1929492 (Refugee)

1929492 (Refugee) [2020] AATA 1277 (20 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1929492
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Alison Murphy
DATE:20 February 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 20 February 2020 at 4:16pm

CATCHWORDS
REFUGEE – Safe Haven Enterprise Visa – Sri Lanka – Tamil ethnicity – actual and imputed political opinion – membership of the particular social group – female heads of the household without male protection – subjected to serious harm and mistreatment by the Sri Lankan authorities – applicant’s husband was an LTTE member –credible witnesses –– state protection not available – fear of persecution from the authorities is well-founded – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 189, 499
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 October 2019 to refuse to grant the applicant a Subclass XE-780 Safe Haven Enterprise Visa (SHEV) under s.65 of the Migration Act 1958 (the Act).
The applicant arrived in Sydney, Australia by air [in] June 2019 travelling on a Sri Lankan passport in the name of [Name 1]. She was refused entry to Australia after the passport was found to be photo substituted. She was detained under s.189(1) of the Act and has remained in immigration detention since.
The applicant applied for the visa on 28 June 2019, submitting copies of her Sri Lankan passport, birth certificate, National Identity Card, driver’s licence and marriage certificate. The delegate refused to grant the visa on 14 October 2019, not being satisfied the applicant was a person owed protection by Australia.
The applicant sought a review from this Tribunal. She appeared before the Tribunal on 13 February 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The applicant was represented in relation to the review by her registered migration agent.
The issue in this case is whether the applicant meets the criteria set out in either of s.36(2)(a) or s.36(2)(aa). A summary of the relevant law is attached at Attachment A. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. As at the date of the Tribunal’s decision, the relevant report is DFAT Country Information Report Sri Lanka dated 4 November 2019.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The applicant is [an age] year old female from [City 1], Sri Lanka. She seeks to invoke Australia’s protection obligations so that she does not have to return to Sri Lanka, where she claims to fear harm on the basis of her Tamil ethnicity, her actual and imputed political opinion and her membership of the particular social groups ‘female heads of the household without male protection’ and ‘failed asylum seekers returning to Sri Lanka from a western country after leaving Sri Lanka illegally’.
Her actual and imputed political opinion is said to arise from her profile as a young Tamil female from Sri Lanka’s Northern Province who was resident in the Vanni during the military conflict between the Sri Lankan government and the Liberation Tigers of Tamil Eelam (the LTTE); whose father is perceived as supporting the LTTE; who has familial links to the LTTE through her husband (who has been granted protection in Australia) and her mother’s sisters sons (one of whom was killed during the conflict and two of whom have been granted asylum overseas); who worked for the LTTE [and] whose adverse record with the Sri Lankan authorities has caused her to be imputed with an association with the LTTE and subjected to continued monitoring and serious harm in Sri Lanka. It is also said to arise from her deportation from [Country 1] back to Sri Lanka in April 2019 and her subsequent illegal departure from Sri Lanka to Australia in June 2019, where she claimed asylum.
CONSIDERATION OF CLAIMS AND EVIDENCE
Material before the Tribunal
The Tribunal has before it the departmental files relating to the applicant and her husband. The Tribunal notes the advice of the applicant’s representative to the effect that she had not been provided with a substantive response to her many FOI requests despite the upcoming hearing and the applicant’s detention.
The applicant’s credibility
While the delegate accepted much of the applicant’s evidence of her personal history, she did not accept the applicant’s claims to have come to the adverse attention of and suffered harm from the Sri Lankan authorities. The delegate was concerned with a number of apparent inconsistencies in her account and found parts of her claims to be implausible.
The Tribunal has before it a large amount of oral and documentary evidence not available to the delegate including explanations for the apparent inconsistencies, documentary evidence relating to her husband’s and cousins’ experiences in Sri Lanka and medical evidence relating to the applicant. In view of all of the information before it, the Tribunal has formed a different view about the credibility of the applicant’s claims.
The Tribunal considers the applicant to be a credible witness about her experiences in Sri Lanka. In making this assessment it notes she has given detailed and materially consistent evidence since her arrival in Australia about her direct experiences in Sri Lanka. Her evidence is corroborated by a large amount of documentary evidence and is consistent with country information about the situation for Tamils in Sri Lanka during the conflict and its aftermath. The Tribunal considers the apparent inconsistencies identified by the delegate have now been explained by the applicant and are in any case of limited relevance to the applicant’s risk profile. The Tribunal is satisfied that the apparent inconsistencies arose because of the complexity of her claims, the density of the factual information she has provided and the period of time since some of those events took place.
