1923409 (Refugee)

[2020] AATA 1576

1923409 (Refugee) [2020] AATA 1576 (20 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1923409

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:David McCulloch

DATE:20 January 2020

PLACE OF DECISION:  Sydney

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 20 January 2020 at 9:11am

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – ethnicity – LTTE conscript – active service and injury – surrender and escape from displaced persons’ camp without being identified – political campaigner and assistant – arrest and mistreatment by police and army, and escape from detention – departure using false passport – credibility – weighing implausible aspects against overall consistent, detailed evidence – country information – status of returned former LTTE members – status of Tamil political parties – real chance of serious harm in all areas of country – decision under review remitted

LEGISLATION

Migration Act 1959 (Cth), ss 5J(1), (4), 36(2)(a), 65

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Luu v Renevier (1989) 91 ALR 39

MIEA v Guo (1997) 191 CLR 559

Prasad v MIEA (1985) 6 FCR 155

Yao-Jing Li v MIMA (1997) 74 FCR 275

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 August 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 28 June 2019. The delegate refused to grant the visa.

3. The applicant appeared before the Tribunal on 17 December 2019 and 19 December 2019. The Tribunal was assisted by an interpreter in the Tamil language in both hearings. The applicant was represented by his registered migration agent, who attended both hearings.

   CRITERIA FOR A PROTECTION VISA

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

5. 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.

6. 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 themself 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).

7. 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.

8. 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

9. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it DFAT Country Information Report – Sri Lanka, 4 November 2019, a copy of which was provided to the applicant at the first hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are made out. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

11. The applicant departed Sri Lanka [in] June 2019. The applicant entered Australia as an unauthorised air arrival [in] June 2019 on a passport with another identity.  The applicant told officials at the airport his correct identity. Prior to coming to Australia, the applicant went to Tamil Nadu, India for approximately three weeks in August 2013 to visit family, and travelled to [Country 1] in [December 2015] to attend a wedding.

12. The following information is apparent from the applicant’s application for protection forms. The applicant was born on [Date] in Sri Lanka. The applicant is a Hindu of Tamil ethnicity, who can speak Sinhalese, and can speak, read, and write Tamil. The applicant’s father, mother, and brother reside in Sri Lanka, and his sister in [Country 2]. The applicant’s cousin lives in Australia. The applicant lived at one address in [City 1], Sri Lanka from birth until [June] 2019. The applicant then lived in a house in Negombo, Sri Lanka [in] June 2019. The applicant states that he was in [a] Camp in [City 1], Sri Lanka from May 2009 until October 2009. The applicant attended primary and secondary school from January 1996, and withdrew from [High School], in [District], in January 2005. The applicant served in the Liberation Tigers of Tamil Eelam (LTTE) from January 2008 until May 2009. The applicant was subsequently detained in [the] Camp and was unemployed from May 2009 until October 2009. From October 2009 until May 2010, the applicant was unemployed and maintained a low profile, staying at relatives’ homes. The applicant was self-employed [from] May 2010 until June 2019, and also began campaigning and assisting MP Rishad Bathuideen’s political party.

13. In the application forms, the applicant claims that he was conscripted by the LTTE at the beginning of 2008. Following training, the applicant served in combat and was injured at the end of 2008, and taken to the LTTE’s medical division where he was responsible for stocking weapons and ammunition. Because of his LTTE connection, the applicant was suspected of being involved in the 2019 Easter bombings. The applicant was detained before he was able to escape and go into hiding. The applicant took his father to hospital for treatment in June 2019. While the applicant was away, Sri Lankan Army (SLA) soldiers visited the applicant’s house and inquired about his whereabouts. When the applicant returned home a few days later, his mother informed him that the soldiers had searched for him. The applicant went to the police to file a complaint, but they refused to accept the complaint and turned the applicant away. At 8:30 pm that night, soldiers came and arrested the applicant, and took him to a room in the jungle and beat the applicant for filing a complaint against them. They threatened to shoot the applicant. The applicant managed to escape and go into hiding.

14. The applicant claims that he cannot relocate as the Sri Lankan authorities are the ones persecuting him.  The applicant claims that he cannot receive protection from the authorities.

15. The applicant fears that he would be harmed by the Sri Lankan authorities, especially the Criminal Investigation Department (CID) and the Terrorism Investigation Division (TID) due to his involvement with the LTTE. The applicant was not taken to rehabilitation and escaped from a refugee camp before he could be identified as a member of the LTTE. The Sri Lankan authorities are now aware that the applicant was involved in the LTTE, and will arrest the applicant upon arrival. They will torture the applicant for information, and then detain and torture him further. Even if they released the applicant, they would view the applicant as a threat to their regime due to his involvement in the LTTE.

16. The applicant claims that he suffered ongoing harassment, threats to life or liberty, physical intimidation, assault, abduction, detention, torture, inhumane treatment and punishment.  The applicant claims that he fears suffering such treatment should he return to Sri Lanka.

17. The applicant was interviewed at the airport on arrival in Australia [in] June 2019.  Notes of that interview appear on the Department file with claims by the applicant indicated in handwriting by the interviewer. Australian Border Force interviewed the applicant again on 18 June 2019. A record of this interview appears on the Departmental file with typewritten statements of the questions asked by the interviewer and a summary of the responses provided by the applicant. A further Australian Border Force interview took place on 19 June 2019. A complete transcript of this interview appears on the Departmental file. The Tribunal has reviewed the evidence provided by the applicant in these various interviews based on the information on the Departmental file.

18. On 14 July 2019, the applicant provided a detailed written statement setting out his claims. This is the most comprehensive detailing of the applicant’s claims for protection.

19. The applicant was interviewed by the delegate in relation to all his claims on 19 July 2019. The Tribunal has reviewed the contents of this interview based on its recording.

20. The written statement provided by the applicant on 14 July 2019 follows (not corrected for spelling or grammar):

    Background:

    I was born in [Town 1] in [District], Sri-Lanka on [Date].

    I have one [sister], [Ms A] who currently resides in [Country 2] as a citizen.

    I have one [brother], [Mr B] who resides with his wife and children in [District].

    My father [Mr C] is former member of All Sri Lankan People’s Congress (Rishad Badurdeen’s political party). He is currently in and out of hospital receiving [treatment].

    Attached are the following documents in support of this:

    (a) Medical record and treatment for father.

    (b) Copy of father’s Election posters

    (c) Copy of father’s election identity card

    (d) Copy of father’s electoral card

    I studied [deleted] level in [2005], however I did not complete my studies.

    In 2005 I began helping my father with [certain] work.

    In 2007, my family and I began getting displaced because of the increasing hostilities between the Sri-Lankan Army and the LTTE.

    Passport and travel Overseas:

    I obtained my Sri-Lankan passport in [2007] because of the incessant fighting that was happening between the Sri-Lankan Army and the LTTE (Liberations of Tamil Tiger Eelam) because of increasing hostilities. I applied for this passport at [District] administrative office and my passport arrived by post in around 3 months.

    I previously travelled to [Country 1] to attend a wedding in December 2015.

    I also travelled to India in August 2013 to visit family and I spent around three weeks there.

    My Passport was taken by my agent before I departed Sri-Lanka to come to Australia. I do not possess a copy of my passport.

    Recruited by the LTTE:.

    At beginning of 2008, I was taken by LTTE into a van. I was taken to [the] Jungle and was given three months training. I received shooting practice, self-defence and physical training.

    I received training to use weapons such as T56 AK47 and grenades.

    I was given the LTTE name [Alias].

    During my time with the LTTE I took part in numerous combats, transported injured cadres, and transported goods for the LTTE.

    At around the end of 2008 I was hit by a shrapnel piece whilst I was in combat. I was taken to LTTE medical camp, and received treatment. I was then given the responsibility to stock weapons and ammunition at LTTE bases.

    Surrendering to Army:

    In around May 2009, we were given instructions by our commander that there was no point continuing service, and that we should look at safe guarding our lives. We were told that the Sri-Lankan Army was near approaching. We were told to disguise as civilians and join our family. I disguised as a civilian, and joined my family and surrendered to a Sri-Lankan Army controlled area. We were taken to [a] camp in [Location].

    At the camp we registered our details and were questioned about whether we were in the LTTE.  I denied any involvement.

    While I was at the camp, announcements would be made on the speaker that anyone in the LTTE must come forward and declare their involvement, however I was too fearful to come forward.

    At this point of time, individuals who were in the LTTE with me had started working for the CID and began identifying other LTTE members to the Sir-Lankan authorities. I did not come forward as an LTTE member at the refugee camp and stayed with my parents who were also being held at the camp.

    People whom I knew were in the LTTE had been taken away and did not return. I feared that the same would happen to me.

    Escape from camp:

    My father knew Sinhalese and when he was taken away for enquiries he must have spoken to someone and arranged for me to escape. Our camp was also becoming overcrowded and so they were going to move us to another camp. My father organised a bribe to be paid and arrangements were made for me to escape the camp. My father told me that a truck which will come to pick up garbage will arrive at a certain time and that I was to hide in the truck and that way I would be exit the camp when the truck drove off. This was around October 2009.

