1925524 (Refugee)

[2023] AATA 1512

1925524 (Refugee) [2023] AATA 1512 (17 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Mahalingam Sutharshan (MARN: 0961664)

CASE NUMBER:  1925524

COUNTRY OF REFERENCE:                   Sri Lanka

DEPUTY PRESIDENT:  Antoinette Younes

DATE:17 March 2023

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 17 March 2023 at 9:52am

CATCHWORDS

REFUGEE – Protection Visa – Sri Lanka – race – Tamil ethnicity – religion – imputed political opinions – potential false accusations of being a member of the LTTE – membership of a particular social group – a failed asylum seeker – young Tamil male – applicant’s activities in Australia give him a profile of interest to the Sri Lankan authorities – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5H, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 14 December 2012 and the delegate refused to grant the visa on 25 September 2013.

3. The matter was before the Tribunal previously (differently constituted). On 28 June 2016, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa. The applicant sought judicial appeal, and on 20 August 2019, the court remitted the matter to the Tribunal to be determined according to law.

4. The applicant appeared before the Tribunal on 22 February 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

5. The applicant was represented in relation to the review.

6. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

RELEVANT LAW

1. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, the applicant 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.

Refugee criterion

1. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

2. Australia is a party to the Refugees Convention and, generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

3. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

4. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

5. Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

6. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

7. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

8. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

9. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well‑founded and whether the conduct giving rise to the fear is persecution.

10. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

1. 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 a protection 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 the applicant 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’).

2. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s 5(1) of the Act.

3. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

Mandatory considerations

1. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations.

2. In support of the application for a protection visa, the applicant provided a Statutory Declaration setting out his claims. He explained that during an Entry Interview with a Departmental officer held in August 2012, he was asked to provide a brief outline of his claims, and as such, he did not raise all of his claims at that stage. Moreover, at that stage, the legal requirements and relevance had not been explained to him. In summary, the applicant claimed that:

   a)He is [age] years old, a Sri Lankan citizen, and he was born in [Village 1], Puttalam,[1] Sri Lanka. He is of Tamil ethnicity and his faith is Hinduism. He has never married and he has no children. His parents and [sisters] remain in Sri Lanka, although his father is in hiding and moving frequently from one place to another.

   b)He has always lived in Sri Lanka but left due to fear of getting killed. He lived in fear of being harmed by the Sri Lankan authorities on the grounds of his Tamil ethnicity, and imputed political opinion based on potential false accusations of being a member of the LTTE, simply due to ethnicity. Tamil males are accused of being members of the LTTE. If a Tamil has lived in an area occupied by the LTTE, they would be suspected of being LTTE. In Sri Lanka, Tamil males are “guilty until proven innocent”.[2]

   c)Since finishing school, he worked as a fisherman, which is a low paid job insufficient to support a family. As a Tamil, he faced limited work opportunities as Singhalese people would not employ Tamils. Tamils are denied employment based on their ethnicity. When he was at sea, Singhalese fishermen approached his boat and hit him with their boat paddles. He was verbally abused and threatened to be killed. He was beaten on many occasions, and he feared going to work. He reported those incidents to the police but they did nothing. The police are Singhalese and never protect Tamils. He was forced to leave his job in the middle of 2010, because the threats and attacks did not stop. He later worked at a [farm], and although he did not have any problems, the working conditions were poor, including long hours without any occupational health and safety measures.

   d)In 2011, his father returned home from work as a fisherman in [Town 2] where he had been working since 2007. The family did not know that he was still alive because they had not heard from him for a long time. [Town 2] was an LTTE controlled area during the war.

   e)In 2012, plain-clothed CID came to the family home looking for his father. The CID had been investigating Tamils in [Village 2] who had lived in [Town 2] when the LTTE was in control. His father was not home at that time; he was at work. They threatened his mother. He spoke with them and they beat him and his mother pleaded with them to stop. They left but returned in March 2012 but his father was out of the home. The officers went looking for his father and returned. They physically assaulted the applicant and threatened his mother. His uncle assisted him to flee Sri Lanka. Since leaving, his mother told him that the family is fine but he does not believe her as she does not want to upset him.

   f)He fears returning to Sri Lanka as he would be seriously harmed by the authorities on the grounds of his Tamil ethnicity and imputed political opinion based on being his father’s son because his father lived in [Town 2] and has been accused of being a member of the LTTE. The Sri Lankan authorities did not assist him; they are corrupt. The CID would harm him and he would not be able to seek protection. He cannot relocate for lack of funds, and he would be denied accommodation and employment in Singhalese controlled areas, which is the majority of Sri Lanka.

   [1] North Western Province of Sri Lanka.

   [2] Statutory Declaration of the applicant dated 30 November 2012, at page 2.

3. In submissions provided to the Department,[3] the applicant provided additional information. Essentially, the submissions reiterated the applicant’s claims. The applicant also clarified that:

   · One of his father’s trips to [Town 2] was on [date] June 2007, and three to four months after his arrival, his father contacted a neighbour to contact his family as they did not have a telephone. The applicant’s neighbour notified the applicant’s mother but she was not able to speak to the father as the phone cut out. Although she could not verify details, she made out that the father had been caught up in the conflict due to the war. Up until that time, the family believed that the father had been killed.

   · His father sporadically contacted the applicant’s mother and he returned home on [date] August 2011. Around [date] February 2012, three people who were plain-clothed came looking for his father. The applicant did not know who those people were but they spoke Singhalese. They asked his mother about his father and she told them he was at work as a fisherman. The applicant informed his father who had come home to freshen up. For his safety, his father travelled between their home and another house in the village, approximately on a weekly basis, usually at night, but the applicant did not speak to his father.

   · The Singhalese-speaking men dressed in plain clothes returned on [date] March 2012 and beat up the applicant. During the beating, the men referred to the applicant’s father’s apparent dealings with the LTTE because of his presence in [Town 2]. Although the men did not identify themselves as CID, this was reflected in their behaviour.

   · The applicant was present during the above two occasions, and due to the beatings, he was taken to hospital for treatment. His mother also received treatment. Both the applicant and his mother were threatened to be killed if they did not cooperate. The applicant’s mother has since maintained a low profile and had no option but to flee.

   · Ongoing interest in his father has continued. On [date] April 2013, three or four men went to the family’s home, and as no one was there, they caused damage to property. They went to the neighbour’s house and physically assaulted her. She was later admitted to hospital.

   · Since then, his mother and [sisters] have been hiding at an aunt’s house, approximately six to seven kilometres away from their home. His father continues to travel between houses to avoid harm.

   · Country information (cited) supports his claims, including being a failed asylum seeker (a particular social group), young Tamil male, being subjected to racial suppression, likelihood of facing cruel and inhuman treatment while on remand, potential non‑release for not being able to pay the required fine, being detained in poor prison conditions, subjected to arbitrary detention, torture and death.

   · If unsuccessful under the Convention, the applicant meets the criteria under the complementary protection provisions.

   [3] The delegate’s decision record indicates that those were provided on 17 September 2013.

4. In support of the protection visa application, the applicant provided a translated birth certificate and Sri Lankan identity card. The birth certificate was examined and found to be genuine.

Material provided to the Tribunal

1. The applicant provided a copy of the delegate’s decision record which, among other things, indicates that although the delegate did not find the applicant credible,[4] the delegate was satisfied that the applicant is Sri Lankan of Tamil ethnicity, that he experienced harassment from Singhalese fishermen, that he worked in a [farm] from 2010 to 2012, that no member of his family had ever been an LTTE supporter, and that his father had been away from 2007 to 2011. For stated reasons, the delegate did not accept that the applicant or his father was wanted by the CID for their imputed LTTE connection/support, or that the applicant was in hiding from the CID in [Village 2].

   [4] Delegate’s decision record, at page 5, [9].

2. In submissions to the Tribunal dated 27 March 2014, the representative summarised the applicant’s claims and his fears of harm on the grounds of his Tamil ethnicity, imputed political opinion, and membership of particular social groups, namely being a returnee from a Western country, a young Tamil male, and a failed asylum seeker.

