other sources stated that Tamils are disproportionality affected by such treatment, and there is a recent trend of police targeting and abusing Tamil youth.[86] Overall, DFAT states that people arrested and detained for suspected criminal activities have a moderate risk of being tortured.[87]
[83] ITJP 20204 Report.
[84] UDSOS pages 10-13.
[85] CRAG Report page 49
[86] DFAT 2024 Report at [4.26]; CRAG Report page 50; UKHO 2022 Report, citing a 2021 ITJP report, page 32; Freedom House 2024 Report page 12; ITJP 2024 Report.
[87] DFAT 2024 Report at [4.30].
Broadly, returnees to Sri Lanka have their identities checked at immigration.[88] If they left illegally, had a criminal history, or are on a stop list or watch list (discussed below), they will be questioned by immigration, and then transferred to Naval Intelligence or the State Intelligence Service.[89] After this, they are taken to the CID for further examination. If they left illegally, they will be charged for breaching the Immigrants and Emigrants Act (1948) (the I&E Act) and appear at the Court in Negombo and bailed. If the Court is closed, individuals are held in remand and presented to the Court the following day. In most cases the imposition of a fine was the outcome for breaching the I&E Act, and this can be paid in instalments. DFAT advises that recent Tamil returnees from Jaffna and Batticaloa did not report any mistreatment during these processes. [90]
[88] Ibid at [5.36] –[5.59].
[89] Ibid.
[90] Ibid.
Sri Lankan authorities continue to utilise ‘stop’ and ‘watch’ lists to identify those of interest on return to Sri Lanka.[91] Watch lists contain the names of individuals of interest for suspected separatist or criminal activities; those on the ‘stop list’ are persons with an extant court order, an outstanding arrest warrant or an order to impound their passport.[92] Those on a stop list are likely to be questioned at the airport, those on a watch list will either be detained or monitored after returning to their home area, depending on their level of interest to the government.[93] Those not on either a stop or watch list will likely pass through the airport unhindered (though on the above information, this may depend on whether any questioning at the airport reveals a relevant profile).[94] DFAT states the authorities are particularly interested in the organisers and facilitators of people smuggling.[95]
[91] DFAT 2024 Report at [3.76]; and UKHO 2022 Report page 11-12.
[92] DFAT Report at [3.76]; and UKHO 2022 Report page 11-12.
[93] UKHO 2022 Report page 11-12.
[94] Ibid.
[95] DFAT 2024 Report at [5.40].
DFAT reported that recent returnees did not report harassment or threats to their security, including state surveillance and visits to their home.[96] They were welcomed back into their families and local communities and were able to find employment.[97] DFAT assess that failed asylum seekers and returnees, face a low risk of official harassment for reasons of being a failed asylum seeker, or their Tamil ethnicity. However, those of adverse interest, for example, due to their criminal history, could be monitored as are those convicted of illegally departing the country.[98]
[96] Ibid [5.36] –[5.59].
[97] Ibid
[98] Ibid.
Harm on return to Sri Lanka
In this case, the applicant will be returning to Sri Lanka as a failed asylum seeker and, due to his manner of return, I accept he will be identified as such on return. I also accept that the authorities will be aware of his previous arrest and detention for suspicion of LTTE activities, and there is a real chance that they are already aware, or will become aware in the foreseeable future, of his past role within [a] branch of the LTTE. He will be considered high profile on return. Moreover, on the information above regarding the monitoring of diaspora activities, I accept that the authorities will be aware of his extensive involvement with the [ORGANISATION 1], which is a proscribed diaspora organisation. I also accept that the authorities will be interested in the reasons upon which his siblings were granted asylum in [Country 1] and will question him on this matter. For these reasons cumulatively, I find that the applicant will be of adverse interest to the authorities on his return on suspicion of supporting and funding Tamil separatism and terrorist activity.

I accept, he will be questioned by the military intelligence and/or the CID in relation to these matters. I am unable to state with certainty whether he will be detained on arrival at the airport, or upon his return to [City 1]. However, in either case, I accept that he will be detained and interrogated regarding these matters. I give weight to the above information that excessive force and mistreatment amounting to torture is endemic and routinely used during even routine questioning and has been used very recently against Tamil men with suspected LTTE connections and/or participation in commemoration events. I find the applicant faces a real chance of being physically assaulted and or tortured during questioning and detention.
On the evidence before me, I find that the applicant faces a real chance of serious harm in the form of significant physical ill-treatment, and serious psychological harm. I find this is for the essential and significant reasons of his actual political opinion, supporting the LTTE and/or Tamil separatism, and due to his Tamil ethnicity. Given that the perpetrator in his case are the Sri Lankan authorities and the government, I find that the real chance of harm arises through all areas of the receiving country, and that effective protection measures are not available to him.
I find that it would not be reasonable for the applicant to modify his behaviour, as it would require him to conceal his ethnicity or concern an innate or immutable characteristic, and/or alter his political beliefs. These are impermissible modifications for s 5J(3). I find s 5J(3) does not apply.
To be clear, I also find that his conduct in Australia, including his association with the [ORGANISATION 1], and his participation in commemorative events, were done other than for the purpose of strengthening his claims for protection. These matters were discussed during the hearing, and I accept the applicant’s evidence that he aided the [ORGANISATION 1] and participated in commemorative activities and protests because of genuinely held views and a desire to bring attention to issues affecting Tamils in Sri Lanka. I find that s 5J(6) does not apply.
It is also worth emphasising that while I have accepted the applicant undertook military and weapons training with the LTTE, I have found his role was in intelligence gathering and political support. I find he did not engage in armed attacks against Sri Lankan Government forces or Sri Lankan citizens, and that he was not a combatant in the conflict.
The applicant has made several other credible claims including his future participation in commemoration events in Sri Lanka, his fear as a Tamil residing in a highly in a militarised zone, his inability to obtain proper medical care for his mental ill health, and that he will be stigmatised due to his mental illnesses. However, given I have determined he has a well-founded fear of persecution for the reasons set out above, it is not necessary for me to consider these matters further.
On the totality of the evidence before me, I find that the applicant has a well-founded fear of persecution.
Refugee finding
I find that the applicant meets the definition of refugee in s 5H(1) of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Victoria Price
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.
…

Anbarasan Ethirajan, ‘Sri Lanka mass grave: Dozens of skeletons found in Mannar’, BBC News, Mannar, 27 August 2018; Anbarasan Ethirajan ‘Sri Lanka mass graves: 230 skeletons found at country's largest site’, BBC News, Mannar, 27 November 2018; Qadijah Irshad, ‘Skeletons of 21 children found in mass grave in Sri Lanka with 'signs of torture’, The Independent 13 December 2019.

[2024] AATA 4391

22 August 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Standing

Statutory Construction