    The truck then travelled around 30 to 40 km and I was left at the side of a street in [City 1]. I then made my way to relative’s homes and stayed in hiding at their homes. I often changed houses to avoid detection. The army would visit houses to check who was residing there, and I was fearful that I was being searched for.

    Keeping a low profile

    My parents were released from the camp in May 2010 in [City 1]. My parents were released in May 2010 to [District] to our native village. I was hesitant to join them, as I thought that I would be captured and the Army would realise that I had escaped from the camp. However, my father passed news to me that he had organised it in a way that record of me escaping was not at the camp and the fact that I was taken to the camp would not be on record. This was what he had arranged with the army officers and I joined by parents in May 2010 after my parents had been released and my father advised me to join the All Sri Lankan People’s Congress. The Minister in charge of the party was Rishad Bathideen. I joined that party to be safe from the Sri-Lankan Authorities. The party was pretending to help people that were impacted by the war to secure Tamil votes.

    Political involvement

    My father was elected to [a certain role] with this party in April 2018. Rishaad is a Muslim person. Due to the threats from the SLA, I thought that joining Muslim people would make me safe. During his detention at the camp, the Sri-Lankan Army had assaulted my father which led to him [receiving a permanent impairment in one body part]. He’s been in hospital for 6-7 months. He’s still receiving treatment for this injury today.

    I engaged in public party propaganda , attended various meetings and stuck up posters. In April 2018 my father stood for election for Rishad Badurdeen’s party.

    Between 2010 and 2019 I worked as [an occupation] and helped the All Sri Lankan People’s Congress political party.

    Why I left Sri-Lanka?

    [In] February 2019 [Town 2] police arrested me and accused me of [an offence]. A false case was filed against me. I was put in prison cell at [Town 2] Police Station.

    At the police station I recognised a police officer who was in the LTTE with me however I did not speak with him.

    When another Tamil police officer came to give me food he told me that they are going to file a case against me because I had been an LTTE member. I was also accused of [an offence]. This officer explained that they had information that I had been in the LTTE and that a case about this would be filed. The police officer advised me to speak to connections so that my release could be organised.

    I felt that the individual who I was in the LTTE with had dobbed my involvement in to the authorities.

    I didn’t know what to do, but I passed the news through another Tamil person who had come to report something at the police station to advise my brother that I had been arrested by the police.

    My brother then spoke to my dad who spoke to Minister Bathuideen, and the minister then spoke to the police and helped me to close the case. Minsiter Bathuideen intervened as he did not want news to come out that a father of an LTTE member was standing as a [candidate]. He negotiated with the police and arranged for the LTTE charges to be dropped. I was told by him to accept at court that I [committed another offence]. I was released on bail [in] February 2019. [In] May 2019 I was charged and fined 5000 rupees for entering government controlled jungle.

    I was released on bail [in] February 2019. [In] May 2019 I went to court and paid a fine and was released. They would have filed an LTTE case if the minister did not speak to them.

    Around a week later, on around the 5^th of June 2019, Rishaad Bathuideen resigned from his position as minister. My father also halted all his political involvement as he was unwell and required hospital treatment.

    Why the Authorities won’t help me:

    [In] June 2019, I took my father to [City 1] Hospital for [treatment]. That night at 11pm , around 10 Sri-Lankan army soldiers came to our house enquiring about my whereabouts. My mother asked them what they wanted. They told my mother to ask me to report to them as they wanted to question me.

    I returned home [in] June 2019, my father remained at hospital, this is when my mother told me that men had come in search of me.

    My mother didn’t know who they were but said that they looked like the SLA. They spoke in Sinhalese and called out my name.

    I was really scared as the Minister was no longer in power, I went to [Town 1] police station and told them that some unknown people had visited our home looking for me and I wanted to make a formal complaint. The police said that they could not register the complaint as I was telling lies and told me to leave.

    Repercussions of seeking assistance

    I came home and was living in fear of what would happen to me. On that night [men] with covered faces and arms came to my house. They were armed, I was handcuffed and taken somewhere into a jungle and kept in a room. They accused me of being in the LTTE. They told me that as the Minister was no longer in power and so no one would protect me. The asked me what I could I do now? They beat me and yelled at me for registering a complaint against them before.

    They removed my handcuffs and beat me telling me how dare I file a complaint against them.  They threatened to shoot me.

    The men then Started drinking and would come bash me for being Tamil. They called me a Kottiyan (Tiger in Sinhalese)

    I was told that they would transfer me to Army camp first thing tomorrow morning.

    One of the men then received a call from someone who seemed to be their superior, they all stopped mucking around and walked away from me outside . I saw they were far away and I used this opportunity to escape.

    After I escaped

    It was early morning around dawn. I managed to escape, from them and I ran through the jungle to [Village] at my uncle’s house in [City 1].  I told my uncle that I had managed to escape from the Sri-Lankan army, and told him that I was scared to remain here and that if the army found you they will kill me. My uncle then made arrangements for me to leave Sri-Lanka. He spoke with my parents and pawned all the jewellery and sold land and arranged for money to pay agents to arrange my departure from Sri-Lanka. The next day [in] June I boarded a [truck] and was taken to Negombo and kept at a house. My uncle made all arrangements for me, I was told not to leave the house.

    [In] June 2019 I was taken to Sr-Lankan airport and boarded a flight. Before I went to the airport I met a man who handed me an airline ticket and a passport which contained my picture but was issued under another name. I was told that I would be travelling to Australia. I told the agent that I was too scared to pass customs at the airport as I could be identified at the airport. The agent assured me that he had orchestrated for my safe passage through the airport and that I would not be questioned at all at Colombo airport.

    I boarded a flight [in] June 12:30am and arrived in Sydney at night.

    What I fear may happen to me, by who and why, if I return to that country

    I fear that if I return to Sri Lanka I will be seriously harmed by the Sri Lankan authorities. I fear that I will be kidnapped, detained and tortured by the Sri Lankan authorities, in particular the CID if I return to Sri Lanka.

    I fear harm on account of

    (a) My Tamil Ethnicity and originating from LTTE controlled areas

    (b) My LTTE membership.

    (c) My political involvement with All Sri Lankan People’s Congress

    I escaped from the Sri-Lankan Army, and they continued to be in search of me. If I was to be returned to Sri-Lanka, I will be arrested by the authorities and charged with an offence of having served in the LTTE if returned. My arrival will immediately bring me to the adverse attention of the authorities. As the Sri-Lankan Authorities now hold a file on me I will immediately be taken away for interrogations and be tortured.

    I was not taken to rehabilitation and I escaped from their hold before they took me to an interrogation camp. Record of me being an LTTE member is now known to the Sri-Lankan authorities and they will arrest me at the airport as soon as I arrive. I will be taken away and tortured as they will seek to obtain information from me about the movement and my involvement. After the Sri-Lankan Authorities are done with all their questioning they will arrest me under the prevention of terrorism act and I will be detained and tortured. Even if they eventually release me they would have tortured me severely so as to deter me from being involved in any other pro-tamil activities.

    The Sri-Lankan authorities will view me as an individual who possesses skills and knowledge that would be a strength to any group, and I fear that because of this the Sri- Lankan authorities would always see me as a threat to their regime

    I possess knowledge about the movement, it’s operations and its members and because of this I will be interrogated by the authorities. Like before, they would torture me to obtain information out of me.

    As a previous LTTE member, I will always be subjected to violent interrogations and heightened scrutiny. When ever there are any disturbances I will always be viewed with adverse attention and be accused with involvement with the disturbances.

    Why I think the authorities of that country cannot or will not protect me if I were to go back to that country

    The authorities cannot and will not provide me with protection. They interrogated me, detained me and tortured me previously. They will not provide me with any protection if I return.

    Why I think relocation to another area in my country would still befall me to the same harm

    Relocation is not a viable option for me. The Sri Lankan authorities are the agents of persecution and they control the entirety of the country. There is nowhere within Sri Lanka that I will be able to go that is outside of their control.

    Nowhere inside Sri Lanka be safe. I will immediately come to the authorities’ attention as soon as I land in the airport. There is no place that is safe for me.  I will need to register me address in any place that I relocate to. The Sri-Lankan Authorities will easily be able to find me.

1. The applicant provided the following documents to the Department in support of his claims (as summarised in the delegate’s decision):

   ·     A letter from a pastor of a church in [Village], dated [[July] 2019, stating the applicant’s father had informed the pastor of unknown persons enquiring about the applicant the night before, and that the father had said the applicant had been taken by the LTTE in 2008.

   ·     A copy of a 2011 election candidate card for Manthai East district council, in the name [Mr C], standing for the United People’s Freedom Alliance, and a 2018 election candidate card in the name [Mr C] standing for the United National Party (UNP).

   ·     A copy of an election poster written in a Sri Lankan script, with no translation.

   ·     Copies of court documents dated 03 July 2019 written in a Sri Lankan script.