3. The applicant also provided copies of medical records referring to a person with the same family name who was admitted to hospital in October 2013 for head impact and bleeding after falling off a bike.

Statutory Declaration, dated 15 February 2023

1. In the Statutory Declaration, the applicant claimed:

   A.If recognised as a refugee, he would be eligible for a permanent visa. He has lived in Australia for more than a decade and has not returned to Sri Lanka, in order to protect himself.

   B.The area where he was born, [Village 1], is a Tamil area but surrounded by Sinhala areas. Puttalam is predominantly a Sinhala-dominated district.

   C.As a Tamil and Hindu, he is from a minority group. There has been an escalation of violence and growing Buddhist extremism tolerated by the Sri Lankan authorities.

   D.In Australia, he actively participates in Tamil nationalist activities, which are held annually, including Mullivaikkal Day,[5] Great Heroes’ Day,[6] the Col Kittu[7] Sports event, Black July remembrance,[8] and the Sri Lanka Independence Day[9] protest. He did not disclose those claims as his previous lawyer did not ask. His current representative who speaks the same language asked him about his activities in Australia and the applicant told him about those activities and his involvement with the [Organisation 1] and [Organisation 2].

   E.On [date] February 2023, he attended a protest [against] the “Sri Lankan so called independence day, Tamils who agitate for Tamil nationalism participated to voice against Sri Lankan independence”.[10] There were Singhalese people suspected of spying. He believes he has a duty as a Tamil diaspora member to express his views without fear.

   F.On 11 February 2023, his mother called and told him that the Sri Lankan police went to her place and asked about him. They told her that they have information that he has been involved in protest[s] against Sri Lankan Independence Day. They told his mother that they know what to do on his arrival in Sri Lanka.

   G.When the Gota Go protest happened in early 2022, he actively monitored the protests. Although the Gota Go seemed to unite people, recent events in Sri Lanka show that extremist ideologies and Buddhist elements are becoming powerful by “burning 13 amendment[s] to the constitution saying that Tamils should not be given any powers”.[11] Sinhala Buddhist are united in targeting Tamils. Country information shows that Tamils will continue to face targeted attacks.

   H.He fears returning to Sri Lanka. There is a strong possibility of arrest, torture and being charged. He would be perceived as anti-Sri Lankan authorities. There is no safe place for him to relocate in Sri Lanka. He will also face practical difficulties in reintegration.

   [5] Mullivaikkal Remembrance Day is a day observed by some Sri Lankan Tamil people to remember the people who died in the final stages of the civil war. It is held on 18 May which is the date on which the civil war ended in 2009 and is named after the village where the final battle took place: Martyrs Day or Great Heroes’ Day or Maaveerar Naal is observed on 27 November and is a remembrance day observed by Sri Lankan Tamils to remember the deaths of LTTE fighters who died in the civil war: A remembrance day marking the deaths of Colonel Kittu (Sathasivam Krishnakumar) and nine other LTTE cadres - Sydney Tamilar Ondru Koodal ... - Australian Tamil Congress | فيسبوك (facebook.com); Kittu (Tamil militant) - Wikipedia (accessed 18 February 2023).

   [8] Black Tigers Day or Black July is commemorated on 5 July to commemorate the LTTE’s Black Tiger commandos. See, e.g., (accessed 27 February 2023).

   [9] National Day, also known as Independence Day, is a Sri Lankan national holiday celebrated annually on 4 February to commemorate the country’s political independence from British rule in 1948. Independence Day (Sri Lanka) - Wikipedia (accessed 28 February 2023).

   [10] Statutory Declaration, dated 15 February 2023, [b].

   [11] Statutory Declaration, dated 15 February 2023, [c].

1. The applicant provided multiple photographs of his involvement in activities in Australia, a letter of support from [name] of the [Organisation 1], dated [date] February 2023, referring to the applicant’s activities in Australia, and a letter from [name], of the [Organisation 2] dated [February] 2023, confirming the applicant’s attendance at various events.

2. In submissions dated 17 February 2023, the representative summarised the applicant’s claims and case law essentially relating to the assessment of credibility. It was submitted that although the applicant might have provided inconsistent information, that should not reflect on his overall credibility. It was submitted that if forced to return to Sri Lanka, the applicant faces a real chance of being harmed based on his profile including being a failed asylum seeker, a male from the north, his Tamil ethnicity, activities in Australia, and past harm. The Sri Lankan authorities continue to believe that LTTE supporters are regrouping and influencing the international community. They also believe that although the LTTE has been defeated, Tamil nationalist organisations [stand] for the same ideologies as the LTTE. As such, Sri Lankan intelligence agents continue to monitor the activities of Tamils living abroad.

3. It was submitted that country information (cited) supports the applicant’s claims, namely that:

   a)Tamils continued to complain of ethnic profiling, surveillance and harassment by police who suspected them of LTTE links.

   b)A significant section of the military continues to support Mahinda Rajapaksa.

   c)Torture is a common practice and carried out in Sri Lanka by the Sri Lankan authorities.

   d)Persons viewed as sympathisers of the banned terrorist group the LTTE face arbitrary arrests, detention and torture.

   e)Despite the change of government, arrests and torture continue in Sri Lanka.

   f)The Sri Lankan Government considers members of the Tamil diaspora and the Tamil diaspora organisations a real threat to the Sri Lankan state.

   g)The Sri Lankan Government continues to perceive that the LTTE and its supporters among the diaspora have not abandoned their long-term goal of secession.

   h)Tamil returnees continue to face harm.

   i)Religious violations continue in Sri Lanka.

   j)There is a structural problem that allows for the arbitrary detention in Sri Lanka.

   k)The DFAT report notes that returnees face “practical challenges” upon return.

   l)Returnees involved in Tamil diaspora activism, such as being a member of a diaspora organisation or attending a protest, and individuals with “any association” with the LTTE, are “at risk of persecution on return to Sri Lanka”.

   m)Asylum seekers have been questioned by security personnel.

   n)Individuals who have been forced to return, provided the authorities have been notified of their arrival, face “vary[ing]” “degrees of harassment”.

   o)There is a “concerted surveillance effort” within the country and at diaspora events around the world; since 2019 there have also been “signs of a more sophisticated intelligence operation abroad, including infiltration attempts, spoofing and impersonation and entrapment attempts”.

   p)The continued proscription of Tamil and Muslim groups is part of ongoing efforts by one government after another to whip up Sinhala chauvinism and discrimination against the country’s oppressed minorities.

   q)Over the past two years, human rights organisations and the UN have reported an escalation of the harassment, surveillance and arbitrary detention of Tamils.

Independent country information

1. The Tribunal is required, pursuant to Ministerial Direction No.84, to take into account the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the DFAT, and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal appreciates that the Direction does not mean that the Tribunal cannot or should not consider other relevant information or that the Direction means that the Tribunal must give more weight to material prepared by DFAT. It is the Tribunal’s task to consider all relevant material independently and cumulatively. The Tribunal does not consider that the fact that DFAT is an Australian agency means that its reports and opinions expressed are undermined by any desire to maintain cordial relations with other states.

2. The Tribunal will now refer to country information relevant to the applicant’s claims.

3. DFAT’s most recent Country Information Report on Sri Lanka[12] provides the following summary:

   2.1 Sri Lanka, formerly Ceylon, achieved independence from the United Kingdom (UK) in 1948. Historically, relations between Sri Lanka’s majority Sinhalese and minority Tamil communities have been tense. Tamils received preferential treatment during British rule, including in education and civil service employment. After independence, successive Sinhalese-led governments introduced measures to promote the primacy of the Sinhalese community. These developments created a sense of marginalisation within the Tamil community and encouraged calls for an independent Tamil state, Tamil Eelam, in the predominantly Tamil-populated north and east of the country.

   2.2 A number of militant groups emerged to advance the cause of Tamil statehood. The most prominent of these, the Liberation Tigers of Tamil Eelam (LTTE, commonly known as the Tamil Tigers), formed in 1976 and launched an armed insurgency against the Sri Lankan state in 1983. Government forces re-took the north and east of the country from 2007-09, culminating in the military defeat of the LTTE in May 2009. The UN and human rights organisations documented serious violations in the final stages of the war when Mahinda Rajapaksa was President, during which up to 40,000 civilians may have been killed. In total, Sri Lanka’s 26-year civil war is estimated to have claimed 100,000 lives and displaced over 900,000 people. Civil society groups and NGOs have criticised the Rajapaksas for enabling and covering up alleged war crimes and atrocities against civilians.