The findings I have made below represent only a summary of her evidence. She has provided further oral and documentary evidence that I have not considered necessary to refer to in these reasons.
For the reasons that follow, I accept the applicant is genuinely distressed and fearful about what may happen to her if she is returned to Sri Lanka and I consider her fear is well founded, given my findings she has in the recent past been subjected to serious harm and mistreatment by the Sri Lankan authorities.
Country of nationality
While the applicant entered Australia on a passport bearing her photograph but issued in another name, her identity is not in issue. On the basis of the identity documents subsequently presented to the Department, the delegate was satisfied her real identity is [applicant name], born [date], and that she is a Sri Lankan citizen. The Tribunal finds the applicant is a citizen of Sri Lanka and has assessed her claims against that country.
The applicant’s ethnicity and place of origin
I accept the applicant is of Tamil race and originates from [City 1] in Sri Lanka’s Northern Province. The applicant’s date and place of birth is confirmed in her identity documents. She speaks Tamil and DFAT reports that Tamils make up 93.8% of the population in Northern Province[1].
The applicant’s personal background
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 4 November 2019 at 3.5
I accept the following matters about the applicant’s personal background.
She is of Christian religion. She grew up in a household comprising her parents and two brothers.
Her father was killed when she was very young during riots with the Indian Peace Keeping Force (IPKF) in [1989] and his death certificate has been presented to the Department. The delegate accepted this to be true, noting in the decision record that country information indicated the IPKF was active in [City 1] at the time.
Country information before the Tribunal indicates the IPKF was originally sent to Sri Lanka between 1987 and 1990 as a neutral body with a mission to ensure compliance with the Indo-Sri Lankan Accord, which committed India to deploying a peacekeeping force in Sri Lanka in an attempt to find a solution to the ethnic violence in the long conflict between the Tamil minority and the Sinhalese majority over issues of power sharing and autonomy. It is reported the IPKF increasingly became a partisan force fighting against Tamils[2]. While the applicant was very young when her father died, her evidence is that she does not believe her father was ever involved with the LTTE.
[2] 'India Peace keeping operations', 01 January 2005, CX142859 at >
The family was displaced from [City 1] to [Town 1] in 1995 during Sri Lanka’s long running conflict between the Sri Lankan Army and the LTTE. Her mother and brothers are now living in [Town 1], her brothers having left Sri Lanka for [Country 2] in 2006 and returned in 2010.
The applicant completed her A levels in 2005 and commenced a [degree] at [a] University in 2006. In 2005 and 2006, in between finishing school and starting at university, she [did certain work] during the ceasefire. After completing her studies, the applicant worked [in various workplaces].
In July 2012, she was appointed as a graduate [trainee], one of a large number of graduate trainees appointed at this time each year. She was assigned to [Employer 1] in [Town 1]. Initially her employment was casual and she was paid per day. In November 2012 her employment became permanent and she became an [employee], paid monthly. She remained in that employment until it was terminated at the end of January 2019.
The applicant met her husband, [while] at [school] in 2005 and they continued their relationship until they registered their marriage at a registry office [in] July 2012, approximately [number] weeks before her husband left Sri Lanka by boat for Australia. While the applicant is unable to recall the exact date of his departure from Sri Lanka, her husband’s visa application records it as [date] July 2012. His trip to Australia took longer than usual because the boat experienced troubles and was forced to land in [another country].
The applicant and her husband married at that time because her husband was concerned she might be forced to marry someone else once he was out of the country. I note the applicant’s husband arrived in Australia [in] September 2012 and declared the applicant to be his wife at all relevant times in his own visa processing, providing the Department with a copy of their marriage certificate.
I accept the applicant’s evidence that her mother strongly disapproved of the relationship for a number of reasons, including that the applicant’s husband was Hindu while she was Christian, he was younger than her and they came from different castes. Her mother was also concerned that her life would be endangered by her husband’s association with the LTTE. The applicant and her mother argued many times about the relationship and the couple married in a registry office [in] July 2012 without inviting anyone. When her mother found out, not long after the applicant’s husband’s departure from Sri Lanka, she stopped talking to the applicant and they had no contact until they reconciled in 2016.