   ·     A translation of a charge sheet, dated [May] 2019 listing three accused, including one with a name similar to the applicant, stating they had been caught in February 2019 entering a reserve without permission and had been charged.

   ·     A handwritten note from a [medical specialist], dated [July] 2019 stating [Mr C] is [permanently impaired] [due] to [a medical condition].

   ·     A diagnosis ticket from a [specialist doctor] dated [April] 2019.

   Following an interview with the applicant to discuss his claims on 19 July 2019 (SHEV interview) the applicant’s migration agent provided copies of various photographs of the applicant with Rishad Buthiradeen and other individuals.

2. These documents were provided to the Tribunal:

   ·A copy of the original and a translation of a notice about the 2019 presidential election in relation to the applicant with an indication that it has been ‘informed as gone abroad.’ It is submitted that this is an indication that the applicant’s voting rights have been cancelled.

   ·A letter in English dated [October] 2019 from Rishard Bathiudeen MP, leader of the All Ceylon Makkal Congress (ACMC) indicating that the applicant’s father has been functioning as a member of the ACMC and has been elected to the party twice. It indicates that his son, the applicant, has been working hard to promote, publicise and strengthen the party in the [district] since 2010. It is indicated that in February 2019 the applicant was arrested while innocently undertaking [work]. Police accused him of being a member of the LTTE. Mr Bathiudeen spoke to police on his behalf and the charge was dropped and he was charged with trespassing into a government forest. However, the applicant is still being accused of LTTE involvement and as such there are threats to his life in Sri Lanka. Mr Bathiudeen has also been made aware that armed men have been to the applicant’s house in search of him since his departure from Sri Lanka.

   Independent information

   LTTE – rehabilitation and risk profiles - investigation of returnees

3. The DFAT Country Information Report – Sri Lanka, 4 November 2019, provides the following information regarding the rehabilitation of former LTTE members:

   Since the end of the war, the Sri Lankan Government has managed a large-scale rehabilitation process for former LTTE members. The government established 24 rehabilitation centres in the Northern, Eastern and Western provinces for former LTTE members who surrendered in the final stages of the war. The Bureau of the Commissioner General of Rehabilitation used a ‘three pronged approach’ to manage arrested LTTE members: (1) those to be investigated and prosecuted under normal court of law; (2) those to be rehabilitated; and (3) those to be released upon confirmation by intelligence agencies of their peripheral involvement in the war. Sources told DFAT that those targeted for rehabilitation included not just former combatants, but also those who performed non-combat functions for the LTTE as part of its civilian administration in Tamil-populated areas.

   According to Sri Lankan Government statistics from March 2019, 12,191 former LTTE members (including 2,265 women) had completed rehabilitation. At the time of publication, only one rehabilitation centre for former LTTE members remained operational (Poonthottam Rehabilitation Centre in Vavuniya, Northern Province). DFAT understands this centre currently houses one former LTTE member. Some centres previously used to rehabilitate former LTTE members have been redeployed for the purposes of rehabilitating drug addicts (see Rehabilitation of non-LTTE members). Official sources told DFAT the Poonthottam centre would remain open for the foreseeable future and be used on a needs basis, including to rehabilitate drug addicts and non-rehabilitated former LTTE members that come to the attention of the authorities. Convicted former LTTE members currently held in other places of detention, including under the PTA, might – upon their release – also be sent for rehabilitation (local sources indicate there are more than 100 such individuals).

   Former LTTE members undergo two forms of profiling: (1) psychosocial, including an assessment of their level of radicalisation; and (2) socioeconomic, including education, professional skills and vocational interests. Personal files assess the progress of former LTTE members in terms of rehabilitation and de-radicalisation. Rehabilitation is typically a one-year program, extended to up to two years for those assessed as highly radical. The first six months of the rehabilitation program usually focus on ‘rehabilitation of the mental and physical state’, including education, spiritual, religious and cultural training and sports; the last six months are dedicated to vocational training. The rehabilitation process includes field trips.

   Although the activities undertaken in the rehabilitation centres vary, vocational training for men includes welding, masonry, plumbing, driving, tailoring, wiring, Sinhala language, computer skills and vegetable cultivation. Women are accommodated separately from men and receive training in cookery, beauty therapy, tailoring, Sinhala language and computer skills. DFAT understands that no women are currently undergoing rehabilitation. Former child soldiers undergo a separate rehabilitation program, with a focus on education. While many of those who have completed rehabilitation have reported difficulty finding regular employment upon their release, others have said the vocational skills gained during rehabilitation made them more employable. The unemployment rate among rehabilitated former LTTE members, particularly women, is reportedly higher than the national average but this may reflect factors such as the weaker economic conditions in the north and east, war-related disabilities and a reluctance by employers to hire known former LTTE members, for fear of inviting monitoring by the authorities.

   Former LTTE members undergoing rehabilitation are permitted to make multiple visits to their family and receive family visits during their rehabilitation process. In 2016, the UN Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment assessed that conditions in rehabilitation were considerably more humane than in prison. Local sources told DFAT that rehabilitation centres compared favourably to prisons, including from the point of view they were not overcrowded like prisons (see Detention and Prison).

   A July 2018 report of the UN Working Group on Arbitrary Detention assessed there were ‘systemic problems with deprivation of liberty’ in connection with the Poonthottam Rehabilitation Centre and described the detention of former LTTE members for the purposes of rehabilitation therein as ‘arbitrary’. The UN Working Group recommended that the Sri Lankan Government release detainees from the Poonthottam Rehabilitation Centre immediately and unconditionally, and close the centre as soon as possible.

   Local sources estimate that between 4,000 and 6,000 former LTTE members are undisclosed and non-rehabilitated, some of whom would now be living overseas. Military sources believe the number of undisclosed and non-rehabilitated former LTTE numbers within Sri Lanka is low, including approximately 280 individuals in Jaffna (Northern Province). Former LTTE members are reluctant to identify for fear of rehabilitation or prosecution. One source claimed the authorities were not actively looking for non-rehabilitated former LTTE members. At the time of publication, DFAT was not aware of rehabilitation being imposed on any former LTTE members who have returned from Australia. DFAT assesses that a non-rehabilitated returnee with links to the LTTE, particularly high-level links, could be subjected to a rehabilitation process should they return to Sri Lanka.

   Although no formal parole arrangements apply, former LTTE members are required to register with the Civil Affairs Office of their local military unit and may be subject to monitoring, the level of which would depend on the degree of their assessed LTTE involvement. Military sources said the military had no system to monitor rehabilitated former LTTE cadres, unless police reported suspicious activities. Most individuals released from rehabilitation centres have returned to their places of origin and, like all other citizens, are required to register with a local grama niladhari (village officer) to receive financial and other support for repatriation and access to public services. Some international and domestic NGOs also provide post-release support. DFAT understands that no travel restrictions apply to rehabilitated former LTTE members, who may obtain a passport. Those who complete rehabilitation are issued a certificate of completion as evidence they have been rehabilitated.

   DFAT is aware of reports that more than 150 former LTTE members died of cancer after being in rehabilitation centres. Some Tamil political leaders, including former Northern Province Chief Minister C.V. Wigneswaran, raised allegations in 2015 and 2016 that former LTTE members received poisonous injections during rehabilitation resulting in fevers, heart disease and cancer. The Northern Provincial Council directed its health ministry to investigate over 200 allegations — it concluded there was no evidence of injections.

   The government has used the rehabilitation process to screen and profile LTTE members through interviews, informants and other relevant information to assess individuals’ depth of involvement with the LTTE, period of involvement and activities. Security forces can use such information to categorise individuals and potentially to determine whom to prosecute for terrorism or other offences. DFAT is not aware of specific cases where this has occurred.[1]

   …

   ‘Low-profile’ former LTTE members include former combatants, those employed in administrative or other roles, and those who may have provided a high level of non-military support to the LTTE during the war. DFAT assesses that, although the great majority of low-profile former LTTE members have been released following their rehabilitation, any low-profile former LTTE members who came to the attention of the Sri Lankan authorities, particularly if suspected of having a combat function during the war, would likely be detained and may be sent to the remaining rehabilitation centre. Following their release from rehabilitation, a low-profile former LTTE member might be monitored but would generally not be prosecuted.[2]

   [1] DFAT, Country Information Report – Sri Lanka, 4 November 2019, pp. 33- 35, paras [3.61] – [3.70].

   [2] DFAT, Country Information Report – Sri Lanka, 4 November 2019, p. 36, para [3.74].

4. Regarding returnees, the DFAT report notes the following:

   The constitution entitles any Sri Lankan citizen ‘the freedom to return to Sri Lanka’. The Immigrants and Emigrants Act (1948) (the I&E Act) governs exit and entry from Sri Lanka. 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, such as a seaport or airport, and without a valid passport. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine. Returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the I&E Act. If a returnee voluntarily returns on their own passport on a commercial flight, they may not come to the attention of local authorities if they had departed Sri Lanka legally through an official port on the same passport.