   2.3 In 2015, Maithripala Sirisena, who defected from the Mahinda Rajapaksa Government to a rival political grouping, was elected President. Sirisena promised a new era of “clean” government, free of corruption, and embarked upon a path of reconciliation with the Tamil minority that appeared to make some progress. His government faced a constitutional crisis when he briefly appointed Mahinda Rajapaksa as his Prime Minister in a move that was not approved by parliament.

   2.4 On 21 April 2019, local Islamic extremist groups inspired by Daesh (also known as Islamic State), carried out coordinated terrorist attacks against Christian churches and hotels. The attacks, comprising suicide bombers, killed more than 250 people and injured another 490 – the deadliest bout of violence and the first known terrorist attacks in Sri Lanka since the end of the civil war in May 2009 (see 2019 Easter Sunday Terrorist Attacks).

   2.5 In November 2019, Gotabaya Rajapaksa was sworn in as Sri Lanka’s President, choosing his elder brother Mahinda Rajapaksa, a former two-term President, as his Prime Minister. The UN Office of the High Commissioner for Human Rights (OHCHR), in its report of January 2021, said: ‘Sri Lanka seemed to be on a new path towards advancing reconciliation, accountability and human rights. The developments since November 2019, however, have reversed that direction and, instead, threaten a return to patterns of discrimination and widespread violations of human rights experienced in past decades’ (see Political System).

   [12] Dated 23 December 2021.

4. In relation to Tamils, the DFAT report noted:

   3.4 According to the most recent census (2012), Tamils are the second largest ethnic group in Sri Lanka (15.3 per cent of the population). Tamil political parties are active, with the largest coalition of parties operating under the umbrella of the Tamil National Alliance (TNA). In the 2020 parliamentary elections, the TNA won 10 seats (of a total 225) during the landslide victory of President Rajapaksa’s Sri Lanka People's Freedom Alliance (SLPFA). There are two Tamil parties in the Government’s ruling SLPFA coalition: the Tamil Makkal Viduthalai Pulikal (TMVP) (formerly known as the Karuna group), and the Eelam People's Democratic Party (EPDP), which have a combined total of three seats in the Sri Lankan Parliament. There is one Tamil cabinet minister as of November 2021: Minister for Fisheries, Douglas Devananda of the EPDP. This represents a decline in political influence for Tamils from the previous Sirisena Government.

   3.5 Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs, though other sources suggest this is because many Tamils speak neither Sinhala nor English. Even the Tamil-dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil-speaking police officers and military personnel in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities. In April 2021, Sri Lanka Police announced plans to recruit 2,000 Tamil speakers for the north and east, given that very few of the mostly Sinhalese officers (with around 700 police officers working in the Northern Province and 1,100 in the Eastern Province) speak fluent Tamil. All police basic training is reportedly conducted in Sinhala limiting accessibility to most Tamils.

   3.6 DFAT assesses there is no official discrimination on the basis of ethnicity in public sector employment. Rather, Tamils’ under-representation is largely the result of language constraints and disrupted education because of the war.

   3.7 DFAT is aware that some Sinhalese from the south have resettled in the north and east with government assistance in the post-war period. Local sources in the north expressed concern about the construction of Buddhist statues and temples in non-Buddhist populated areas. DFAT is unable to verify claims that Sinhalese settlers in the north and east have received preferential treatment to establish businesses.

   Monitoring, harassment, arrest and detention

   3.8 Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested or detained by security forces during the war. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner (see Liberation Tigers of Tamil Eelam).

   3.9 Members of the Tamil community and NGOs report that authorities continue to monitor public gatherings and protests in the north and east, and practise targeted surveillance and questioning of individuals and groups. Security forces are most likely to monitor people associated with politically-sensitive issues, including those related to the war, such as missing persons, land release and memorialisation events (see Civil society organisations and government critics and Media).

   3.10 Communities in the north and east report that monitoring is undertaken by military intelligence and the Police Criminal Investigation Department, though in many cases officers dress in plain clothes and do not identify themselves. According to local sources, those participating in public gatherings and protests are often photographed. In the east, local informants within the community (including neighbours and business owners) reportedly undertake monitoring on behalf of the authorities. Intelligence agencies also monitor links to foreign groups, including some in the Tamil diaspora (see Liberation Tigers of Tamil Eelam).

   3.11 LTTE cemeteries in the north and east were destroyed by government forces during and after the war. Some have subsequently been restored. It is illegal to commemorate the birthday of LTTE leader Prabhakaran (26 November), or Maaveerar Naal (‘Great Heroes’ Day’ in Tamil, 27 November), although some Tamils are known to defy this ban. The public display of LTTE symbols, including the LTTE flag and images of Prabhakaran, is also banned.

   3.12 Tamils have been arrested in 2021 under the Prevention of Terrorism Act (PTA) for commemoration of the war (see Prevention of Terrorism Act). In May 2021, on the eve of commemoration of the end of the civil war in Mullaithivu district, the location at which various estimates suggest up to 40,000 civilians died in the closing phase of the war, authorities placed the district under strict COVID-19 quarantine isolation. According to local sources, Tamils who tried to commemorate the day were harassed or arrested by police. For example, 10 Tamils including two women were detained from 19 May 2021 until at least late July for holding a socially-distanced candle-lit vigil on a beach in Batticaloa, Eastern Province. On 19 May 2021, the Government of Sri Lanka, including President Rajapkasa, celebrated the same occasion as War Heroes Day. DFAT Country Information Report Sri Lanka (December 2021).

   3.13 DFAT assesses that surveillance of Tamils in the north and east continues, with particular surveillance of those associated with politically-sensitive issues. DFAT also assesses that physical violence against those being monitored is not common, and that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment.

5. In relation to political opinion, actual or imputed and the LTTE, DFAT’s report[13] states:

   [13] Report of 23 December 2021.

   3.38 Sri Lanka has held regular democratic elections since independence. Large‑scale violence and vote rigging have never been features of elections, but nor have elections always been described as entirely free and fair. DFAT assesses that political parties are able to operate freely across Sri Lanka and contest elections. There are no constitutional, legal or other restrictions preventing minorities from participating in politics. Sri Lanka has a diverse political landscape, with 70 registered political parties representing ethnic, religious and ideological interests. Political representation in parliament of each ethnicity is broadly proportional to the ethnic make-up of the overall population. The current parliament includes 27 Tamils and 19 Muslims among its 225 members. There is a single Muslim and Tamil respectively in the current cabinet, with another two Tamil state ministers.

   Liberation Tigers of Tamil Eelam (LTTE)

   3.39 At its peak in 2004, the LTTE had an armed force of approximately 18,000 combatants. The LTTE was proscribed as a terrorist organisation by a number of countries, including Australia. It was supported by foreign funding, primarily from the Tamil diaspora, and both voluntary and forced recruitment of Tamils. Funding from the Tamil diaspora was sometimes attained through means of intimidation and coercion, including threats against local family members and kidnapping for ransom. Within Tamil Eelam, the LTTE imposed its authority in a brutal fashion, reportedly murdering Tamil rivals and critics.

   3.40 Towards the end of the war, in 2009, government security forces arrested and detained a large number of LTTE members. Most were sent to government-run rehabilitation centres. A smaller number were prosecuted through Sri Lanka’s court system. Security forces also questioned or monitored many civilians for possible LTTE activity, and for civil resistance or anti-government sentiment. Although not officially mandated, in many areas the military took a visible and active role in civilian life. The previous Sirisena Government publicly committed to reducing military involvement in civilian activities, but observers have expressed concern that this has reversed and the military’s role is growing again.

   3.41 While the LTTE was comprehensively defeated, Sri Lankan authorities remain concerned over its potential re-emergence, and to separatist tendencies in general. Sources report that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members, supporters and other separatists, including ‘stop’ and ‘watch’ electronic databases. DFAT understands these databases remain active. ‘Stop’ lists include names of those individuals who have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals whom the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities.