The civil war in Sri Lanka
DFAT has previously reported that Sri Lanka’s Eastern and Northern Provinces experienced serious and long running military conflict during the period of Sri Lanka’s civil war between 1983 and 2009. During this time, the LTTE waged a military campaign against the Sri Lankan authorities with the main aim of establishing a separate Tamil state, Tamil Eelam, in the north and east of Sri Lanka. The conflict lasted until May 2009 when the Government announced its military victory over the LTTE and complete territorial control over Sri Lanka.[3] At its peak in 2004, the LTTE exercised effective control of approximately three-quarters of the territory in the north and the east of Sri Lanka, with an armed force of approximately 18,000 combatants.[4] Over the course of the conflict, hundreds of thousands of people were displaced and tens of thousands of people were killed.[5] The UN found credible allegations that both sides committed crimes against civilians.[6]
[3] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 23 May 2018 at 2.2
[4] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 23 May 2018 at 3.35
[5] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 23 May 2018 at 2.2
[6] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 23 May 2018; UK Home Office Operation Country Information and Guidance about Tamil Separatism in Sri Lanka dated 28 August 2014
The applicant claims to have suffered mistreatment and torture at the hands of the Sri Lankan authorities after the end of the conflict. She claims that she was targeted for this mistreatment because of her profile as a young Tamil female from an area formerly controlled by the LTTE who had family connections to the LTTE and who was married to an LTTE [member].
The death of the applicant’s cousin [Mr A]
The applicant claims that in November 2006, she was present at her mother’s sister’s home in [City 2] when her cousin, [Mr A], was shot and killed by the Sri Lankan Army on suspicion of being an LTTE supporter. She has produced to the Department the death certificate, evidence of an inquiry into his murder undertaken by the court, a newspaper article reporting her cousin’s death and [Mr A]’s wife letter to the Human Rights Commission. She produced to the Tribunal a copy of his post-mortem report, which she obtained from his brother in [Country 3], and a copy of his wife’s statement to the court.
The delegate accepted [Mr A] had been killed, but did not accept he had been killed by the Sri Lankan army or that the applicant was present at the time he was killed. At hearing, the applicant gave evidence that she was watching TV in [her] cousin’s home while he was asleep in the same area. Her cousin was killed after he was fired upon through a grill in the window. She confirmed she did not see any army officers at the house that night, but at that time they were known to target persons suspected of involvement with the LTTE. She attended the inquiry into his murder with his wife.
I accept the applicant’s cousin, [Mr A], was shot to death in November 2006. While the perpetrators are unknown, it is widely reported that the Sri Lankan Army acted with impunity during the conflict and extra-judicial killings of suspected LTTE members and supporters in the North and the East were common. I consider it highly likely [Mr A] was killed by the Sri Lankan Army or associated paramilitaries on suspicion of being an LTTE member or supporter. I accept the applicant was present in the household at the time of her cousin’s death, and that she attended the court inquiry with her cousin’s wife. I accept the documents she has presented relating to her cousin’s death to be genuine.
The applicant gave evidence that [Mr A] had [brothers], [one] of whom was an LTTE member. They both fled overseas after their brother’s death and now reside in [Country 3] and [Country 4] where they have been recognised as refugees. Copies of their identity cards from those countries have been provided to the Tribunal, as well as photographs of [one of the brothers] in his LTTE combat uniform and a copy of an open warrant for his arrest. The applicant’s own brothers also left Sri Lanka for [Country 2] after the death of [Mr A] in 2006. They did not return to Sri Lanka until 2010, after the end of the conflict. I accept these matters to be true.
Contact with CID following her husband’s departure from Sri Lanka
The applicant has consistently stated that she was questioned by the CID, as were her parents-in-law, in the weeks after her husband’s departure from Sri Lanka by boat in July 2012. She claims that on two occasions she was detained overnight and physically mistreated during this questioning. Prior to reporting to CID, she discussed her position with a retired [staff member] for whom she had done some administrative work [who] told her it was important she report but she should deny any ongoing contact or association with her husband.