   Different agencies, including the Department of Immigration and Emigration, the State Intelligence Service, the Criminal Investigation Department and, at times, the Terrorism Investigation Division process returnees at Colombo’s Bandaranaike International Airport, including those on charter flights from Australia. These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Australian officials based in Colombo may meet charter flights carrying voluntary and involuntary returnees. The IOM meets assisted voluntary returnees after immigration clearance at the airport and provides some cash and onward transportation assistance. Processing of returnees at the airport can take several hours, due to the administrative processes, interview lengths and staffing constraints. Returnees are processed in groups, and individuals cannot exit the airport until all returnees have been processed, although returnees are free to go to the bathroom and to talk to one another during this time.

   For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. All returnees are subject to these standard procedures, regardless of ethnicity and religion. DFAT understands detainees are not subject to mistreatment during processing at the airport.[3]

   [3] DFAT, Country Information Report – Sri Lanka, 4 November 2019, pp. 66 – 67, paras [5.31] – [5.33].

5. UNHCR’s July 2012 report ‘Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka’ states, in part:

   … At the height of its influence in Sri Lanka in 2000-2001, the LTTE controlled and administered 76% of what are now the northern and eastern provinces of Sri Lanka. Therefore, all persons living in those areas, and at the outer fringes of the areas under LTTE control, necessarily had contact with the LTTE and its civilian administration in their daily lives. Originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection in the sense of the 1951 Convention and its 1967 Protocol.[4]

   [4] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012, p. 25 >

   The 2013 decision of the United Kingdom Upper Tribunal (Immigration and Asylum Chamber) in GJ and others (post-civil war returnees) Sri Lanka CG [2013] UKUT 00319 (AIC) comprehensively considered the available information on the treatment of Tamils in Sri Lanka and the treatment of those returning. It is a decision that is designed to guide UK decision makers.  The decision qualifies the risk category relating to those with actual or perceived connections to the LTTE.  It states that the establishment of former links to the LTTE are not determinative of an asylum claim today :

   It is not established that previous LTTE connections or sympathies (whether direct or familial), are perceived by the GOSL as indicating now that an individual poses a destabilising threat in post-conflict Sri Lanka; as indicated in the UNCHR Guidelines and in the evidence before us, the extent to which past links predict future adverse interest will always be fact specific, and for those with close links to the LTTE’s operations during the war, the exclusion clauses may well be relevant. ^[5]

   …

   The government’s present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state enshrined in Amendment 6(1) to the Sri Lankan Constitution in 1983, which prohibits the ‘violation of territorial integrity’ of Sri Lanka.  Its focus is on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organisation and (b) the revival of the civil war within Sri Lanka.[6]

   [5] GJ and others (post-civil war returnees) Sri Lanka CG [2013] UKUT 00319 (AIC), para 325

   [6]Ibid, para. 356(3)

6. The decision lists risk categories of those who are subject to persecution or serious harm, including: 

   Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.[7]

   [7] Ibid, para.356(7)(a)

7. It goes on to state:

   The Sri Lankan authorities’ approach is based on sophisticated intelligence,
   both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities
   know that many Sri Lankan Tamils travelled abroad as economic migrants and also
   that everyone in the Northern Province had some level of involvement with the
   LTTE during the civil war. In post-conflict Sri Lanka, an individual’s past history
   will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government.[8]

   ACMC and Rishard Bathiudeen

   [8] Ibid para. 356(8)

8. The Tribunal requested the Country of Origin Information Services of the Department of Home Affairs to undertake research into the ACMC and its leader Rishard Bathiudeen.  This response was provided on 10 December 2019:

   Please provide background information on Rishad Bathiudeen and the ACMC and the party’s relationship with the UNP.

   Rishad Bathiudeen is the leader of the All Ceylon Makkal Congress (ACMC – sometimes referred to as the All Ceylon Muslim Congress), one of Sri Lanka’s two main Muslim parties.[9] Until November 2019 he served as Minister of Industry and Commerce and Minister for the Resettlement of Displaced Persons and Co-operative Development in the government of President Maithripala Sirisena.[10] Further background information about Bathiudeen and the ACMC is outlined below.

   [9] ‘National Leader’, All Ceylon Makkal Congress, n.d. (accessed 28 June 2018), CIS7B839411483

   [10] ‘Rishad Bathiudeen’, Facebook, n.d. (accessed 9 December 2019), 20191209135905

   Rishad Bathiudeen

   According to the website of the ACMC, Bathiudeen, who was born in 1972, holds a National Diploma in Technology in Civil Engineering from the University of Moratuwa and is a member of the Chartered Institute of Engineering in the United Kingdom.[11]  He was elected as a member of parliament from the Vanni electoral district in December 2001, which comprises the Vavuniya, Mannar and Mullaithivu administrative districts.[12]

   [11] ‘National Leader’, All Ceylon Makkal Congress, n.d. (accessed 28 June 2018), CIS7B839411483

   [12] ‘National Leader’, All Ceylon Makkal Congress, n.d. (accessed 28 June 2018), CIS7B839411483

   Bathiudeen was initially a member of the Sri Lanka Muslim Congress (SLMC) – the country’s largest Muslim party.[13] In May 2004, he and a number of others were suspended and later sacked from the SLMC over allegations of a plot to oust leader Rauff Hakeem.[14] In October 2005, Bathiudeen and a number of other former SLMC members formed the ACMC.[15]  Bathiudeen served as Minister of Industry and Commerce and Minister of Resettlement and Disaster Relief Services in the government of Mahinda Rajapaksa (president from 2005 to 2015).[16] However, in December 2014, Bathiudeen pledged his party’s support for Maithripala Sirisena’s candidacy for president in 2015, accusing Rajapaksa of failing to restrain the Bodu Bala Sena (BBS) – a radical Buddhist group that has been involved in anti-Muslim attacks.[17]

   [13] ‘SLMC suspends three MPs over opposition to Hakeem’, TamilNet, 19 May 2004, 20191209140130

   [14] ‘SLMC suspends three MPs over opposition to Hakeem’, TamilNet, 19 May 2004, 20191209140130; ‘Dissident SLMC parliamentarians reject charges’, TamilNet, 29 May 2004, 20191209140347; ‘SLMC high command sacks three parliamentarians’, TamilNet, 30 May 2004, 20191209140550

   [15] ‘SC Application Special [Expulsion[ No. 01/2009’, Supreme Court of the Democratic Socialist Republic of Sri Lanka, n.d. (accessed 9 December 2019), 20191209140816

   [16] ‘Rajapaksa’s Muslim ally defects to opposition’, The Hindu, 22 December 2014, 20191209141147; ‘Rishad Bathiudeen – Minister of Industry and Commerce’, United Nations Industrial Development Organization, n.d. (accessed 6 December 2019),20191209141810

   [17] ‘Rajapaksa’s Muslim ally defects to opposition’, The Hindu, 22 December 2014, 20191209141147

   Following Sirisena’s election, Bathiudeen served as Minister of Industry and Commerce and Minister for the Resettlement of Displaced Persons and Co-operative Development.[18]  According to a 29 May 2019 Colombo Telegraph article, ‘Bathiudeen is no stranger to controversy:’

   [18] ‘National Leader’, All Ceylon Makkal Congress, n.d. (accessed 28 June 2018), CIS7B839411483; ‘Rishad Bathiudeen’, Facebook, n.d. (accessed 9 December 2019), 20191209135905

   In 2012, he was accused of threatening the Mannar District Court Judge and Magistrate Anthony Pillai Judeson over the latter’s order to arrest a group of his supporters. As the controversy evolved, a part of the court was set on fire. According to reports, the Judge supposedly received threatening telephone calls from the minister to change his verdict failing which ‘the Mannar court would be torched.’ The calls, allegedly originating from the minister’s mobile phone, was denied and subsequently attributed to his brother. This minister’s siblings seem to have a way with ministerial phones and vehicles. After much brouhaha, the matter died a natural death. RB [Bathiudeen] continued as a Minister. Nothing is heard of Judge Judeson since.[19] 

   [19] ‘What Is Special About Rishard Bathiudeen’, Colombo Telegraph, 29 May 2019, 20191209142254

   On 24 November 2019, it was reported that a convoy carrying Bathiudeen was attacked in Puttalam as he travelled to meet supporters.[20]

   [20] ‘ACMC leader Rishad Bathiudeen’s vehicle convoy comes under attack’, Colombo Page, 24 November 2019, 20191209142533

   All Ceylon Makkal Congress (ACMC)

   Bathiudeen is the leader of the ACMC. As noted above, Bathiudeen and a number of other former SLMC members formed the party in 2005.[21] The party currently holds five seat in parliament,[22] and, according to its website, its main objectives are:

   [21] ‘SC Application Special [Expulsion[ No. 01/2009’, Supreme Court of the Democratic Socialist Republic of Sri Lanka, n.d. (accessed 9 December 2019), 20191209140816

   [22] 'DFAT Country Information Report Sri Lanka', Department of Foreign Affairs and Trade, 4 November 2019, p.28, 20191104135244; ‘National Leader’, All Ceylon Makkal Congress, n.d. (accessed 28 June 2018), CIS7B839411483; ‘Sri Lanka Muslim ministers quit to protest ‘threat to community’, Aljazeera, 4 June 2019, 20190605102038

   01. Although the majority of the country is Sinhalese, and the Muslims and Tamils should not be grouped under the category of minorities, considering the numbers it should be ensured that they have to be equally treated in all circumstances.