   3.42 Former LTTE members face no legal barriers to participating in public life, including politics. In the August 2015 parliamentary elections, the TNA did not allow ex-LTTE members to run on their ticket, but ex-combatants established the Crusaders for Democracy party and ran for election. While the party did not win any seats, its participation demonstrated the relative openness of the electoral process. The party did not contest the 2020 parliamentary elections.

   3.43 The LTTE has not carried out any attacks since 2009; however, individuals linked to the LTTE have been involved in what are alleged to be thwarted attacks. DFAT assesses that the LTTE no longer exists as an organised force inside Sri Lanka, and any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans. Local sources told DFAT that the Tamil community had abandoned militancy and was committed to addressing its grievances through political means.

   3.44 The International Truth and Justice Project (ITJP), an NGO which documents torture and sexual violence by the security forces in Sri Lanka, claims that, while ex‑LTTE cadres exist, they are no longer affiliated in any way with an extant LTTE, and are subject to harassment and discrimination by the Government. The Sri Lankan Government may not accept that the LTTE is finished, arresting several Tamils in 2021 under the Prevention of Terrorism Act (PTA) for alleged LTTE-supportive behaviour (see Prevention of Terrorism Act). In July 2021, a Tamil man was deported from Qatar to Sri Lanka at the request of Counter-Terrorism Investigation Department (CTID) for allegedly promoting the LTTE. In its May 2021 decision on the refugee status of Tamil activists in the UK, the UK Upper Tribunal found that the present Government of Sri Lanka was possessed of a ‘determination to prevent any form of resurgent separatism’.

   …

   High-profile former LTTE members

   3.47 ‘High-profile’ former LTTE members are individuals who held senior positions in the LTTE’s military wing and civilian administration. The LTTE’s former leadership face the highest risk of monitoring, arrest, detention or prosecution, regardless of whether they performed a combat or civilian role during the war. Although most of the LTTE’s leadership died during the war, a number surrendered or were captured and sent to rehabilitation centres or prosecuted/detained. Some former leaders may have left Sri Lanka before, during or after the war (see Former LTTE members living outside Sri Lanka). Others considered ‘high-profile’ include individuals suspected of terrorist or serious criminal offences during the war, or of providing weapons or explosives to the LTTE. Other former leaders, such as Karuna Amman (previously a leader of the TMVP, now a member of the Sri Lankan Freedom Party (SLFP), part of the President’s ruling coalition), defected and are allied with the Government.

   3.48 DFAT assesses that the number of high-profile former LTTE members living in Sri Lanka is small and that the vast majority would already have come to the attention of the authorities. DFAT also assesses that any remaining high-profile former LTTE members who came to the attention of the authorities would likely be arrested, detained and prosecuted through Sri Lanka’s criminal courts and, once they had their prison sentences, be subjected to some form of rehabilitation. The average judicial process in Sri Lanka, including appeal, is protracted (see Judiciary). High-profile former LTTE members would likely continue to be monitored by the Sri Lankan authorities following their release from prison and completion of any rehabilitation process.

   Low-profile former LTTE members

   3.49 ‘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 now, particularly if suspected of having a combat function during the war, would likely be detained and may be sent for rehabilitation. Following their release from rehabilitation, a low profile former LTTE member might be monitored but would generally not be prosecuted.

1. In relation to the PTA, DFAT reported:[14]

   The Prevention of Terrorism Act (PTA)

   4.20 The PTA was enacted as a temporary measure in 1979 to counter separatist insurgencies. It was made permanent in 1982 and remains legally in force. The PTA is not part of regular criminal law and contains special provisions on detention and the admissibility of confessions. The PTA allows arrests for unspecified ‘unlawful activities’, permits detention for up to 18 months without charge and provides that confessions are legally admissible. Prior to the 2019 Easter Sunday terrorist attacks, the PTA was used mainly to target those suspected of involvement with the LTTE. It was used only sporadically between 2016 and April 2019 following the then-government’s commitment to repeal and replace the PTA under HRC Resolution 30/1 (2015). During the civil war, authorities detained more Tamils under the PTA than any other ethnic group. The PTA has been used for many years to detain people in prolonged and often arbitrary detention. According to the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, in his 2017 report, 70 people had been in detention without trial for over five years and 12 had been in detention without trial for over 10 years. According to the HRCSL, as of 31 January 2018, about 15 per cent of PTA suspects had been in detention for 10 to 15 years, and about 41 per cent had been in detention for five to 10 years. As at 2021, many of these detainees are still being held.

   4.21 DFAT is not able to verify the precise number of individuals currently held under the PTA. One local source estimated that 300 Muslims and 60 Tamils are being held under this legislation. A large number of Muslims were detained under the PTA following the 2019 Easter Sunday terrorist attacks. In 2021, the Sri Lankan police were still arresting Muslims in connection to the bombing. For example, in April 2021, opposition MP Rishad Bathiudeen and his brother Riyadh were arrested by CID for allegedly assisting the terrorists responsible for the 2019 Easter Sunday terrorist attacks. The brothers have claimed the arrest was political. The Government has not explained the nature of their alleged connection to the bombing. The brothers have since been released on strict conditions of bail.

   4.22 The Government has used the PTA for purposes with arguably limited connection to terrorism. In May 2020, police arrested Ahnaf Jazeem, a 26-year-old teacher and Tamil poet, based on allegations that his poetry collection promoted ‘religious extremism’. In December 2021, Jazeem was charged under the PTA and released on bail. Human rights observers have reported other cases with respect to Muslims, including: Hejaaz Hizbullah, a Muslim human rights lawyer in custody since 14 April 2020 and eventually charged with an offence under the International Covenant on Civil and Political Rights (ICCPR) Act; and, Ramzy Razeek, a retired government official, detained in April 2020 for posting on Facebook about religious extremism.

   4.23 The PTA has also recently been used against Tamils. Media reported a Tamil man was arrested by Eravur police in April 2021 for allegedly sharing a photo of LTTE leader Prabhakaran, while Jaffna Mayor, V. Mannivannan, was arrested by TID in April 2021 under accusations of attempting to resurrect the LTTE, allegedly because the choice of uniforms for a municipal environmental enforcement team resembled those of the LTTE. DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA.

   4.24 In 2015, President Sirisena committed to repeal and replace the PTA with improved counter terrorism legislation. This proposal, which was criticised by some human rights defenders as being as bad or even worse than the PTA, lapsed with that Government. In June 2021, the European Parliament adopted a resolution urging the EU Commission to consider temporary withdrawal of the Generalized System of Preferences preferential trade agreement from Sri Lanka, if it did not reform the PTA. In its response the Sri Lankan Ministry of Foreign Affairs rejected the claim that detention under the PTA had resulted in arbitrary detention but nevertheless promised to ‘revisit’ provisions of the Act to propose ‘necessary amendments’.

   4.25 In March 2021, the Government added ‘de-radicalisation regulations’ to the PTA which allow for arbitrary administrative detention of individuals for up to two years without trial. The Government also proscribed 300 Tamil and Muslim groups and individuals allegedly ‘linked to terrorism.’ On 5 August 2021, the Supreme Court, in response to Fundamental Rights Petitions filed by several activists, issued an Interim Order suspending the operation of Prevention of Terrorism (De-radicalization from holding violent extremist religious ideology) Regulations No. 01 of 2021. These petitioners argued that individuals arrested under these new regulations could be subject to potentially indefinite detention under the guise of rehabilitation, without judicial review. A court hearing of the matter remains stalled at the time of publication.

   4.26 In September 2021, during the UN Human Rights Council Session, the Sri Lankan Government announced a Cabinet sub-committee had been convened in June to ‘review’ the PTA within three months. Its report was not available at the time of publication, however, according to media reports, the committee presented its report to the President on 15 November 2021.

   [14] Report of 23 December 2021.

2. In relation to returnees, the DFAT report[15] noted that:

   [15] Report of 23 December 2021.

