1930657 (Refugee)

1930657 (Refugee) [2023] AATA 2539 (24 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Jeremy Bayliss (MARN: 1383248)
CASE NUMBER:  1930657
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Justin Meyer
DATE OF ORAL DECISION:  20 June 2023
DATE OF WRITTEN STATEMENT:         24 July 2023
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 24 July 2023 at 3:30pm

CATCHWORDS
REFUGEE – Protection Visa –Sri Lanka – Federal Court remittal –race – Tamil – religion – Hindu – imputed political opinion – Tamil political activities in Australia – a suspected member of the LTTE – effective protection measures are not available to the applicant – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 36, 65, 91, 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 Immigration and Border Protection to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 2 July 2012 and the delegate refused to grant the visa on 6 September 2012.
Following the 6 September 2012 Department refusal, the applicant appeared before the Refugee Review Tribunal on 6 March 2013. On 26 March 2014 the Refugee Review Tribunal affirmed the delegate’s decision refusing the Protection visa. [In] September 2019, [a Judge] of the Federal Circuit Court of Australia, on appeal remitted the matter to the Administrative Appeals Tribunal, finding that the decision of the Refugee Review Tribunal was affected by jurisdictional error.
The applicant appeared before the Tribunal on 20 June 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.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
RELEVANT LAW
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
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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.
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
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’).
‘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.
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
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person to whom Australia has protection obligations under section 36 of the Migration Act and clause 866.221 of Schedule 2 to the Migration Regulations For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The delegate, in refusing the applicant’s claims for protection, held concerns regarding his credibility. The applicant’s claims appear as an attachment to the Protection visa application in statutory declaration format dated 2 July 2012. At the time of writing the statutory declaration the applicant was aged [age]. In his statutory declaration, the applicant records his ethnicity as Tamil and claims to be a practising Hindu born in Batticaloa district in Eastern Province of Sri Lanka.
His statutory declaration details his reasons for leaving Sri Lanka and fear of returning to Sri Lanka. The applicant’s statutory declaration attached to his Protection visa application is extracted below:
·I am a [age] year old male citizen of Sri Lanka.
·I was born in Batticaloa district in the Eastern province of Sri Lanka.
·I am of Tamil ethnicity and a practising Hindu.
·I am afraid to return to Sri Lanka
·I grew up in [Village 1] village in Batticaloa district. My village was in a Liberation Tigers of Tamil Eelem (LTTE) controlled area. The LTTE recruited young Tamils to join them and at least one person from each family had to join the LTTE to fight against the government.
·I completed [a grade] at the end of 2001. As the eldest one in the family I feared I would be recruited.
·In January 2002 I fled to Colombo to live with my uncle. I learnt [a]trade from my uncle and found employment as a [Occupation 1], which paid well.
·In February 2002 the Sri Lankan government and the LTTE signed a ceasefire agreement.
·In mid 2004 I went back to [Village 1] village to visit my mother and the rest of my family. I thought it would be safe to return.
·That night I went to [a] festival with my brother; [Mr A]. We stayed at the temple until late in the night.
·There was a group of LTTE members, around six or seven, at the temple. They tried to pull me and [Mr A] into a van. I struggled and managed to escape from them and disappear into the crowd, but [Mr A] could not. He was detained for two to three months. It was clear that the LTTE was still recruiting many youngsters at that time.
·When I came home I told my mother what had happened. My mother sought assistance from the Unicef in Batticaloa. She also complained to the ICRC also. Unicef wrote a letter stating that [Mr A] was underage and asking that he be released.
·[Mr A] was subsequently released by the LTTE. He then went to the police to report that he had escaped from the LTTE so that he would not be suspected of being involved with the LTTE.
·I returned to Colombo after this incident because I was afraid of the LTTE in [Village 1].
·In 2004 the Karuna group split from the LTTE. There was a lot of fighting that had erupted.
·Towards the end of 2006, before [Mr A] turned [age] years old, my brother moved to Colombo as he was afraid that he would be recruited again.