   02. The Muslims who were forcibly evicted by the terrorists and the people who were displaced due to the civil war have to be provided with an environment conducive to live with dignity by resettling at their own places of origin.

   03. While ensuring the religious freedom of the Muslims and Tamils living in all parts of the island including North and East, assisting these people to improve their religious rites and the religious sites have to be developed. And at the same time rising against those racists who disturbs religious amity.

   04. Ensure the Muslims, Tamils and other races to obtain their natural and fundamental rights without any difficulty and to provide them with a suitable environment to enjoy those rights.

   05. Action has to be undertaken to offer all ethnic communities with a peaceful and a healthy life in the post-war Sri Lanka and also to provide them with all employment and development opportunities on the basis of ethnic proportion.

   06. Although the Government which includes All Ceylon Makkal Congress has brought constitutional amendments and power-sharing within the Sri Lankan territory. If the legal provision found to be offending the second and third ethnic groups Tamils and Muslims, we will fight against it.

   07. To protect and to voice for the rights and aspirations of the Muslims under the democratic political arena, to recover the places captured and to safeguard the existing living places.

   08. While removing the contradictions found among us, if there are obstacles for the future generations to enjoy the peaceful environment and good qualities and cultural values, action will be taken to remove them and to commit ourselves.[23]

   [23] ‘Vision & Mission’, All Ceylon Makkal Congress, n.d. (accessed 6 December 2019), 20191209142823 

   Relationship with the United National Party

   The ACMC served in both the governments of former presidents Mahinda Rajapaksa (2005 to 2015) and Maithripala Sirisena (2015 to 2019) – the latter a coalition in which the United National Party (UNP), led by Prime Minister Ranil Wickremesinghe, was the main party.[24]  The ACMC also backed UNP candidate Sajith Premadasa’s bid for president in November 2019[25] and has sat in opposition since the Sri Lanka Podujana Peramuna (SLPP)-led government of President Gotabaya Rajapaksa was formed following the elections.[26]

   [24] Rajapaksa’s Muslim ally defects to opposition’, The Hindu, 22 December 2014, 20191209141147; 'DFAT Country Information Report Sri Lanka', Department of Foreign Affairs and Trade, 4 November 2019, p.28, 20191104135244; ‘National Leader’, All Ceylon Makkal Congress, n.d. (accessed 28 June 2018), CIS7B839411483; ‘Sri Lanka Muslim ministers quit to protest ‘threat to community’, Aljazeera, 4 June 2019, 20190605102038

   [25] 'Support Sajith or minorities could suffer - Hakeem', Daily News Sri Lanka, 28 October 2019, 20191028114803; 'Agreement to form DNF signed', Daily Mirror (Sri Lanka), 1 November 2019, 20191104115258; 'Majority of the Sri Lankan minorities now support Sajith Premadasa, Muslim party leader says', Colombo Page, 05 November 2019, 20191105110701

   [26] ‘Sri Lanka Muslim party leader ‘fine’ with lack of Muslim ministers in new government’, Colombo Page, 7 December 2019, 20191209095206

   Please provide information concerning whether Rishad Bathiudeen was accused of being implicated in the Easter 2019 bombings, whether he lost his ministerial post, and the subsequent outcome.

   Following the Easter Sunday 2019 terrorist bombings, All Ceylon Makkal Congress (ACMC) leader Rishad Bathiudeen faced a number of serious allegations, including that he had links to some of the individuals responsible and that he pressured the army to release suspects arrested in connection to the attacks.[27] Hard-line Buddhist monks pressured the government of President Maithripala Sirisena to sack Bathiudeen and two Muslim provincial governors also accused of links to Islamist groups.[28] For example, Galagoda Aththe Gnanasara, the leader of the hard-line Bodu Bala Sena, threatened to press for national protests if the three were not removed from their posts,[29] while Buddhist monk and opposition lawmaker Athuraliye Ratana Thero launched a hunger strike on 31 May 2019 calling for their resignations.[30] Thousands of people led by Buddhist monks also participated in demonstrations in Kandy demanding the resignations.[31]

   [27] ‘Sri Lanka Muslim officials quit in solidarity with minister accused of Islamist ties’, Reuters, 4 June 2019, 20190604162028

   [28] ‘Sri Lanka Muslim officials quit in solidarity with minister accused of Islamist ties’, Reuters, 4 June 2019, 20190604162028; ‘Sri Lanka Muslim ministers quit to protest ‘threat to community’, Aljazeera, 4 June 2019, 20190605102038

   [29] ‘Cardinal visits fasting lawmaker monk as protests spread in support of his demand to remove Muslim politicians’, Colombo Page, 3 June 2019, 20190604161223; ‘Sri Lanka Muslim officials quit in solidarity with minister accused of Islamist ties’, Reuters, 4 June 2019, 20190604162028

   [30] ‘Cardinal visits fasting lawmaker monk as protests spread in support of his demand to remove Muslim politicians’, Colombo Page, 3 June 2019, 20190604161223

   [31] ‘Sri Lanka Muslim ministers quit to protest ‘threat to community’, Aljazeera, 4 June 2019, 20190605102038

   In the face of this campaign, on 4 June 2019 all of Sri Lanka’s nine Muslim ministers – including Bathiudeen – and their deputies resigned from their portfolios, accusing the government of failing to guarantee the security of the Muslim community following the Easter Sunday bombings.[32]  Rauff Hakeem, the leader of the Sri Lanka Muslim Congress, said he hoped the move would give the government time to investigate the allegations against Bathiudeen and the two provincial governors.[33]

   [32] ‘Sri Lanka Muslim ministers quit to protest ‘threat to community’, Aljazeera, 4 June 2019, 20190605102038

   [33]  ‘Sri Lanka Muslim ministers quit to protest ‘threat to community’, Aljazeera, 4 June 2019, 20190605102038

   At the time of his resignation, Bathiudeen was also facing a planned no-confidence motion by supporters of former President Mahinda Rajapaksa that contained 10 accusations against him. These included allegations that he provided ammunition to a factory owned by one of the Easter Sunday bombers and that he had pressured the army to release suspects arrested in connection to the attacks.[34] As part of this, Bathiudeen was alleged to have tried to influence the commander of the army to release the son of an acquaintance – an allegation that the army chief subsequently denied occurred.[35] According to a May 2019 Colombo Telegraph article:

   [34] ‘Sri Lanka Muslim officials quit in solidarity with minister accused of Islamist ties’, Reuters, 4 June 2019, 20190604162028

   [35] 'Rishad cleared of allegations by CID - Ranil', Daily Mirror (Sri Lanka), 15 July 2019, 20190718100124

   Two such charges are; 

   The minister’s brother Rifkan Bathiudeen has driven past two army checkpoints in a vehicle bearing registration WP KK 3572 with the state emblem and VIP sticker. He was subsequently discovered in a house owned by RB, detained and released without being produced in court due to political pressure. 

   RB has confirmed he contacted Army Commander Mahesh Senanayake to inquire of the son of Muslim Affairs Ministry Advisor Jainudeen, arrested by the army and handed over to the Terrorist Investigation Division. According to media reports, Muslim Affairs Minister Haleem’s staff had confirmed there had been no Jainudeen in the minister’s staff. An advisor by the name of Moinudeen had resigned in April or May. Was the minister assisting Jainudeen or Moinudeen? Was it a slip between the cup and the lip? RB claims he contacted the army commander on the advice of State Minister of Defense Ruwan Wijewardene who seems to be playing politics. He has neither confirmed nor denied the claim to date.[36] 

   A subsequent police investigation into the allegations against Bathiudeen did not establish any connection between Bathiudeen and the Easter Sunday attacks or to any terrorist activities.[37] Eight of the nine Muslim ministers returned to their ministerial and cabinet positions in June, July and August 2019.[38] Bathiudeen himself was sworn in as minister again on 29 July 2019,[39] and subsequently accused the government of having failed to protect himself and the other Muslim ministers.[40]

   More recently, a December 2019 Colombo Page report quotes Bathiudeen as accusing the current government of President Gotabaya Rajapaksa of having used the Easter Sunday attacks to stoke anti-Muslim fear among Sinhalese voters in order to win the November 2019 presidential election:[41]

   They cannot politically market Sahran again in the forthcoming general elections. Therefore they need a new target. That is us, Muslim leaders-mainly I and leader of SLMC Rauff Hakeem. However, this is very wrong. Both I and Hakeem are democratically elected Muslim political leaders and not in any way similar to Sahran" Bathiudeen said.[42]

   Please provide details of harm or difficulties faced by supporters of Bathiudeen/ACML following the Easter 2019 bombings as a result of anti-Muslim sentiment. The Tribunal particularly requests any information as to difficulties suffered by supporters in the Northern Province.