   TREATMENT OF RETURNEES

   Exit and Entry Procedures

   5.17 Unsuccessful asylum seekers, both those subject to removal or departing voluntarily, are returned to Sri Lanka either using commercial or charter flights. In some cases, they may be accompanied by security escorts. On arrival in Colombo, returnees will be presented to Sri Lankan Immigration where they will be interviewed by the Chief Immigration Officer. Depending on the circumstances of their departure from Sri Lanka and their personal history, they may be interviewed by other agencies including CID, Sri Lankan State Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI). These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Those who have departed illegally will be referred to CID at the airport and charged accordingly. Once charged they are taken to the courts at Negombo where they are bailed and released.

   5.18 DFAT is not aware of returnees in 2021 being detained for matters other than illegal departure (such as, for former membership of the LTTE). However, due to COVID-19, returnees have been returned to Sri Lanka in smaller numbers overall than in previous years. According to the IOM, in 2021 up to September, there had been 107 returnees, 19 of these from Australia. Local sources also report that Tamils overseas are much less likely to return voluntarily to Sri Lanka under the current Government.

   5.19 The IOM meets Australian-assisted voluntary returnees (i.e. not deportees) after immigration clearance at the airport and provides some cash and onward transportation assistance, along with legal assistance provided by the Sri Lankan Legal Aid Commission for those charged with illegal departure. Prior to departure from Australia, Australian Border Force provides removed returnees with cash to assist their return.

   5.20 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. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.

   Offences under the Immigrants and Emigrants Act

   5.21 The Immigrants and Emigrants Act (1948) (the I&E Act) governs exit from and entry to Sri Lanka. Returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the I&E Act. 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/or without a valid passport. Returnees who departed Sri Lanka legally are not required to face a court, as no offence under the I&E Act applies. Sri Lanka has a mature people smuggling industry. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine, though DFAT is unaware of a prison sentence being given for illegal departure by itself. Facilitators or organisers of people smuggling ventures, including captains and their crew, are charged with more serious offences and typically refused bail.

   5.22 Those charged are required to appear in court in the location where the matter was first heard, reportedly Negombo Courts, near the airport, which involves legal and transport costs. While the frequency of court appearances depends on the magistrate, DFAT understands that most individuals charged under the I&E Act appear in court every 3-6 months, regardless of their plea, for bail hearings. In addition to their own court hearings, those charged may be summonsed as witnesses in cases against the facilitators or organisers of people smuggling ventures. The cases of those charged with illegal departure may take years to resolve, requiring on-going court appearances (and illegal departees have no reasonable prospect of a defence). It is unclear to DFAT why such cases take so long. One source suggested that cases are taken forward in court only when all members of a people smuggling venture have been located; while another local source suggested it was simply due to the workings of the Sri Lankan justice system. For many returnees, this means they are subject to the slow processes of the Sri Lankan legal system; some returnees told DFAT that it was difficult and stressful having to return periodically to Colombo for a further hearing in a case where they were uncertain of the outcome.

   5.23 While those convicted of the offence of illegal departure may theoretically face a custodial sentence, in practice, local sources suggest, a fine is always imposed and typically this fine is LKR 50,000-200,000 (AUD350-1400). Sources suggest those who are unable to pay the fine are permitted to pay in instalments but, if still unable, may be imprisoned for 14 days.

   5.24 The severity of the fine for those charged under the I&E Act does not necessarily increase for those who have departed Sri Lanka illegally on more than one occasion. DFAT notes that, while the fines issued for passengers of people smuggling ventures are often low, the cumulative costs associated with regular court appearances over protracted lengths of time can be high. Anecdotal evidence suggests there is an acceptance within the Tamil community that illegal maritime ventures to Australia in search of asylum would be futile at this point in time.

   5.25 The minimum age of criminal responsibility in Sri Lanka is 12 years. Under Sri Lankan law, anybody over the age of 12 at the time of their alleged offence is treated as an adult. Children over the age of 12 can therefore be charged with breaking the I&E Act, so long as they were 12 or older at the time of the alleged offence. No charges are imposed against children under 12 years of age or those persons who were younger than 12 at the time of the alleged offence.

   5.26 DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure.

   Conditions for Returnees

   5.27 Between 2010-11 and 2018-19, 3,716 Sri Lankan nationals returned from the Australian community or were removed from Australian onshore immigration detention centres to their country of origin or a third country. Between 2002 and September 2021, the IOM has facilitated the return of 876 Sri Lankans from Australia. Many others returned from the US, Canada, the UK and other European countries. Most returnees are Tamil. Although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin and they have existing family links, or because of the relatively lower cost of living compared to the south.

   5.28 Refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. Most returnees have incurred significant expenses or debt to undertake their outward journey. Some voluntary returnees receive reintegration assistance in the form of transport and livelihood support upon return to Sri Lanka from the Government, UN agencies and NGOs, but this requires a returnee to meet strict eligibility guidelines and is minimal. Failed asylum seekers receive limited reintegration assistance. Many returnees have difficulty finding suitable employment and reliable housing on return. Those who have skills that are in high demand in the labour market are best placed to find well-paid employment. The IOM provides eligible returnees with livelihood assistance and makes regular visits to monitor the welfare of returnees.

   5.29 Multiple local sources said that some returnees, especially those in the north and east with suspected LTTE links, have been the subject of monitoring by the authorities, involving visits to returnees’ homes and telephone calls by the CID. DFAT understands that most returnees, including failed asylum seekers, are not actively monitored on an ongoing or long-term basis. DFAT is unable to verify whether monitoring, where it occurs, is specific to former LTTE cadres. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had no protection concerns and had not experienced harassment by the authorities, nor received monitoring visits, but DFAT cannot determine if this is the case for all such returnees.

   5.30 Bureaucratic inefficiencies present a significant challenge to reintegration for returnees. Refugee returnees, particularly those who returned without UNHCR or IOM facilitation, can experience delays in obtaining necessary identification documents and proof of citizenship. Lack of documentation inhibits access to social welfare schemes and the ability to open bank accounts, find employment or enrol in educational institutions. Limited job availability in the north and east further contributes to difficulties in securing employment and housing. DFAT assesses that reintegration issues are not due to failure to obtain asylum, but rather due to the employment and accommodation difficulties returnees may face. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they were able to reintegrate into their communities and find employment. DFAT understands that returnees may face financial difficulties reintegrating into their communities, including due to sale of their belongings to fund irregular ventures overseas, but do not experience societal discrimination for seeking asylum elsewhere.

   5.31 Some refugees and failed asylum seekers reported being pressured upon return to their communities, chiefly for being beneficiaries of financial reintegration assistance. Others experienced resentment upon return because they spent family funds on what proved to be a futile attempt at irregular migration. Overall, DFAT understands that societal discrimination is not a major concern for returnees, including failed asylum seekers. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had not experienced significant societal discrimination following their return.

   5.32 DFAT assesses that returnees face a low risk of societal discrimination upon return to their communities. DFAT further assesses that, where it occurs, surveillance of returnees can contribute to a sense of mistrust of returnees within communities.

Reports from other sources

40.     There are reports of increased mistreatment, monitoring and harassment of Tamils in the north and east after the November 2019 presidential election, which continued with the change of government in July 2022. Reports of monitoring, surveillance, intimidation and harassment of Tamils in day-to-day life by security forces in the north and east of the country increased after the election of Gotabaya Rajapaksa as president in November 2019.[16]

[16] 'Jailing Activists and Pardoning Murderers: Monitoring Ten Issues of Concern in Sri Lanka in 2021', Sri Lanka Campaign for Peace and Justice, February 2022, p.19, 20220218122156; 'Report of a Home Office fact-finding mission to Sri Lanka', UK Home Office, 20 January 2020, pp.11,49, 20200123162928; 'Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka', OHCHR, 18 February 2020, p.7.

1. In September 2022, the United Nations’ Office of the High Commissioner for Human Rights (OHCHR) said it continues to receive reports of surveillance, intimidation, and harassment of various groups in the north and east, including journalists, human rights defenders, families of the disappeared and persons involved in memorialisation initiatives.[17] There have been reports of assaults, arrests and the alleged torture of Tamil civilians.[18] In one reported case in 2021, this resulted in the death of a Tamil civilian in police custody.[19]

   [17] 'Situation of human rights in Sri Lanka: Comprehensive Report of the United Nations High Commissioner for Human Rights A/HRC/51/5', United Nations Human Rights Council, 06 September 2022, p.7.