·In 2007, the Sri Lankan army advanced into [Village 1] in around February 2007, my family was than displaced and moved to [a] Refugee camp. [Mr A] and I were then told to join our family at the camp as we needed to be registered.
·I went to the camp in [2007] to register myself. After a few days I went back to Colombo to work.
·After three months in the refugee camp. the authorities moved all of the displaced people, including my family, back to their homes.
·After two to three months, my mother told me that around four or five men had come to our house in [Village 1] to look for me and [Mr A]. My mother told me tha tthey asked her: Are [the applicant] and [Mr A] your sons?', and she answered 'yes'. They then asked her ‘Where are they now?'. My mother replied 'They are not here'. The men then searched the house before leaving.
·My mother advised that [Mr A] and I should leave Sri Lanka as the men would eventually find us_ I spent a few months organising my journey to [Country 1]. I planned to go to [Country 1] first and then arrange for [Mr A] to join me.
·In February 2008 I went to [Country 1] to live. I worked in a [workplace]. [Mr A] stayed in Colombo working as an [occupation]. My mother continued to keep in contact with him whilst I made the arrangements.
·In May 2008 my mother received a letter from the Tamil People's Liberation Party (TMVP). The letter indicated that I had to come to their office.
·A group of men then came to my parents’ house to search for me. They said I had not come to the office. My parents told them that I had already left the country. They told my mother that I was to come to their office if I returned.
·In October 2008, my mother told me that she had not heard news from [Mr A]. She then contacted ICRC to report that he was missing.
·In 2010 after the civil war ended, my mother contacted me and told me that she believed it was safe to return home. I also wanted to continue to work as a [Occupation 1] in my hometown so I returned to Sri Lanka that year.
·Upon return, I heard that the Karuna group was still active and there were still problems. The problems were recurring and many people went missing. My parents became concerned about me and I was sent to live with my uncle [in a] town.
·In May 2011, I travelled to [Country 2]. After a few days I was mugged and lost my passport. I was unable to live in [Country 2] without a passport, so I made a police report. I then took the police report and registered myself with UNHCR.
·I started working in [Country 2] as I needed money to survive.
·I attended an interview with UNHCR after six weeks. I could not wait in [Country 2] for the outcome as I did not know when it would be finalised. I was working unlawfully in [Country 2] and I was scared of being caught by the authorities
·I fear I will be killed if I return to Sri Lanka. I also fear I may be abducted and disappear.
·I fear the TMVP, the Karuna group, the police, end the army.
·I will be harmed and persecuted because I had refused to obey the orders of the TMVP and come to their office. They have sent me many letters and have also come to my family's houses in person to search for me.
·I will be persecuted because I am Tamil and many have been abducted or killed,
·The authorities of Sri Lanka are unable to protect me from -the TMVP or the Karuna group. Many people have been abducted and have never returned. Others have been killed before the authorities are able to protect them, in addition, I am Tamil and the authorities will not protect me.

The applicant’s representative provided a detailed submission to the Tribunal dated 13 June 2023 canvassing the history of the matter and the applicant’s claims. Other supporting material was included with the representative’s submission, including a letter dated 12 June 2023 from [Organisation 1], photographs of the applicant’s wedding on [date] November 2022 to [a named person] (an Australian permanent resident) and medical documents evidencing his wife’s pregnancy with couple’s first child. A letter dated 14 June 2023 from [a group] was also submitted to the Tribunal under cover of an email from the representative dated 14 June 2023.
A brief history of the case is provided by the representative as detailed above at paragraph 3 of this decision. To reiterate, following the 6 September 2012 Department refusal, the applicant appeared before the Refugee Review Tribunal on 6 March 2013. On 26 March 2014 the Refugee Review Tribunal affirmed the delegate’s decision refusing the Protection visa. [In] September 2019, [a Judge] of the Federal Circuit Court of Australia, on appeal remitted the matter to the Administrative Appeals Tribunal, finding that the decision of the Refugee Review Tribunal was affected by jurisdictional error.