   No specific information was found regarding incidents of harm or difficulties faced by supporters of Rishad Bathiudeen or the ACMC, particularly in the Northern Province, following the Easter Sunday bombings. Information is available about incidents of harm or discrimination against Muslims more generally since the attacks.[43] On 24 May 2019, Dr Mohamed Shafi, a Muslim doctor in Kurunegala (North Western Province) was detained on suspicion of having sterilised thousands of Sinhalese women without their consent. The arrest followed a front-page newspaper story claiming an unspecified doctor had sterilised 4000 women after performing caesarean sections. Dr Shafi was released on bail on 25 July 2019 after police found no substantial evidence against him.[44] Reports were found stating that Dr Shafi is an ACMC member and a candidate for the party at the 2015 elections, although it appears this fact was incidental to the allegations made against him.[45]

   [36] ‘What Is Special About Rishard Bathiudeen’, Colombo Telegraph, 29 May 2019, 20191209142254

   [37]  'Rishad cleared of allegations by CID - Ranil', Daily Mirror (Sri Lanka), 15 July 2019, 20190718100124; 'Report of the Select Committee of Parliament to look into and report to Parliament on the Terrorist Attacks that took place in different places in Sri Lanka on 21st April 2019', Parliament of the Democratic Socialist Republic of Sri Lanka, 24 October 2019, p.187, 20191024125632

   [38] 'DFAT Country Information Report Sri Lanka', Department of Foreign Affairs and Trade, 4 November 2019, p.28, 20191104135244

   [39] 'Muslim MPs resigned from their ministerial portfolios sworn-in again as Ministers', Colombo Page, 29 July 2019, 20190731154323

   [40] 'We were very hurt that UNP failed to stand together with us at this critical time: Rishad', Lanka Business Online, 30 July 2019, 20190731153912

   [41] ‘Sri Lanka Muslim party leader ‘fine’ with lack of Muslim ministers in new government’, Colombo Page, 7 December 2019, 20191209095206

   [42] ‘Sri Lanka Muslim party leader ‘fine’ with lack of Muslim ministers in new government’, Colombo Page, 7 December 2019, 20191209095206

   [43] E.g. 'DFAT Country Information Report Sri Lanka', Department of Foreign Affairs and Trade, 4 November 2019, pp.8-9, 28-30, 20191104135244

   [44] 'DFAT Country Information Report Sri Lanka', Department of Foreign Affairs and Trade, 4 November 2019, pp.28-29, 20191104135244

   [45] ‘Unsubstantiated Claims Muslim Doctor Sterilized Women Raise Tensions in Sri Lanka’, Reuters, 6 June 2019, 20191209143059; ‘Dr Shafi files FR petition challenging his arrest & detention’, Adaderana, 25 June 2019, 20191209143354

   Submissions and independent information from the applicant

1. The applicant’s migration agent provided a submission dated 26 July 2019 following the interview with the delegate. That document makes submissions in relation to various credibility concerns put by the delegate. The submission also details country information relating to Sri Lanka.

2. In relation to country information, information is cited which is indicated as supporting the position that Tamils in Sri Lanka are being repeatedly detained and tortured. It is indicated that reports from July 2017 that the government has renewed the employment of an individual who allegedly ran one of the most notorious torture sites during the height of the war is symptomatic of the risk of the practice of torture being continued. Reference is made to a report in January 2017 of the UN special rapporteur on torture indicating that there is a culture of torture in Sri Lanka. It is noted that the report recommends that the Poonthottam ‘rehabilitation’ centre be closed down. The report indicates credible reports (up to April 2016) of ‘white van’ abductions by officers in plain clothes believed to belong to the CID or TID. It is submitted that the level of the applicant’s involvement with the LTTE would be viewed by the government as a current security risk.

3. The report indicates that anyone deemed to have had links to the LTTE during the conflict may remain subject to extensive surveillance and intimidation by the military, intelligence and police forces. While the extent of this practice may have decreased since the end of the conflict, systematic surveillance and intimidation continues, sometimes constituting ill-treatment.

4. It is submitted that it is not the case that only ‘high level’ LTTE suspects are at risk of intimidation, surveillance and torture. US Department of State reports are also referred to as corroborating this, as is a Human Rights Watch report of 2017.

5. It is submitted that country information supports the position that the applicant will be arbitrarily detained and tortured on return to Sri Lanka as it is now known that he was an LTTE member.  The applicant would not be protected merely because he only had ‘low level’ involvement in the LTTE. This is submitted as being demonstrated by a 2017 report of the International Truth and Justice Project.

6. The UNHCR’s 2012 eligibility guidelines are submitted as including the applicant having a profile as a former LTTE combatant or cadre as being in need of international protection. (The Tribunal notes that these eligibility guidelines are no longer in place).

7. In accordance with risk profiles in a 2013 determination by the United Kingdom Upper Tribunal it is submitted that the applicant falls within two of the risk profiles as facing a real risk of persecution or serious harm on return to Sri Lanka. It is submitted that the applicant would fit into the category of a person who is perceived to have had a significant role in post-conflict Tamil separatism/or a renewal of hostilities within Sri Lanka.

8. It is further submitted that the applicant would appear on computerised ‘stop’ lists accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Such individuals would be stopped at the airport and handed over to appropriate Sri Lankan authorities. It is indicated that the Upper Tribunal refers to sophisticated intelligence measures of the Sri Lankan authorities.

9. DFAT information is referred to as indicating that the applicant would be questioned and investigated upon his arrival at the airport in Sri Lanka, including in relation to having left Sri Lanka unlawfully.

10. A January 2017 UN report is submitted as establishing that if a person is detained for regular criminal investigation by the CID and TID they are subject to a risk of torture and cruel, inhuman and degrading treatment and the risk of serious harm is higher for persons who are perceived to be a threat to national security.

11. A June 2016 United Kingdom Home Office report refers to an International Crisis Group report of August 2015 noting that Tamils returning from abroad continued to be arrested under the Prevention of Terrorism Act on suspicion of LTTE involvement. Many are sent to military-run rehabilitation programs.

12. It is submitted that authorities in Sri Lanka would arrest, detain and interrogate the applicant believing that he is a national security threat to Sri Lanka.

13. It is submitted that even if the applicant manages to depart the airport and is not arrested for illegal departure there is a real chance he would come to the adverse attention of authorities if he returns to the Northern Province where he resided for many years. Reference is made to a UN report indicating heavy militarisation in the north and east of the country and the use of surveillance as a tool of control and intimidation.

14. It is submitted that the applicant’s Tamil ethnicity increases his risk of harm and the elements that make up his profile. It is submitted that whilst the Sirisena government was initially positive about international involvement in accountability mechanisms, this commitment has now waned.  Country information is cited as supporting this proposition.

15. A report by the United States Department of State from 2016 is referred to as suggesting a risk of torture and arbitrary arrest and detention to the applicant as a result of his association with the LTTE. Other independent information is cited as confirming this potential. It is submitted that this information supports the position that authorities continued to target persons perceived, even in a minor way, of having links to the LTTE.

16. Independent information is referred to as indicating the prevalence of surveillance by authorities particularly towards Tamils. It is submitted that as an identified LTTE member, the applicant would have to register with authorities. It is highly likely that his profile would immediately be brought to the attention of the CID and that he would be subject to an imminent risk of serious harm in the form of abduction, detention and torture.

17. Submissions were made that the applicant will face harm as a failed asylum seeker. A number of independent reports referred to individuals returning to Sri Lanka since the end of the civil war in May 2009 being tortured.

18. Submissions were made in relation to the applicant’s illegal exit of the country. A 2016 United States Department of State report has indicated that in practice, days, weeks or months elapsed before a detained person appeared before a magistrate, particularly in Prevention of Terrorism Act cases.  The report indicates that there are multiple reports of suspects detained incommunicado for extended periods without being charged. It is common for the length of detention to equal or exceed the sentence for the alleged crime. The report refers to overcrowding in prisons and the lack of due process.

19. Independent information is cited concerning problematic prison conditions in Sri Lanka. Submissions were made that detention, even on remand would meet relevant definitions of significant harm. It is submitted that Sri Lanka has adopted a policy of imprisonment of returnees who have infringed laws in relation to leaving Sri Lanka unlawfully and therefore must be imputed with having the intention to cause the cruel, inhuman and degrading treatment or punishment of the person.

20. The applicant’s representative provided a submission dated 7 December 2019 to the Tribunal in advance of the first hearing. That submission repeats the facts leading to the applicant’s claims for protection and the basis on which protection is claimed. In addition to information already provided, the Tribunal notes the following. It is indicated that on 22 September 2019, CID visited the applicant’s brother’s home and asked him to report the next day to an army camp for enquiry. The next day the applicant’s brother was interrogated about the applicant’s whereabouts and the applicant’s brother responded that the applicant no longer lived with him, and that he lived with his own family. The applicant’s brother informed the officer that the applicant had left the country. The applicant’s brother was warned to report to the army camp when the applicant returned.