   [18] 'Tamil man hospitalised following assault by Sri Lankan military aligned thugs over Mullivaikkal commemoration', Tamil Guardian, 22 May 2022, 20220524115440; 'Country Reports on Human Rights Practices for 2021 Sri Lanka', United States Department of State, 12 April 2022, p.3; 'Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights', United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, pp.7-8; 'Sri Lanka: End the use of and repeal the draconian PTA', Amnesty International, 17 February 2022, p.5; 'Sri Lanka military’s latest assault weapon: Barbed wire wrapped palm frond', Journalists for Democracy in Sri Lanka, 25 January 2022; 'Sri Lanka: Torture and Sexual Violence by Security Forces 2020-2021', Yasmin Sooka and Frances Harrison, International Truth and Justice Project, September 2021, pp.24-27; 'Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association', United Nations Human Rights Council, 05 May 2020, p.13; 'Repression of Dissent in Sri Lanka: 1st-31st May 2020', INFORM Human Rights Documentation Centre, 29 June 2020, p.10; 'Report of a Home Office fact-finding mission to Sri Lanka', UK Home Office, 20 January 2020, pp.11,49; 'Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka', OHCHR, 18 February 2020, p.7; 'Tamil youth hospitalised following Sri Lankan army assault in Mannar', Tamil Guardian, 25 August; 'Sri Lankan police arrest ten Tamils in Jaffna', Tamil Guardian, 11 August 2020; 'Falsely arrested and tortured disabled Tamil man submits complaint at Human Rights Commission', Tamil Guardian, 03 June 2020.

   [19] ‘Jailing Activists and Pardoning Murderers: Monitoring Ten Issues of Concern in Sri Lanka in 2021', Sri Lanka Campaign for Peace and Justice, February 2022, p.31, 20220218122156; 'Sri Lanka: Torture and Sexual Violence by Security Forces 2020-2021', Yasmin Sooka and Frances Harrison, International Truth and Justice Project, September 2021, p.33; 'Tamil youth was 'tied to a tree' and attacked before being 'beaten to death'', Tamil Guardian, 05 June 2021; 'Tamil youth beaten to death by Sri Lankan Intelligence officials', Tamil Guardian, 03 June 2021.

1. In January 2022, a Tamil fisherman and activist, who had campaigned against military encroachment in the north, was found dead; local politicians and community members in Jaffna alleged he was murdered by the Sri Lankan Navy and called for an inquiry.[20] Tamils with certain profiles, such as political activists and journalists, are more likely to attract the attention of authorities. Civil society groups report ongoing harassment and intimidation of family members of individuals who disappeared during the war.[21] Individuals and groups seeking to commemorate the end of the war and fallen LTTE combatants have experienced security forces surveillance, have been stopped from marking these occasions, and in some instances have been arrested, including under PTA.[22] While authorities lifted a ban on several Tamil organisations and individuals in August 2022, many Tamil individuals and Tamil organisations, including several diaspora organisations, remain proscribed.[23]

   [20] 'Sri Lanka: Family seeks impartial investigation into killing of Tamil fisherman', Journalists for Democracy in Sri Lanka, 14 January 2022; 'Anger in Jaffna after leading Tamil protestor killed by Sri Lankan navy', Tamil Guardian, 12 January 2022.

   [21] 'Situation of human rights in Sri Lanka: Comprehensive Report of the United Nations High Commissioner for Human Rights A/HRC/51/5', United Nations Human Rights Council, 06 September 2022, pp.7, 9; 'Human Rights in Sri Lanka in 2021', Sri Lanka Campaign for Peace and Justice, 21 December 2021, 20211222090819; 'Heeding Victims’ Voices: The Struggle of Tamil Families of the Disappeared in Sri Lanka', Dharsha Jegatheeswaran, Just Security, 03 March 2021.

   [22] 'Jailing Activists and Pardoning Murderers: Monitoring Ten Issues of Concern in Sri Lanka in 2021', Sri Lanka Campaign for Peace and Justice, February 2022, p.27; 'Sri Lanka: Torture and Sexual Violence by Security Forces 2020-2021', Yasmin Sooka and Frances Harrison, International Truth and Justice Project, September 2021, p.3223; 'Sri Lanka army soldiers attack Tamil journalist covering commemoration for civil war dead', Committee to Protect Journalists (CPJ), New York, 02 December 2021; 'Sri Lankan security forces block Sencholai massacre commemoration in Mullaitivu', Tamil Guardian, 14 August 2021; 'Sri Lankan troops break up Tamil remembrance of civil war dead', Aljazeera, 29 November 2021.

   [23] 'Amendment to the List of Designated Persons under Regulation 4(7) of the United Nations Regulations No. 1 of 201', Gazette of the Democratic Socialist Republic of Sri Lanka, The, 01 August 2022; 'Procedure for blacklisting and delisting of persons and organisations under UNSC 1373', Daily News, 18 August 2022; 'De-proscribed Tamil units funded terrorism earlier, says Defence Ministry', Morning, The, 17 August 2022; 'Ban on Tamil diaspora units lifted', Morning, The, 15 August 2022; 'Selfish and cynical – Sri Lanka lifts ban on some Tamils but many more remain banned', Tamil Guardian, 17 August 2022; 'UN High Commissioner raises concerns of harassment of Tamils and Muslims in Sri Lanka', Tamil Guardian, 21 June 2021; 'Tamil organisations speak out against Sri Lanka's ban', Tamil Guardian, 04 April 2021.

2. Tamil political parties are generally able to operate freely and contest elections, although there have been increasing reports of the monitoring and harassment of hard-line parties. The TNA remains the largest single Tamil party, but saw its share of seats drop from 16 in the last parliament to 10.[24] In general, there have been few reports of political violence against party members in recent years.[25]

   [24] 'Non-career lawmakers secure political authority', Daily Mirror (Sri Lanka), 13 August 2020.

   [25] 'Sri Lankan police attack Tamils in Jaffna as frustration mounts over recount', Tamil Guardian, 06 August 2020; 'Internal strife within ITAK takes disturbing turn', Daily Mirror (Sri Lanka), 29 August 2020.

3. Country information indicates that persons advocating for Tamil separatism may attract the attention of Sri Lankan authorities. Available sources indicate that those who hold a ‘significant role’ in Tamil separatist activities, such as through holding leadership positions in Tamil diaspora groups, those deemed to hold radical views, those formerly part of the LTTE, those in high‑profile roles, those suspected of raising funds for the LTTE during the war, and those who actively advocate for Tamil statehood would likely be of particular interest to the Sri Lankan authorities.[26]

   [26] 'KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT', Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, pp.119-120.

4. In relation to the PTA, there are reports that the PTA has been used to arrest hundreds of mostly Muslim Sri Lankans as part of investigations into the 2019 Easter Sunday bombings, although most have now been released. Prior to the Easter Sunday bombings, government statistics indicated that the majority of individuals held under the PTA were Tamils detained in many cases for years in connection with serious security offences.[27] Government data indicate that, as of 2 December 2021, 333 people were detained under the PTA, of whom 16 were convicted, 11 were under appeal and the remaining were detained as suspects.[28] The Sri Lankan Government passed a bill to amend the PTA in March 2022 which critics said was ineffective and did not adequately address human rights concerns. Critics, including the UNHCHR and civil society groups, said the amendments failed to address aspects of the PTA which have enabled human rights abuses and the targeting of minorities, critics and journalists.[29]