On the first occasion she reported to CID she admitted being in a relationship with her husband, but her interrogators were unaware they had married shortly before his departure and she told them he had left the country and the relationship was over. She was detained overnight and her release was ordered the [next day]. On the second occasion her mother in law accompanied her and waited outside while she was interrogated. By this time the CID had obtained her marriage certificate and beat her for lying to them on the first occasion. She told them her marriage had caused problems for her at home and her mother had banned her from talking to him. She insisted she was no longer in contact with her husband and was released after a few hours.
The delegate accepted the applicant and her in-laws may have been questioned by the CID and army, but considered there was no evidence to support the applicant’s contention that she was abused or mistreated during that questioning or that her husband had any LTTE profile at the time of their marriage.
The delegate’s finding is surprising given that Departmental records indicate the applicant’s husband was granted a protection visa in Australia in 2016 on the basis of his claims that he was an LTTE [member] who undertook military and other training with the LTTE [in] 2008. He claimed to have worked at LTTE [workplaces] in [Town 1] and [Town 2] until he was injured when the [workplace where] he was working came under fire. He was temporarily released by the LTTE to recover at home and made his way to a government controlled area where he was placed in an internally displaced persons camp (IDP camp). He was repeatedly interrogated by the Sri Lankan Army while in the IDP camp before being released in September 2009.
The applicant’s husband states in his own visa application that after his release from the IDP camp, he faced ongoing monitoring and reporting requirements by the CID. In May 2011 he was ordered to report to the army camp in [Town 1]. When he did so he was interrogated about his LTTE involvement and his attempts to obtain a [temporary] visa to [Country 5] in early 2010. He was accused of trying to leave the country because of his LTTE connections and was told an LTTE cadre had told them under interrogation that he had provided [assistance] to him during the conflict. He was made to hang from a bar and beaten [during] that interrogation. He was released after his father contacted an MP who intervened. He continued reporting to the army camp each month and was at times punched and slapped by the interrogating officers. He left Sri Lanka illegally by boat [in] July 2012 and was later advised by his family that the army and CID had since visited the family home, telling his mother they knew he had left Sri Lanka illegally and he would be deported back and dealt with harshly.

A delegate of the Minister assessed the applicant’s husband as a refugee in August 2016 and he was granted a visa shortly afterwards. While there is no decision record, the delegate’s notes record that having reviewed his department interview, the delegate accepted he had provided a true version of past events. In particular the delegate accepted the applicant’s husband was an LTTE [member] who was harassed and physically intimidated in a government controlled IDP camp after the end of the conflict. That delegate found that the applicant’s husband’s links to the LTTE meant that if returned to Sri Lanka he faced a real chance of serious physical harm from the Sri Lankan authorities because of his previous work for the LTTE.
I consider the applicant and her husband’s accounts of their experiences to be consistent with DFAT’s advice that a large number of persons suspected to be LTTE members were arrested and detained by security forces towards the end of the conflict. Many civilians were also questioned and released and DFAT reports that at that time, any association with the LTTE was grounds for arrest. DFAT is also aware of cases where close relatives were arrested and detained because of their family connections with former LTTE members and reports such persons were likely to be subjected to monitoring. DFAT advises there are credible reports of torture carried out by Sri Lankan security forces, in some cases leading to death[7].
[7] Department of Foreign Affairs and Trade, DFAT Thematic Report: People with Links to the LTTE 2014
As noted above, the applicant’s husband was interviewed in relation to his claims and found to be owed protection by a Departmental delegate. I am satisfied the applicant’s husband had an adverse profile with the Sri Lankan authorities at the time of his marriage to the applicant because he was a person known to have been a member of the LTTE in the final years of the conflict. I accept the applicant was interrogated by the CID as to her husband’s whereabouts on two occasions in the weeks following her husband’s departure in July 2012.
November 2012 – August 2017
The applicant states she had no significant problems in Sri Lanka between November 2012 and August 2017, which she largely attributes to the protection afforded to her through her employment with [Employer 1]. In November 2012 her employment with the [Employer 1] became permanent and she moved into accommodation in the [Employer 1] complex. She states she was cautious, seldom leaving the complex alone and never contacting her husband in Australia using her own phone. Being estranged from her mother until 2016, she did not return to the family home on weekends.