In their written submission to the Tribunal, the applicant’s representative maintains that ‘[i]n summary, the [a]pplicant fears persecution at the hands of the security services of the Government of Sri Lanka (‘GoSL’) and/or affiliated paramilitary organisations owing to both his background and past experiences in Sri Lanka and his Tamil political activities in Australia. The [a]pplicant fears returning to Sri Lanka on account that he will be detained indefinitely due to his Tamil political activities in Australia, his profile in Sri Lanka as a suspected member of the LTTE, and his long-term absence from the country, having fled Sri Lanka in 2012. Upon being detained he will be at risk of physical assault and torture during his interrogation by the security services which would amount to serious harm.”
According to his representative, the applicant has been in Australia for more than 11 years, frequently engaging in Tamil political activism and holds ‘strong political opinion against the Sri Lankan Government due to atrocities carried out by the Sri Lankan forces….which killed thousands of Tamils’ . His activities have including Tamil right protests organised by the [Organisation 1], supporting Tamil Genocide Memorial Day and participating in the annual Liberation Tigers of Tamil Eelam (LTTE) “Maaveerar Naal” or Great Heroes Day.
Accordingly, the applicant’s representative submits that upon his return to Sri Lanka, there is a ‘significant chance [the applicant] would be detained’ and that his ongoing involvement in ‘memorialisation activities’ would result in his ‘monitoring, harassment, questioning and detention’, together with ‘the chance, not remote, of serious harm being inflicted on’ him.
Contrary to the finding of the Department delegate, the representative has referenced various country information reports claiming that the predicament for Tamils did not improve greatly under the prior President Sirisena. Rather, he contends that the basic human rights of Tamils were not respected under the Sirisena government. The representative places reliance on various country information reports. For example, he refers to a 2018 Human Rights Watch report in relation to Sri Lanka, together with an extract from a report by International Truth and Justice Sri Lanka, published in 2016. He submits that the situation for Tamils failed to improve under the leadership of President Sirisena and that as at 2018 ‘fundamental human rights are not respected and that any person with a past history of LTTE involvement or sympathy (actual or imputed), or Tamil activism, is still at risk of being seriously harmed upon return.”

Upon the election in November 2019 of President Rajapaksa, the predicament of Tamils in Sri Lanka declined further, according to the representative. As an example, the representative refers to a 2020 Human Rights Watch report detailing threats, greater surveillance and intimidation by Sri Lankan security forces, against the ‘families of victims of forced disappearance in an attempt to silence them’. Further, the representative submits that a number of civilian organisations were placed under military control under President Rajapaksa.
The representative also relies on the current December 2021 DFAT Country Report on Sri Lanka at page 25 which refers to the UK Upper Tribunal decision finding that the current Sri Lanka government was determined ‘to prevent…resurgent separatism.’
In summary, the representative submits that the applicant’s circumstances in totality mean that he continues to have a profile making him a person of interest or concern to the Sri Lankan authorities, warranting his prolonged detention if he returns to Sri Lanka. The relevant factors, according to the representative, include that the applicant is a Tamil male from Batticaloa, Sri Lanka, his lengthy absence from Sri Lanka, his illegal entry to Australia in 2012 by boat, and his significant public involvement in Australia with Tamils and Tamil activism. In support of the applicant’s claims, the representative quotes in detail an extract from a 27 January 2021 Office of the High Commissioner for Human Rights report titled Promotion reconciliation, accountability and human rights in Sri Lanka. The relevant parts relating to the difficulties faced by Tamils in Sri Lanka are extracted for the Tribunal’s consideration in the representative’s submission. Of particular note is the paragraph that states: “Despite the Government’s stated commitment to the 2030 Agenda, Tamil and Muslim minorities are being increasingly marginalized and excluded from the national vision and Government policy, while divisive and discriminatory rhetoric from the highest State officials risks generating further polarization and violence.”
Should the applicant be required to return to Sri Lanka, the representative contends that given his profile and activism in support of Tamil separatism and the LTTE, there is a real chance he will be subjected to persecution in the form of torture, interrogation, serious harm, indefinite detention and torture. Country information reports are relied upon and referenced in detail by the representative in support of the applicant’s claims for protection.