21. The submission also indicates that the applicant fears that he will be interrogated about how he illegally left the country on a fraudulent passport. He fears that torture could be used to obtain confessions from him. He fears that investigations about how he left the country unlawfully will reveal his past in the LTTE.

22. Prior to the presidential elections in Sri Lanka on 16 November 2019, the applicant’s parents received a notice that the applicant’s voting rights had been cancelled as he was no longer in the country. A copy of the original and a translation of this notice is provided.

23. The submission makes general comments in terms of determining credibility. It is submitted that country information supports the notion that Sri Lankan authorities still treat with importance the identification of LTTE members. Amnesty International information from 2014 indicates that Sri Lankan authorities have continued to hunt down people who failed to admit their association with the LTTE. The report indicates that the treatment meted out by authorities to LTTE members who failed to surrender to authorities is harsh. Such individuals may be victims of torture and also face reintegration difficulties.

24. A 2014 report by Freedom House indicates that former LTTE fighters and their social circles face special scrutiny and are repeatedly questioned by authorities. It is submitted that whilst the DFAT report on Sri Lanka indicates that adverse incidents against LTTE members have significantly reduced since the end of the war this should not be read as finding, as the delegate did, that the risk of abduction is no longer in existence.

25. The DFAT report is cited as indicating the sensitivity of authorities to the re-emergence of the LTTE. DFAT’s indication that authorities maintain sophisticated intelligence and watch lists affirms the applicant’s fears that if the applicant was sent back to Sri Lanka, authorities would be aware of his arrival and take him away for interrogation.

26. The Tribunal was also provided with media reports from the internet. The first, dated 10 December 2019, relates to four persons trying to rejuvenate the LTTE being arrested. The second, also dated 10 December 2019, indicates Sri Lanka’s new defence secretary warning that the LTTE ideology remained active and pledging that the Sri Lankan military would have a ‘bigger role to play’ in years to come.

27. On 9 January 2020, after the hearings, a submission was provided on behalf of the applicant responding to multiple plausibility concerns put to the applicant in the hearings.

    Hearings, interviews, credibility, findings, and assessment

28. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.

29. In considering overall the credibility of the applicant, the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

30. The Tribunal is satisfied that the applicant is a citizen of Sri Lanka and accordingly his claims will be assessed against Sri Lanka.

31. As indicated, the applicant undertook an airport screening interview on arrival [in] June 2019 and two subsequent interviews with Australia Border Force prior to the interview with the delegate of the Minister in relation to the protection visa application. The applicant has also participated in two Tribunal hearings.

32. The applicant has provided mostly consistent and detailed evidence as to his claimed circumstances and difficulties in Sri Lanka. The delegate accepted that the applicant was forcibly recruited into the LTTE in 2008 and underwent training and then active combat before ending up in an internment camp at the end of the conflict where the applicant managed to evade being identified as an LTTE member. The applicant managed to escape from the internally displaced persons (IDP) camp. The delegate accepted that the applicant had provided a truthful and credible account of these events. The Tribunal was similarly impressed with the detail and consistency provided by the applicant at the first Tribunal hearing in relation to his recruitment, training and active duty with the LTTE, the end of the conflict and his time in the IDP camp and eventual escape.

33. The delegate did not accept the applicant’s account of being accused by police when arrested in February 2019 of being involved in the LTTE or that an officer warned him of this fact and recommended that he used any contacts he may have in order to be released. The delegate did not accept that Minister Bathiudeen intervened to get the applicant released with reduced charges. The delegate did not accept that thereafter, [in] June 2019, that officials (army or CID) visited the applicant’s home looking for the applicant. The delegate did not accept that when the applicant learned of this visit [in] June 2019 that he made a complaint to police. The delegate did not accept that [in] June 2019 that the army came to the applicant’s home while he was there and took him. The delegate did not accept that the army took the applicant to a jungle location and abused and physically harmed him expressing displeasure that he had complained to the police about them and indicated that the applicant no longer had the support of the Minister. The delegate did not accept that the applicant escaped from the army officials and ran through the night and found himself in the town of a close family friend. The delegate did not accept that this person facilitated the necessary arrangements for the applicant to depart Sri Lanka between [date] June 2019 and his departure early in the morning on [date] June 2019.

34. The delegate mostly made adverse findings based on a lack of plausibility on multiple aspects of the applicant’s claims, including that they were contradictory to independent evidence.

35. The Tribunal in its two hearings questioned and explored with the applicant in very significant detail what he claimed had happened to him from February 2019 until his departure for Australia. The Tribunal explored his claimed detention by police in February 2019 and the circumstances of him being warned that he was to be accused of involvement with the LTTE and utilising his contacts with Minister Bathiudeen to avoid this. The Tribunal explored with the applicant his complaint to police [in] June 2019 about the army or CID visit to his home. The Tribunal explored with the applicant his claims of the officials coming for him at home that evening and taking him to the jungle where they interrogated, abused and physically harassed him. The Tribunal explored with the applicant his escape and the manner in which he found himself in the location of his close family friend.

36. The applicant in providing all of his evidence in relation to these issues in the hearings was mostly clear, confident and very detailed. The applicant provided details that were broadly consistent with his written claims as well as details provided in his four previous interviews. The applicant provided narratives, including peripheral contextual details, which gave the Tribunal the impression that the applicant was recounting events from actual experience.

37. In the first Tribunal hearing, the applicant provided a detailed account, including peripheral contextual matters, in relation to what happened when the army came to his home on the evening [in] June 2019. By way of seeking to test the applicant in relation to these claims, the Tribunal asked the applicant in the second hearing to recount again these events. The Tribunal was impressed that the applicant provided a consistent account, including making reference to contextual detail.

38. The Tribunal notes that there has been very significant questioning of the applicant in relation to his claims in multiple interviews and hearings. The applicant has in very significant respects provided a consistent account of events, including on matters of detail. In its careful scrutiny of his evidence over time, the Tribunal has only been able to ascertain two inconsistencies on matters of detail, for one of which the Tribunal considers there is a reasonable explanation.

39. One of those inconsistencies is the applicant’s indication to the delegate that he left his ‘uncle’s’ village on a [truck] at 5 am on the morning of [date] June 2019. This is in contrast to the applicant’s evidence in the first Tribunal hearing that he, in fact, left on the truck between 8 pm and 9 pm on the evening [date] June 2019. In the second hearing, the applicant indicated that he might have mistakenly indicated to the delegate that he left at 5 am due to the significant stress and confusion he was facing at the time because of being beaten by the army and having escaped from them. The applicant indicated that this situation had caused him significant trauma.

40. The other inconsistency that seemed apparent to the Tribunal was the fact that the applicant’s initial written claims stated that he had been ‘told by him’ (Minister Bathuideen) whilst in the police station to acknowledge to the court that he had entered a forest without a permit. This was in contrast to the applicant’s evidence in the first hearing that he had not spoken to the Minister while he was in the police station. The applicant had given evidence that on a visit by his brother on the morning of [date] June 2019, his brother had told him that the Minister had indicated he should accept the lesser charges.

41. In response to this inconsistency in the hearing, the applicant maintained that he had not directly spoken with the Minister. The Tribunal did indicate that it could accept that this expression might be interpreted as conveying that the message had been conveyed through a third person. The applicant’s representative indicated that the apparent inconsistency was simply a product of a slight confusion in the way the evidence was phrased in the written claims. This is plausible.

42. Thus, the Tribunal has only been able to identify one factual inconsistency in all of the applicant’s claims notwithstanding four interviews and two hearings. The inconsistency as to the time that the truck left the ‘uncle’s’ village is a minor inconsistency. The Tribunal accepts that it could be a matter on which the applicant is confused as a result of the stress he was under due to the matters that he claims have happened to him.

1. Having said that, there are nevertheless multiple plausibility concerns, including in relation to what independent information might point to.  The Tribunal does acknowledge that the fact that something is implausible does not mean that it did not happen. Unlikely events can occur. However, there are multiple plausibility issues in the applicant’s claims, at least 10 of which were discussed with the applicant in the second Tribunal hearing.

2. A plausibility concern is the fact that no official allegation was put to the applicant at the police station in February 2012 that he had been accused of being in the LTTE. It had only been mentioned informally by the police officer that brought the applicant his dinner. In the second hearing the applicant could not explain why this was the case. It was implausible that this Sinhalese officer would risk his situation by warning the applicant and recommending that he seek assistance from influential individuals if he had access to them. In relation to the implausibility of arrangements being facilitated through the Minister in such a short timeframe, the applicant in the second hearing indicated that his father was a politician and had ready access to the Minister and the Minister did not want the allegation of a campaign worker, the applicant, being accused of being in the LTTE and therefore facilitated arrangements quickly.

3. In relation to the credibility of how the army would have known that the police had dropped charges based on the intervention of the Minister, the applicant indicated that authorities always communicate amongst themselves.