   [27] 'Sri Lankan Minister claims all pending pre-2016 PTA cases ‘to be concluded in next three months’, Tamil Guardian, 15 August 2021; ‘UN Special Rapporteur (Ben Emmerson) on human rights and terrorism in Sri Lanka’, Australian Department of Foreign Affairs and Trade, 14 August 2017, p.2; ‘PTA suspended pending passage of new Counter Terrorism Law’, Island, The, 8 February 2017; ‘Human rights and counter terrorism: UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism concludes visit to Sri Lanka, Preliminary findings of the visit to Sri Lanka’, Office of the United Nations High Commissioner for Human Rights, 14 July 2017; ‘Locked up without evidence: Abuses under Sri Lanka’s Prevention of Terrorism Act’, Human Rights Watch, 29 January 2018, p.5; ‘Report of the Working Group on Arbitrary Detention on its visit to Sri Lanka’, UN Human Rights Council, 23 July 2018, p.7; ‘Police arrest 2289 over Easter Sunday terror attacks – Police Spokesman SP Ruwan Gunasekara’, The Sunday Reader, 3 June 2019; ‘Over 2,280 suspected arrested since Easter Sunday terror attacks’, Daily News, 5 June 2019; ‘Brother of Suicide Bomber Arrested’, Daily News, 10 May 2019; ‘Govt urged to review ‘security reforms’ as 60 suspects taken in under PTA’ The Island, 25 April 2019; 'Official list of detainees under PTA', Ceylon Today, 30 July 2017; 'Promotion reconciliation, accountability and human rights in Sri Lanka: Report of the Office of the High Commissioner for Human Rights ', OHCHR, 27 January 2021, p.13.

   [28] 'Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights', United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.10.

   [29] Civil Society statement on proposed amendments to Prevention of Terrorism Act', Daily FT, 08 February 2022.

FINDINGS AND REASONS

1. The Tribunal recognises that assessment of credibility is an inherently difficult process and that there are unique considerations in relation to asylum seekers. The Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions concerning credibility. In the full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well‑established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably. As Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

   understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

2. The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:

   refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

3. The Tribunal has also taken into consideration psychological research on memory of trauma,[30] which indicates that inconsistencies, fragmentation of memory, lapses in memory, lack of specificity and overgeneralisations do not necessarily reflect lack of veracity in relation to recalled events. The research indicates that accurate human recollections of all kinds can be disrupted in unpredictable ways following trauma.[31] Assessment of evidence can be based on imperfect perceptions of truth. There may also be factors that consciously or otherwise influence decisions.[32] As credibility assessment is not an exact science, great care must be taken to ensure that the approach taken is reasonable, reflective, and fair.

   [30] M Conway, ‘Episodic Memories’ (2009) 47 Neuropsychologia 2305; J Herlihy, Jobson, L and Turner, S, ‘Just tell us what happened to you: autobiographical memory and seeking asylum’ (2012) 26 Applied Cognitive Psychology 661; C Brewin, The nature and significance of memory disturbance in posttraumatic stress disorder (2011) 7 Annual Review of Clinical Psychology 203.

   [31] H E Cameron, Refugee Status Determinations and the Limits of Memory (2010) International Journal of Refugee Law 469.

   [32] H Bennett and Broe, G, The neurobiology of achieving a comfortable satisfaction (2014) 26 Judicial Officer, Bulletin 8, 65–9.

4. In this case, the Tribunal has taken into consideration the fact that this applicant has been in Australia for a long time and his memory of the events may be fragmented.

5. Taking these matters into consideration, the Tribunal makes the following findings of fact.

Country of nationality

1. On the basis of the available information and for the purpose of this review, the Tribunal finds that the applicant is a national of Sri Lanka. The applicant made no claim to be a national of any other country. The Tribunal finds that the claims should be assessed against Sri Lanka for the purposes of the Convention in s 36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s 36(2)(aa).

Ethnicity and background

1. On the basis of the available information, the Tribunal is satisfied that the applicant is of Tamil ethnicity and from [Village 1], Puttalam, Sri Lanka.

Claims of harm

1. In summary, the applicant fears harm on the grounds of his Tamil ethnicity, youth, being a failed asylum seeker, being subjected to racial suppression, being imputed with LTTE connections, and activities in Australia.

2. On the evidence, the Tribunal is satisfied that the applicant had worked as a fisherman, that he experienced harassment from Singhalese fishermen, that he stopped working as a fisherman due to the harassment, that he worked in a [farm] from 2010 to 2012, and that his father had been away from 2007 to 2011.

3. The Tribunal had difficulties with a number of the claims made by the applicant. The Tribunal discussed with the applicant his claims that CID went to their home looking for his father. The applicant gave evidence that in around 2011, his father returned home, but the applicant could not recall when that occurred. He said two or three people came looking for his father, and his mother thought they were CID. He said they came again in 2012 when his father was working. He said they spoke to his mother and asked about his father. They returned a month later when his father was hiding but his father had gone into hiding at a relative’s home. He said they pushed his mother.

4. The applicant provided to the previous Tribunal copies of medical records from October 2013 referring to a person with the same surname. The applicant claimed that the records belong to his father who was assaulted. The Tribunal indicated to the applicant that the records show that the person had suffered a fall on a bike and there is no mention of any assault. He said his father was severely beaten and later disappeared. The Tribunal noted that the records show that the person returned to the hospital on various subsequent occasions. He said his mother told him that his father disappeared a day after his hospital discharge.

5. The Tribunal considers the information in the medical records to be inconsistent with the claims of the applicant that his father was assaulted and had since disappeared. The Tribunal does not accept the applicant’s explanation that his father had pretended that he had fallen from a bike to hide the real cause of his injury was an assault. The medical records refer to bleeding from the mouth and wiring of a jaw, not a wound to the back of the head. There is no information in the medical records either about the applicant’s father being in a coma of any description. A further considerable discrepancy is the applicant’s claim that his father went missing since he was discharged from hospital, but the medical records indicate the person returned for further treatment on multiple occasions after discharge.

6. The Tribunal found the applicant’s evidence in relation to his father to be vague and lacking in detail. The Tribunal also finds it implausible that if he or his father was wanted by the CID or anyone else, they were not located. The Tribunal is satisfied that although it is possible that the medical records provided relates to the applicant’s father, for the reasons explained above, the Tribunal does not accept that his father was in hospital for the claimed reasons. In essence, the Tribunal does not accept that the applicant’s father was wanted by the CID for any reason, including having lived in [Town 2] or that he was a supporter of the LTTE. It follows that the Tribunal does not accept that the applicant was wanted by the CID or anyone else for being imputed with being an LTTE supporter as a result of accusations about his father being an LTTE supporter.

7. The Tribunal asked the applicant if he or any member of the family had any connection with the LTTE. In the course of the hearing, the applicant claimed that his cousin told him that his uncle was in the LTTE. The Tribunal noted that this was a new claim which was not even mentioned in the recent submissions and Statutory Declaration. He said no one had previously asked. The Tribunal is not persuaded and is of the view that the applicant made up the claim to bolster his protection claims.

8. In consideration of the evidence as a whole and for the stated reasons, the Tribunal is not satisfied that the applicant or any member of his family, close or distant, had any connection with the LTTE, or that he or his father has suffered any of the claimed harm at the hands of the CID or any other organisation.

Is there a real chance or a real risk of the applicant suffering serious or significant harm?

1. The Tribunal discussed with the applicant country information, including DFAT’s report,[33] and indicated that, on balance, country information indicates that being a failed asylum seeker, a returnee from a Western country, Tamil, and having departed unlawfully do not necessarily mean that there is a real risk or a real chance of serious or significant harm.

   [33] DFAT Country Report Sri Lanka, 23 December 2021.

Tamil ethnicity

1. The Tribunal accepts that the applicant is a Tamil from the Puttalam district, North Western Province of Sri Lanka. The Tribunal accepts country information that there is a level of mistreatment, monitoring and harassment of Tamils in the north and east which increased after the November 2019 presidential election, and continued with the change of government in July 2022.

2. The Tribunal observes DFAT’s assessment that “surveillance of Tamils in the north and east continues, with particular surveillance of those associated with politically-sensitive issues. DFAT also assesses that physical violence against those being monitored is not common, and that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment”.[34]

   [34] Report of 23 December 2021, para 3.13.