During this period she made some attempts to leave Sri Lanka for Australia, but none were successful. In 2013 she engaged an agent known to one of her colleagues to try and obtain a work visa. She sent him a copy of her passport but heard nothing for a long time and was later advised by her friend it had fallen through.
At the end of 2014 her colleague told her that another opportunity had come up and arrangements were made with the agent, which resulted in a work permit and passport being issued to the applicant. I have viewed a copy of the correspondence provided to the Tribunal by the applicant about this visa and I am satisfied it relates to the [work] visa referred to in the delegate’s decision. That correspondence is from [a company] and refers to an Australian employment visa granted in March 2015. It contains the visa grant [number] and suggests she would be [employed]. I accept the applicant did not recognise the term ‘[work] visa’ when questioned by the delegate because the letter makes no reference to a [work] visa, rather it refers to the applicant being granted a work permit. The applicant never travelled on this visa because she was concerned the passport issued at the same time may not be genuine and she was unable to contact the agent to help her leave.
In 2016 the applicant and her husband learned he had been granted a five year SHEV, but he was not permitted to sponsor her to Australia. She decided to apply for a [temporary] visa but the agent told her she needed to cancel the work visa ([work] visa) first. She contacted the Australian High Commission by email but was unable to resolve the situation and did not make the application for a [temporary] visa. She then applied for a [different] visa but was refused.
The applicant and her husband decided to re-unite in India, because they believed it would be safe for her husband. They planned a small Christian ceremony to celebrate their earlier legal marriage and the applicant travelled to [India] as did husband’s parents and the applicant’s mother. The applicant’s cousins [travelled] from [Country 4] and [Country 3]. Movement records for the applicant’s husband confirm he departed Australia during this time.
The applicant claims that when she travelled back to Colombo by air with her mother-in-law, she carried her wedding album in order that it wouldn’t be damaged in her suitcase. After clearing immigration, she was stopped by CID and interviewed in a room at the airport. She stated the Sri Lankan authorities remain suspicious of women who travel to India to marry because many former LTTE members and operatives remain in India after fleeing during the conflict. The applicant claims she was questioned about the persons in the wedding photos, particularly her husband and cousins. They took copies of some of the wedding photos and allowed her to leave the airport with her mother-in-law.
I accept the applicant’s claims in this regard. DFAT reports that an estimated 95,000 Sri Lankan Tamils continue to live as refugees in Tamil Nadu, India, mostly in government administered camps. DFAT also reports that Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their risk profile, and those with links to the LTTE are unlikely to return to Sri Lanka voluntarily[8].
[8] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 4 November 2019 at 3.81-3.82
Shortly after returning home she was again directed to attend the CID in [Town 1]. During the day she was questioned about her husband and cousins who had been identified as former LTTE members by local CID. She was kept overnight and subjected to serious assaults by the officers guarding her. To protect her privacy I will not recount the details here except to note those assaults were violent and degrading. She was given medical attention by a doctor while in custody and released the next day. She later found out that [a staff member] had facilitated her release. After her release she continued to receive sexual text messages and pornographic images from the officers who had detained her.
Independent sources report that even after the decisive defeat of the LTTE, certain branches of the police continued to routinely engage in torture, including sexual abuse, to extract confessions or information from suspected LTTE members or supporters. Those sources report that the vast majority of victims of torture and sexual abuse are Tamils suspected of assisting the LTTE in the past and they have been hunted down and punished extra judicially in the post-war period[9].
[9] UK Home Office, Country Policy and Information Note Sri Lanka: Tamil Separatism June 2017 at 8.5, 11.1
At her request, the applicant was transferred from the [Employer 1] in [Town 1] to the [Employer 1] in [City 1], which was run by [another person], and moved into accommodation in the [complex] there. He was supportive of her but encouraged her to leave Sri Lanka as a permanent solution to her problems. The applicant believes he was under external pressure over her employment at the [Employer 1], despite her excellent employment record.
In June 2018, he encouraged her to apply for a [visa] to Australia and the [employer] wrote a letter of support, although the visa application was refused. In December 2018 she tried to depart Sri Lanka for Australia via [Country 2], but on arrival to Australia was advised by the agent that the travel plans hadn’t worked out and she should return to Sri Lanka and await further instructions.
[In] January 2019 she was advised that her employment at [Employer 1] had been terminated and she had been reassigned to the [City 1] [from] [February] 2019. A letter from her former employer to that effect was provided to the Department. When she reported to her new office, she was advised that they had no job for her. She complained to the Human Rights Commission and a copy of that complaint was provided to the Department.