4. A significant plausibility concern is why the applicant would have complained to the police about the visit of the army or the CID to his mother [in] June 2019. The Tribunal might think that government officials and agencies would be considered collectively and that the applicant would not complain about one security agency, the army or CID, to another, the police. In response, the applicant indicated that he had no choice but to complain to the police as this was the only positive action he could take. The applicant indicated that it was not until the army later indicated when they took him on the evening of [date] June 2019 that he realised there was such a close relationship between the army and the police based on the fact that the army had specifically known that Minister Bathuideen’s influence had been used to facilitate the dropping of charges that the applicant was involved with the LTTE.

5. In relation to the implausibility as to how the applicant would have been able to escape from the army when there were 10 men or that he would be left on his own with the opportunity to escape, the applicant indicated that the men were drunk. The applicant also indicated that he had sought to play up his state of infirmity as a result of the injuries that had been inflicted upon him possibly causing the army to consider that he was not physically capable of escaping. This also possibly explains why the applicant was not re-handcuffed when the army men left the room.

6. The Tribunal noted to the applicant the extraordinary coincidence in him after running for several hours after escaping from the army. arriving in the early morning in the very town of a close family friend, who was then in a position to facilitate, in a very short period of time, necessary arrangements for the friend and the applicant to travel to Colombo as the first steps in the applicant leaving the country. In response, the applicant gave emotional evidence as to the very close bond between this family friend and the applicant and his family. The applicant did not otherwise explain the extraordinary coincidence in his arriving that very morning in the location of this very supportive and proactive individual.

7. The Tribunal finds it implausible that all of the necessary arrangements to facilitate the applicant’s departure from Sri Lanka were made between [date] June 2019 and the applicant’s departure for Australia early on the morning of [date] June 2019. This would have required someone to facilitate the fraudulent passport used by the applicant to travel to Australia, money to have been raised for the purpose of the trip and paying the agent, and tickets to have been arranged. In response, the applicant indicated that he left all of the arrangements to his uncle. He was very anxious and upset by what had happened to him and was crying much of the time. The applicant indicated that in a telephone conversation with his mother she indicated that his ‘uncle’ would do everything and not to unduly question him.

8. The Tribunal also has evidentiary issues with the applicant’s evidence about his passport photograph used in the fraudulent passport. The applicant indicated to the delegate that this photograph might have been cropped from a family photograph, such as at a wedding.  The delegate noted that the photograph appears to have the look and feel of a photograph taken specifically for the purpose of a passport rather than appearing to be a family photograph. In the Tribunal hearing, the applicant indicated that after giving this evidence he made inquiries of his family in Sri Lanka who advised him that his ‘uncle’ had obtained this photograph from the applicant’s brother [in] June 2019. This had indeed been a photograph that had been taken of the applicant for the purpose of the renewal of his legitimate passport. The Tribunal has some credibility concerns in relation to this changed evidence. The Tribunal is also concerned that the applicant would not previously have been aware of the provenance of the photograph that had been utilised in his fraudulent passport. The Tribunal considers that the applicant would likely have been acutely aware of checking the fraudulent passport and its photograph given that it was to be used for the very important matter of the applicant’s safe escape from Sri Lanka.

9. The Tribunal finds some of the applicant’s claims implausible in the context of independent information that suggests a waning interest in Sri Lankan authorities taking action against former LTTE combatants on that basis alone. The weight of independent evidence suggests that the key current concern of Sri Lankan authorities is to guard against post-conflict separatism. It is thus those who are suspected of being involved in post-conflict separatism who are most likely to be targeted by authorities.

10. As set out, there are significant plausibility and credibility concerns with a not insignificant number of the applicant’s claims. The Tribunal draws a not insignificant degree of adverse inference in relation to the truth of core claims made by the applicant as a result of these implausible matters. The implausibility has caused significant scrutiny of the applicant’s claims and evidence, including in the questions asked by the applicant in the two Tribunal hearings.

11. Those concerns are to be weighed against the very significant extent of the consistencies and detail over time in the applicant’s evidence, including in multiple interviews and hearings. The Tribunal reiterates that the applicant in relation to core aspects of his claims gave evidence in detail including peripheral contextual details, which gave the Tribunal the impression that the applicant was recounting events from actual experience.

12. The Tribunal does accept the possibility that evidence has been very carefully remembered and rehearsed, given the credibility and plausibility issues. However, the Tribunal is of the view that the consistency and detail provided by the applicant in interviews and hearings, is not suggestive of a recounting of events from memory and rehearsal.

13. On balance, and considering the potentially very serious consequences for the applicant if the Tribunal gets it wrong, the Tribunal considers that it must give the applicant the benefit of the doubt. This is particularly the case given that the many evidentiary concerns are inconsistencies rather than mostly matters of plausibility. As indicated, the fact that something is implausible does not mean that it did not happen.

14. Although the independent information suggests that the level of government interest in an individual who was a low level LTTE member is waning, the evidence does not positively establish that there would be no adverse interest in such an individual. Indeed the DFAT report refers to those discovered to have been low-level LTTE members are likely to be detained and sent to the remaining rehabilitation centre. The Tribunal is satisfied that there has been a recent adverse interest by government authorities as a result of the applicant’s past LTTE involvement.

15. Considering all of the evidence, the Tribunal is satisfied that the applicant was recruited into the LTTE in 2008 and served in active duty. The Tribunal is satisfied that the applicant was in an IDP camp in 2009 but was not identified as an LTTE combatant. The Tribunal is satisfied that the applicant escaped from the IDP camp without it being identified that he was missing. The Tribunal considers on the evidence that the applicant had no problems from authorities between leaving the IDP camp and February 2019. These findings are made by the Tribunal unequivocally and without hesitation.

16. The Tribunal is less clear in terms of its findings as to what happened to the applicant from February 2019 until he departed Sri Lanka in June 2019. However, given the Tribunal is of view that it must give the applicant the benefit of the doubt, and the detail and consistency of his claims over time, the Tribunal accepts core claims as to what the applicant has indicated happened to him from February 2019 until leaving Sri Lanka.

17. The Tribunal is satisfied that the applicant was identified as being a member of the LTTE while the applicant was detained for being in an unauthorised area and possibly suspected of [an offence]. The Tribunal is satisfied that the applicant sought the assistance of Minister Bathuideen to have him released. The Tribunal is satisfied that individuals in the army learned of the applicant’s past in the LTTE, went to his home and accosted him, and took him to a location in the jungle. The Tribunal is satisfied that the army abused and physically harmed the applicant. The Tribunal is satisfied that the applicant escaped. The Tribunal is satisfied that the applicant, with the services of a family friend, and the raising of necessary money and the obtaining of fraudulent travel documents, made arrangements to leave Sri Lanka under another identity.

18. The Tribunal is satisfied that Sri Lankan authorities have targeted the applicant as having previously been involved in the LTTE and have sought to take action in relation to this. The Tribunal is satisfied that the applicant escaped from capture and questioning.

19. The applicant in the second Tribunal hearing indicated that he had been originally targeted and arrested by police in February 2019 because of his association with Minister Bathuideen and the implication that the applicant was supportive of Muslims with whom there were tensions in the applicant’s predominantly Tamil area. The Tribunal accepts the potential for this to have been a compounding factor in the adverse attention and treatment towards the applicant by authorities.

20. The DFAT information indicates that on arrival at the airport in Sri Lanka from Australia the applicant will be subject to scrutiny and investigation by authorities with relevant databases checked as to outstanding criminal matters and if the individual is a person of interest. In light of the Tribunal’s satisfaction that the applicant has recently been targeted by individuals in the army as having been involved in the LTTE and has been captured by them and subsequently escaped, the Tribunal is satisfied that the applicant will be flagged for adverse attention on government systems. On that basis, the Tribunal considers that, at the airport, the applicant will be identified as a combatant in the LTTE not subject to rehabilitation.

21. The Tribunal is satisfied that the weight of independent information in relation to the propensity of Sri Lankan authorities to physical mistreatment, including torture, of those in detention who are of adverse security interest, demonstrates that the applicant faces a chance, that is not remote, of being subject to such treatment during the process of his detention and interrogation as a result of being flagged on government systems as having been involved in the LTTE.

22. The Tribunal is satisfied, on that basis, that there is a real chance of the applicant facing serious harm, being significant physical harassment or significant ill treatment during the process of detention and interrogation. The Tribunal is satisfied that the reason for the persecution would be as a result of the applicant’s political opinion, namely having been a supporter of the LTTE and/or having been an active combatant. The Tribunal therefore considers that the applicant faces persecution for a reason set out in s.5J(1) of the Act. The Tribunal considers that the persecution would be for the essential and significant reason of the applicant’s political opinion as per s.5J(4)(a) of the Act. The Tribunal is satisfied that the persecution would involve systematic and discriminatory conduct as per s.5J(4)(c) of the Act.

23. As the real chance of persecution relates to persecution from agencies of the Sri Lankan government and that the applicant has a real chance of being persecuted from being identified at the airport when he enters the country, the Tribunal is satisfied that the real chance of persecution relates to all areas of Sri Lanka (s.5J(1)(c) of the Act).

24. The Tribunal is satisfied that the applicant does not have a right to enter or reside in any third country.

25. In summary, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for reason of his political opinion.

26. 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

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

    David McCulloch
    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.

    …