Evidence in the hearing
The applicant reiterated the family upbringing and background account of his earlier submissions.
His brother had been granted asylum in [Country 3] but he was unaware of the exact grounds. He said his other brother went missing and was taken away. He discussed militants and the Karuna group.
He had lived in [Country 1] where he had obtained a right to work. He also had been in [Country 2], but had no right to work in that country and he eventually left to return to Sri Lanka.
The applicant said he had no right to live in any other country.
The applicant said persecution arose from when his brother went missing and was taken away by the movement. He said he became involved in the movement when he was aged [age] to [age] at the time. I asked why he was being threatened. He said he had joined the other group (the movement) who were opposed to Karuna, who had threatened making him join the group or pay the consequences. The applicant said that he sided with the LTTE. His brother had joined the LTTE.
He said initially he was not involved and Karuna started threatening him. His mother then urged him to go to [Country 1]. This was for his own safety. She organised the work permit for him. He was there for two years. He eventually returned to Sri Lanka because he thought the security situation had improved. He had been told that the situation was more peaceful by his mother. He returned in 2010 during a period of peace.
He said however that he did not feel safe. On his return he saw checkpoints and there were disappearances. He said he did not witness the disappearances but that he had heard about them.
He decided to move to [Country 2] and he departed on a genuine passport. He had a three -month permit to be in [Country 2] but he stayed nearly one year. He waited for the visa to nearly expire and then approached the UNHCR. He told them about his problems in Sri Lanka. While they assessed his case, they did not provide him with an answer. I asked why he did not remain in [Country 2] to wait for the UNHCR result. He said his mother wanted to see him. As well, there was a general amnesty to persons who had left the country without a visa.
I asked the applicant to think about his involvement with the LTTE and any other Tamil group, and what services he provided. He said that he was not involved at that time. He did not do anything all. He said that he was imputed as an LTTE member because the Karuna group believed so.
He said this was linked to what had happened with his brother. He had told the Karuna group that he was a [Occupation 1] but they did not believe him.
Eventually he received a TVMP (Tamil Makkal Viduthalai Pulikal (TMVP) previously known as the "Karuna Group") letter which was a “final notice before final action”. I asked specifically what this group was demanding in letters. The applicant said they wanted him to come back and meet with them. He said that only family knew about this. He said that if he obeyed and met with the TVMP three things are possible. He said he could be asked to join them. They were looking at the young men. Otherwise they demand money/ransom. If this was not done he would be beaten and threatened. He did not want to join either side - either the TVMP or LTTE. He is opposed to violence. He was also scared of losing his life as well.
I asked for his views on both groups and whether he was sympathetic to the Tamil cause and independence, but did not express that view publicly. He said he was scared to do so. He said no one came to the door or threatened in person, but it was done through letters.
I asked which country he had wanted to move to. He said at that time he had no specific country that he wished to go to. I asked about when he lived in [Country 2] and whether he wanted to go to Australia at that time. He said he married in 2012 through a family arrangement. The bride’s family gave false hopes to look after him. The mother expected him to be a family man. It was thought that then marriage would lead to safety but the relationship did not work out.
The applicant then departed Sri Lanka by boat. Although he had not received any other harmful threats he needed to depart. He added that he had not been physically harmed or taken away. However, he continued that they came and took him away. They had beaten him and was made to lie down. He thinks that five of six people took part in this and it occurred in early 2010. He was taken in a van to an unnamed house was locked in for three days. I asked the reason was for this. None was given by the people. He said he eventually escaped from the house. He was locked in a room and he was able to remove tiling from the wall and then escape from the building. He said never received the reason why he was abducted by Karuna but I noted from the delegate’s decision record that he was claiming to they did it to demand money from him.
This was an apparent contradiction because on one account saying they did not want or demand anything but on the other account they did. The applicant explained that this was the result of a faulty memory. As far as he was aware he said he had mental pressure and had lost sleep. He also had suppressed memories because he did not want to return to certain things, he said.