3. Whilst the Tribunal acknowledges that Tamils continue to face a degree of discrimination and ill‑treatment in Sri Lanka, on balance and on the basis of the available information, the Tribunal is not satisfied that being Tamil, without more, means that the applicant would face harm amounting to serious or significant harm, or that he would be suspected of being associated with the LTTE merely on the basis of being a Tamil. A fair appraisal of independent country information, including those cited by the representative, essentially indicates that it is individuals who have actual or perceived strong LTTE links/sympathisers or a significant political profile who can be targeted.

Failed asylum seeker, the I&E Act, and the PTA

1. The Tribunal accepts country information that unsuccessful asylum seekers are presented to Sri Lankan Immigration and are interviewed by the Chief Immigration Officer and possibly by other agencies including the CID, the SIS, and the SLNI. Those agencies check travel documents and identity information, and those who departed illegally are referred to the CID at the airport and charged accordingly. Once charged they are taken to the courts at Negombo where they are bailed and released. DFAT[35] noted that it was not aware of returnees in 2021 being detained for matters other than illegal departure (such as for former membership of the LTTE).

   [35] Report of 23 December 2021, para 5.18.

2. In relation to the I&E Act, the Tribunal accepts that returnees who departed Sri Lanka irregularly are considered to have committed an offence under the I&E Act. The Tribunal observes that ss 34 and 35(a) of the I&E Act make it an offence to depart Sri Lanka other than via an approved port of departure and/or without a valid passport. As referred to earlier, DFAT reported that the penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine, although DFAT was unaware of a prison sentence being given for illegal departure by itself. DFAT noted that while those convicted of the offence of illegal departure may theoretically face a custodial sentence, in practice, local sources suggest a fine is always imposed and typically this fine is LKR50,000–200,000 (AUD350–1400).[36] DFAT noted that sources suggest those who are unable to pay the fine are permitted to pay in instalments but, if still unable, may be imprisoned for 14 days.[37]

   [36] Report of 23 December 2021, para 5.23.

   [37] Report of 23 December 2021, para 5.23.

3. Regarding the PTA, the Tribunal notes that although the PTA has been used against Tamils, this appears to be related to those who are perceived to have some adverse profile. In any case, DFAT reported that “DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA”.[38]

   [38] Report of 23 December 2021, para 4.23.

4. The Tribunal has carefully considered the material before it and is satisfied that the laws in relation to illegal departure are laws of general application, applied in a non-discriminatory manner and serving a legitimate purpose of dealing with people who depart their country unlawfully. Having considered the relevant country information, the Tribunal is satisfied that the laws regarding unlawful departure, which include being arrested, charged and fined (irrespective of amount) are not selectively enforced or applied in a discriminatory way for a Convention reason, as they apply to all persons who depart illegally.

1. On the evidence before it, the Tribunal is not satisfied that the treatment faced by returnees who departed illegally would give rise to persecution as contemplated by s 91R(1)(c). This includes processing at the airport, questioning, and being fined. With regards to potential loss of liberty, because it arises from the non-discriminatory operation of a law of general application, the Tribunal finds that it does not amount to persecution for the purposes of s 91R(1)(c).

Sur place claims – activities in Australia

1. In relation to his activities in Australia, the Tribunal accepts that the applicant has been participating in activities of the Tamil diaspora including Mullivaikal day, Great Heroes’ Day, Col Kittu Sports event, Black July remembrance, and the Sri Lanka Independence Day protest. There are letters of support and photographs confirming the applicant’s involvement. In the course of the hearing, the Tribunal discussed with the applicant his involvement and understanding of those events. The Tribunal has given regard to the oral submissions that the applicant’s educational background should be taken into consideration in assessing the applicant’s understanding of those events. Although the Tribunal has some concerns about the applicant’s motives in engaging in those activities, the Tribunal accepts as plausible that he has done so in good faith.

2. The UK Home Office in its 2022 report[39] found that the Sri Lankan authorities engaged in surveillance of Tamil diaspora events. The representative relied on the May 2022 report of the Immigration and Refugee Board of Canada (IRBC), which refers to the International Truth and Justice Project (ITJP) report, noting the following:

   … a “concerted surveillance effort” within the country and at diaspora events around the world; since 2019 there have also been “signs of a more sophisticated intelligence operation abroad, including infiltration attempts, spoofing and impersonation and entrapment attempts” (ITJP 8 Sept. 2021, 13). According to an article from the Tamil Guardian, a news website covering Tamil issues, “Sri Lanka's embassies are … heavily invested in carrying out surveillance of, and advocating against Tamil communities in the diaspora” (Tamil Guardian 27 Mar. 2021). In a summary of an 11 August 2020 report by Chris [Christopher] Smith, a freelance consultant who was also a senior research fellow at the University of London [from 2016 to 2019 (University of London n.d.)] (UN 5 Apr. 2019), as written in the UK Upper Tribunal decision, Smith noted that based on information provided in 2018 and 2019 by a “security source,” authorities gather information on diaspora activities by the use of infiltrators, informants, and other forms of surveillance such as taking photographs at demonstrations. All such intelligence is sent back to the Ministry of Foreign Affairs and then on to relevant intelligence sections within the [State Intelligence Service (SIS), Terrorism Investigation Division (TID), Criminal Investigation Department (CID)], and the Ministry of Defence. Information gathered by informants is handed over to the Defence Attaché in the [Sri Lanka High Commission] whose job description specifically includes, amongst other things, the monitoring and notification of anti-government activities in the United Kingdom. The Defence Attaché files a weekly report back to the Chief of National Intelligence in Sri Lanka whereupon further analysis is conducted. (UK 27 May 2021, para. 34, 50).

   …

   In an interview with the Research Directorate, a professor at an America university who focuses on South Asian politics stated that asylum seekers are viewed as having “undermined or shamed the country” and that returnees who sought asylum are viewed as “traitors” (Professor 18 Mar. 2022). In correspondence with the Research Directorate, the Executive Director of Law & Society Trust (LST), a not-for-profit “engaged in legal research, advocacy and human rights documentation” (LST n.d.), noted that there is "resentment and antipathy” toward both Tamil refugees and Tamil asylum seekers as the government believes that they have “aired negative views about Sri Lanka and the government abroad” (Executive Director 15 Mar. 2022).

   The Professor noted that there is a database with people on a watch list (Professor 18 Mar. 2022) …[40]

   [39] Country Policy and Information: Sri Lanka: Tamil Separatism (publishing.service.gov.uk).

   [40] IRBC, Sri Lanka: Situation and treatment of returnees, including failed asylum seekers (2020–March 2022) [LKA200988.E]’, pp 1-2.

3. The Tribunal accepts that it is not far-fetched to suggest that the Sri Lankan authorities could be aware of the applicant’s activities in Australia as this is supported by credible country information.

4. On the evidence, the Tribunal is satisfied that the applicant’s activities in Australia give him a profile of interest to the Sri Lankan authorities in that he would be imputed by the Sri Lankan authorities with anti-regime political views, and he would be a person of interest on the basis of those activities. The Tribunal is mindful that country information indicates that persons of adverse interest include those who hold a ‘significant role’ in Tamil separatist activities, such as through holding leadership positions in Tamil diaspora groups, those deemed to hold radical views, those formerly part of the LTTE, those in high-profile roles, those suspected of raising funds for the LTTE during the war, and those who actively advocate for Tamil statehood and would likely be of particular interest to the Sri Lankan authorities.[41]

   [41] 'KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT', Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, pp.119-120.

5. The Tribunal is satisfied that the applicant’s activities in Australia give him an adverse profile, in that his activities are of some significance, and when his whole profile is considered cumulatively, the Tribunal is satisfied that if the applicant were to be returned to Sri Lanka, he could face interrogation, surveillance, detention, be stopped from being involved in any such activities, and potentially be ill-treated to a degree amounting to a real chance or a real risk of serious or significant harm. The Tribunal is satisfied that there is not a safe place in Sri Lanka to which he could relocate to avoid that harm.

CONCLUSIONS

1. Looking at the evidence independently and cumulatively, the Tribunal is satisfied that the applicant now and in the reasonably foreseeable future has a well-founded fear of persecution.

2. Accordingly, the Tribunal is satisfied that the applicant is a refugee under s 36(2)(a) of the Act.

DECISION

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

Antoinette Younes

Deputy President