In April 2019 she was told by her agent to travel to [Country 1] where her travel to Australia would be arranged. She paid [amount] lakhs and met the agent at Colombo airport where she was instructed as to which counter to go to. In [Country 1] a woman gave her a passport containing her photo but another person’s details. On attempting to board the flight to Australia, her passport was scanned and her ticket confiscated and she was told to wait. The woman who had provided the passport quickly escorted her out of the airport. The next day she was told all necessary bribes had been paid and she would be able to pass through the airport without difficulty. However when she attempted to depart again she was arrested and deported back to Sri Lanka.
On arrival back in Sri Lanka in April 2019, she was immediately arrested and her passport and luggage were seized. She was taken to a room at the airport and forced to kneel while she was interrogated about money her husband had transferred to her bank account. Copies of her husband’s bank accounts provided to the Tribunal indicate he transferred three amounts totalling approximately $[amount] [in] April 2019, which was intended to be passed to his mother to build a house. He also transferred approximately $[amount] [in] March 2019, which the applicant used to pay the agent who arranged her travel to [Country 1].
At hearing the applicant gave evidence that her husband had also borrowed money from friends who had made direct transfers into her account and altogether her bank statements showed amounts of almost $[amount] being deposited into her account from Australia. Her interrogators accused her of having relatives overseas who were trying to reactivate the LTTE and sending money for that purpose. Copies of her husband’s bank records showing sums transferred to the applicant from his account have been provided to the Tribunal.
The applicant was detained at the airport for two days, during which time she was beaten and assaulted and denied food and water. While the applicant has given detailed evidence about her experiences while detained, I do not intend to recount those details here. An officer who had worked with her at [Employer 1] saw her and did not speak to her directly, but contacted her brother who paid a bribe to arrange her release. Her phone was returned to her but she left without any other belongings, contacting a friend’s brother in Colombo who helped her hire a van to take her to a friend’s [house]. After the bomb blasts in Sri Lanka in April 2019, checkpoints were re-established in Northern Province. Having no identification and fearing re-arrest, the applicant moved between friends’ houses and a convent where she knew the priest, while she tried to arrange her departure by air or boat to India.
On about 11 June 2019, the agent contacted her and told her to get ready to leave, requesting a photo and arranging to meet her in [a city] where he would hand over the airline tickets and passport. At the airport she boarded the flight without any problems on a false passport bearing her photograph but someone else’s details and travelled to Australia via [Country 2]. On arrival in Australia her passport was deemed to be photo substituted and she did not clear immigration and was detained under the Act. She has remained in detention since her arrival in Australia.
Future risk of harm to the applicant
The security situation in Sri Lanka is reported to have greatly improved since the end of the conflict in May 2009. The significantly improved conditions for Tamils in particular necessarily impacts on the assessment of whether the applicant’s fear of returning to that country is well-founded as at the time of the Tribunal’s decision. In assessing the applicant’s claims to fear harm in Sri Lanka, the Tribunal needs to consider the risk of harm to the applicant in the reasonably foreseeable future and this assessment is a forward looking test.
While the security situation has greatly improved for Tamils as a whole, the applicant’s recent experiences satisfy me that she and her husband continue to be of adverse interest to the Sri Lankan authorities. DFAT reports that the Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country and maintain sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases[10]. I accept that having had her passport confiscated by the Sri Lankan authorities after her deportation to Sri Lanka in 2019, the applicant may well appear on these databases.
[10] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 4 November 2019 at 3.37
The UK Home Office reports that since 2009, the Sri Lankan government’s security policy has become increasingly sophisticated and is based on intelligence and the comprehensive surveillance of its Tamil citizens, as well as the monitoring of the Tamil diaspora. Much of this information was gathered in the period after the conflict during which LTTE members and supporters were detained in camps and interrogated. The UK Home Office also reports that the Sri Lankan authorities have a continuing interest in the surveillance of diaspora events[11].