The Tribunal has given regard to the explanation, and given that the application was made to the department in mid-2012 in relation to events occurring between 2008 to 2012, the Tribunal gives the applicant the benefit of the doubt. He throughout the hearing presented as tired and making an effort to focus. This matter has proceeded through the Tribunal and the court system over the years at a regrettably slow pace. The Tribunal does not to propose to delve into policy, administrative or other reasons as to how this has occurred. That said, the passage of time and other stresses may well explain the discrepancy here and the Tribunal on balance does not give any significant weight to the discrepancy in the account.
The applicant said he was never arrested or detained by authorities.
His escape from Sri Lanka by boat was arranged via his mother through his uncle. It cost LKR1,200,000. The end point of the boat journey was Christmas Island.
Despite the civil war being over the applicant said that he had a deep-rooted fear and his mother keeps telling him that the situation is not good for Tamils. He said TVMO is still a functioning body today. People want to believe the war is over but there is still a deep split. The applicant said he was in a safe country and yet there were people in Sri Lanka who want to remember the divisions. He said he wants to forget but “they don’t want to forget”.
He did not believe he would have protection from the army and police, because he was linked with LTTE and he identified with them. He has also been an activist for Tamil rights since arriving in Australia. He attends Heroes Day events. He said that he might possibility be similarly involved if he had to return to Sri Lanka. Police and army might take notice.
He does not comment online or in newspapers. He said Sinhalese people do not understand the Tamil people and their heritage. They suppress the Tamil people. In his dark moments he thinks of them as ignorant people. They must take the first step to peace.
He added that his brother is missing. He had no chance of finding out what happened.
His wife is a Tamil and her father came to Australia as a refugee.
The Tribunal discussed the most recent DFAT country information report on Sri Lanka[1]:
Tamils
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 neitherSinhala 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.
[1] DFAT Country Information Report Sri Lanka 23 December 2021
The applicant felt he would be monitored and could not attend heroes’ day and other Tamil observances.
I noted that there was a low risk of violence in DFAT’s view in the following situations:
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.[2]
[2] DFAT Country Information Report Sri Lanka 23 December 2021
The applicant disagreed that he would not be harmed and said that maters were much worse than as were depicted in the DFAT report.
Another relevant DFAT report passage is as follows:
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’. [3]
[3] DFAT Country Information Report Sri Lanka 23 December 2021
In this context the applicant said he would be an imputed LTTE member because of his brother being in the LTEE and disappearing. He said he believed the LTTE were justified for taking the military action that they did and fought for the rights of the Tamil people.
The below DFAT country report sections were discussed:
3.54
Some members of the Tamil diaspora played a central role during the war, as a source of funding, weapons and other material support for the LTTE, and as political advocates for an independent Tamil state. Some Tamil diaspora groups continue to hold public demonstrations in their countries of residence for an independent Tamil state. High-profile leaders of pro-LTTE diaspora groups, particularly diaspora groups banned under Sri Lankan law, may come to the attention of Sri Lankan authorities because of their participation in such demonstrations. The Sri Lankan Government continues to assess that elements of the Tamil diaspora remain committed to a separate Tamil state. The UK Upper Tribunal in its May 2021 ruling on Tamils engaged in activities in the UK found that a range of political activities such as ‘attending meetings and demonstrations, holding flags or banners displaying the LTTE emblem, attendance at commemorative events, meaningful fundraising, any presence on social media, signing petitions’ may be perceived by the Government of Sri Lanka as threatening and it may trigger official harassment upon return.
The applicant said that by attending rallies he might be seen as a threat to the regime.
In the light of the below DFAT country report section the Tribunal observed that the applicant might be perceived as being a member of, or a fellow traveller of, proscribed organisations.
3.55
In March 2021, the Sri Lankan Government proscribed a number of Tamil diaspora groups including the Australian Tamil Congress and the Tamil Youth Organisation (Australia), as well as a number of individuals based in Australia, the UK, Germany, Italy, Malaysia and several other countries. The Australian Tamil Congress and the Tamil Youth Organisation are not proscribed in Australia, while the LTTE remains a proscribed organisation in Australia.
The applicant said he was active in [Organisation 1]. He said that because of this and the way he left the country (illegal means), he may be interrogated. They may find out his brother’s name and this would get him into trouble. He said he had been in Australia for a long time. He felt very free. He spoke of the quality of his life. He said that in Australia “they respect people.” The applicant added that he is a gentle person and respects Australian law and the system. They were expecting a child as a couple.
Findings and conclusions
Overall, the Tribunal found the applicant’s written and oral evidence to be broadly consistent. He gave a clear account of his family situation and reasons for leaving Sri Lanka. The applicant provided supportive consistent written evidence of his claims.
He has not claimed to have been an LTTE member, but his claims are as a brother of a disappeared imputed LTTE member and someone who could or would be perceived as a Tamil Tiger or imputed in this way. I find he has been so perceived on occasions, along with having been threatened by Karuna group personnel and also at times being perceived as linked to Karuna group.
I find further that:
·He is from Eastern Province and is in his [age range]. He is married. He is of Tamil ethnicity.
·He was taken against his will by five of six people in early 2010. He was taken in a van to an unnamed house was locked in for three days. He eventually escaped from the house. Money demands were made by Karuna figures.
·I find that he was fearful and departed the country at the earliest opportunity.
This evidence had been by and large consistent and unvarnished.
He departed illegally by boat. He has been involved in Tamil groups in Australia and attends rallies and/or events. He may have been monitored by Sri Lankan authorities in this.
If returned there is a risk that he is viewed as a Tamil activist or sympathiser at least partly because he has been so involved for a long period in Australia. He supports Tamil independence.
I accept that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members, supporters and other separatists, including ‘stop’ and ‘watch’ electronic databases. He might well be seen as a former supporter and a current believer in Tamil separatism. There is a real chance that information about him has been or would be collected. He may be of interest to Sri Lankan security services, including for suspected separatist activities.
He may well be one of the low-profile former LTTE sympathisers who comes to the attention of the Sri Lankan authorities and may be suspected of having had a combat function during the war, and thus may well be detained and may be sent for rehabilitation. This is especially because of presumption of his brother’s involvement.
The Tribunal considers the applicant to be a Tamil with actual or imputed LTTE links, per the DFAT report at [3.50] above. It finds that there is a risk that he will experience police monitoring and harassment. Even lower -profile individuals such as the applicant are monitored to guard against the LTTE’s re-emergence. Harassment for the applicant might include frequent visits by police, visits to family members, threats and seizure of mobile devices.
The applicant may well face discrimination both within his community and from government officials upon return. He may be subject to monitoring. Added to this is that the applicant has not been through rehabilitation, which could raise more suspicions about him.
He potentially would be in the most vulnerable and neglected segment of the Tamil population because of his perceived former LTTE link. He may also have an imputed but mistakenly applied Karuna link.
From this country information I conclude that as an LTTE-imputed person he may face ongoing challenges reintegrating fully into society. This might add to his vulnerability.
There is other supporting country information to help draw these conclusions.
For returnees DFAT reports that police undertake an investigative process to confirm a person’s identity which might include interviewing the returnee, contacting the police in their home area, contacting neighbours and family, and checking criminal and court records. [4]
[4] DFAT Country Information Report, Sri Lanka 23 December 2021 at [5.17]

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.[5]
[5] UK Home Office, Country Policy and Information Note, Sri Lanka: Tamil Separatism June 2017
Considering these matters cumulatively, and also taking into account the current country analysis provided in the recent Upper Tribunal (Immigration and Asylum Chamber) case of KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 00130 (IAC) in particular paragraphs [324] to [358], there is a risk that is more than remote. The applicant may well have an imputed political opinion which is anti-regime or supportive and sympathetic of LTTE, particularly given that the applicant departed Sri Lanka for the reasons he stated during a time of civil unrest in Sri Lanka.
A brief period of detention may not always amount to serious harm, but his profile may result in him being subjected to a longer period of detention and questioning than a Tamil who may merely have resided in an area formerly under the control of the LTTE. He has left Sri Lanka by illegal means, and this could be established and lead to questioning and detention.