[11] UK Home Office, Country Policy and Information Note Sri Lanka: Tamil Separatism June 2017
The UK Upper Tribunal has found that the Sri Lankan authorities know that everyone in the Northern Province had some level of involvement with the LTTE during the civil war and that in post-conflict Sri Lanka, an individual’s past history will only be relevant to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state[12]. In this case, the applicant is closely affiliated to three persons in the Sri Lankan diaspora in which the Sri Lankan government would appear to have ongoing concerns, being her husband in Australia and her cousins [overseas]. During her most recent interrogations, she was accused of receiving funds from her husband and others overseas for the purpose of funding or otherwise supporting Tamil separatist activity.
[12] UK Home Office, Country Policy and Information Note Sri Lanka: Tamil Separatism March 2017 at 2.4.9 – 2.4.13, 13.1.2 – 13.1.3
DFAT reports that Sri Lankan returnees are routinely processed by the Department of Immigration and Emigration, the State Intelligence Service, the Terrorism Investigation Department and the CID. These agencies check travel documents and identity information against immigration databases, intelligence databases and the records of outstanding criminal matters. Such checks are likely to show the applicant’s passport was confiscated in 2019 and establish that she departed on a false passport shortly afterwards.
As she is not in possession of a passport she would also require a temporary travel document before she could be deported to Sri Lanka. For returnees travelling on a temporary travel document, DFAT reports that police undertake an investigative process to confirm a person’s identity which might include interviewing the returnee, contacting their home area and town police and contacting neighbours and family and checking criminal and court records.[13] I consider that these routine investigative processes will flag the applicant as someone who was of adverse interest to the Sri Lankan authorities at the time she departed the country in 2019.
[13] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 4 November at 2019 at 5.31 – 5.33
Given her profile, I accept there to be a real chance that the applicant will again be detained and questioned when she returns to Colombo airport or later in her home area of [Town 1]. Given my findings above, I am satisfied she has in the past suffered harm amounting to both serious harm and significant harm during her past interrogations.
In assessing the risk of serious or significant harm to the applicant in the future, DFAT reports the UN Special Rapporteur on the Committee Against Torture concluded in July 2017 that ‘torture has been, and remains today, endemic and routine, for those arrested and detained on national security grounds’ and that ‘since the authorities use this legislation disproportionately against members of the Tamil community, it is this community that has borne the brunt of the State’s well-oiled torture apparatus’[14]. The UK Home Office reported in May 2016 that security personnel in Sri Lanka continued to be responsible for the detention and abuse of civilians accused of LTTE connections in 2015.[15] The United Kingdom Upper Tribunal has found that if ‘a person is detained by the Sri Lankan security services, there remains a real risk of harm requiring international protection’.[16]
[14] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 4 November 2019 at 4.21
[15] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 4 November 2019 at 3.65
[16] GJ and Others (Post-civil war Returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) at para 356(4)
In light of the country information and the applicant’s own recent experiences, I consider there to be a real chance she will be detained and questioned when she returns to Sri Lanka and that she will again be subjected to harm and mistreatment constituting serious and significant harm during that process. It follows that I find there is a real chance that the applicant would face serious harm amounting to persecution if returned to Sri Lanka, now or in the reasonably foreseeable future, for the essential and significant reasons of her actual or imputed political opinion and her Tamil ethnicity.
As the perpetrators of the harm feared by the applicant are the Sri Lankan authorities, I find that state protection will not be available to the applicant and the real chance of persecution relates to all areas of Sri Lanka.
For these reasons I accept the applicant has a well-founded fear of persecution if she returns to Sri Lanka for the combined reasons of her Tamil ethnicity and her political opinion. It follows that she is a person in respect of whom Australia has protection obligations under the Refugees Convention and she satisfies the criterion set out in s.36(2)(a).
In these circumstances, it is not necessary for me to go on and consider the applicant’s claims under the complementary protection regime, nor her other claims for protection.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Alison Murphy
Member

ATTACHMENT - CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted below.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted below.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)    that is not inconsistent with Article 7 of the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)    that is not inconsistent with Article 7 of the Covenant; or
(b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)    for the purpose of obtaining from the person or from a third person information or a confession; or
(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)    for the purpose of intimidating or coercing the person or a third person; or
(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H   Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:    For the meaning of well-founded fear of persecution, see section 5J.
…
5J    Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K   Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:    Section 5G may be relevant for determining family relationships for the purposes of this section.
5L   Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)   the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36    Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)    the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)    the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)    the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 1277

20 February 2020

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