During that detention and questioning, there is a real chance the applicant will be subjected to serious harm. The UK Home Office reported a reduction in torture complaints in 2017, while highlighting new cases of Tamil victims where police had resorted to violence and excessive force to extract confessions.
There is a real chance the CID would arrest and interrogate the applicant and question him about his past and present circumstances. The Tribunal, having considered carefully and in detail the country information and the applicant’s profile, finds that there is a real chance the CID will attempt to extract information and details or gain intelligence details about why he departed Sri Lanka, and his knowledge of other activities after the end of the civil war.
In light of this information, the Tribunal considers there to be a real chance the applicant will be subjected to mistreatment constituting serious harm during that process of detention and questioning. It follows that there is a real chance the applicant will 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 his ethnicity and his political opinion actual or imputed as the Tribunal discussed above.
It may have been considered in earlier times that the applicant’s actions since he left Sri Lanka, may not have attracted attention to him or be of adverse interest to the Sri Lankan authorities but since the applicant’s departure from Sri Lanka, there has been a worsening economic, political and security situation that would impact directly on the applicant if he was returned to Sri Lanka. Considered cumulatively, the Tribunal cannot discount as remote that they would result in the applicant being imputed with a political opinion which is anti-regime or supportive of the LTTE.
The heightened tensions and economic crisis in Sri Lanka in the last year potentially worsen the risk for the applicant. I note that one of the UNHCR’s most recent reports on Sri Lanka (2022) states:
Reports indicate that at least 70 people have been arrested under the PTA for
sharing social media posts commemorating victims of the war that included LTTE
images or Tamil nationalist iconography. On 18 May, police arrested 10 people near
Batticaloa under the PTA for organizing a memorial event; they were finally released
on bail on 8 December. A journalist, Murugupillai Kokulathasan, has been detained
for 15 months since November 2020 in relation to photos of the LTTE leader
appearing on his social media. The Government shared with OHCHR a directive
issued by the Inspector General of Police dated 23 October 2021 providing guidance
on restricting the use of the PTA and exercising greater discretion in evaluating
cases such as, possession of pictures.
In March 2021, new “de-radicalization” regulations were issued that permit arbitrary
administrative detention of individuals for up to two years without any legal
proceedings for the purposes of ‘rehabilitation’ in relation to violent extremism. The
Special Rapporteur on the promotion and protection of human rights and
fundamental freedoms while countering terrorism and other experts have warned that
the regulations may jeopardize the rights and liberties of persons who may be
detained arbitrarily, especially religious and ethnic minorities, and may curtail political
dissent with no effective due process guarantees. Civil society organisations
obtained a stay order on their implementation while the Supreme Court considers a
[6] Human Rights Council, Forty-ninth session, 28 February–1 April 2022, Agenda item 2 Annual report of the United Nations
fundamental rights petition against the regulations. [6]
As a result, the Tribunal finds that because of being removed from Australia to Sri Lanka, there is a real chance that the applicant will suffer serious harm by reason of him being an ethnic Tamil imputed to be or connected with the LTTE. This is the essential and significant reason for harm and it is regarding an identifiable particular social group. This finding is in regard to the legislatively relevant harm now or in the reasonably foreseeable future.
As well, as the perpetrators of the harm feared by the applicant are the Sri Lankan authorities or persons assisting, the Tribunal finds that state protection will not be available to the applicant and that the real chance of persecution relates to all areas of Sri Lanka. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
The Tribunal is therefore satisfied that the applicant meets the criterion set out in s. 36(2)(a) of the Act for a protection visa and the applicant is a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations as a refugee.
As well, as the perpetrators of the harm feared by the applicant are the Sri Lankan authorities, the Tribunal finds that state protection will not be available to the applicant and that the real chance of persecution relates to all areas of Sri Lanka.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Justin Meyer
Member

High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General,
Promoting reconciliation, accountability and human rights in Sri Lanka, paragraphs 45 and 46

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1930657 (Refugee) [2023] AATA 2539

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[2023] AATA 2539

24 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Remedies

Statutory Construction