1931786 (Refugee)

[2023] AATA 2726

1931786 (Refugee) [2023] AATA 2726 (10 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Ganasan Arujunan (MARN: 1383868)

CASE NUMBER:  1931786

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBERS:Deputy President J.L Redfern PSM (Presiding)
Jessica Henderson

DATE:10 May 2023

PLACE OF DECISION:  Sydney

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

Statement made on 10 May 2023 at 2:45pm

CATCHWORDS

REFUGEE – Protection (Class XA) (Subclass 866) visa – Sri Lanka – application for protection on the basis of refugee and complementary protection criterion – Religion – Hindu – Ethnicity – Tamil – owner of a furniture business – applicant claims he received threats from TMVP – imputed political opinion with LTTE – participated in various Tamil commemorative events in Australia – illegally departed Sri Lanka – credibility issues – whether the applicant faces a real chance of serious harm on return to Sri Lanka – membership of a particular social group as a Tamil businessmen – cumulative effect of claims – applicant found to be a refugee – decision under review remitted with directions.

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 36, 36(2)(a), 36(2B), 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 0130 (IAC)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6

Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719

WZATR v Minister for Immigration and Anor [2019] FCCA 2847

1605302 (Refugee) [2018] AATA 5723

SECONDARY MATERIALS

Department of Foreign Affairs and Trade Country Information Report on Sri Lanka, 18 December 2015
Department of Foreign Affairs and Trade Country Information Report on Sri Lanka, 4 November 2019
Department of Foreign Affairs and Trade Country Information Report on Sri Lanka, 23 December 2021
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84 – Consideration of Protection Visa applications, 24 June 2019
OHCHR, Report of the Office of the United Nations High Commissioner for Human Rights on Situation of Human Rights in Sri Lanka, 4 October 2022, A/HRC/51/5

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 1 July 2012. The delegate refused to grant the visa on 23 August 2012. The applicant applied for the review of this decision to the former Refugee Review Tribunal (RRT). The RRT affirmed the decision under review and the applicant sought judicial review. The decision was quashed and remitted back to the RRT for reconsideration. The matter was reviewed by the RRT (differently constituted) and the decision under review was again affirmed. The applicant sought judicial review of this decision and the matter was remitted for reconsideration by the Federal Circuit Court of Australia to this Tribunal following the amalgamation of several tribunals, including the RRT.[1]

   [1] WZATR v Minister for Immigration and Anor [2019] FCCA 2847 per Judge Lucev.

3. The applicant was represented in relation to the review by lawyer, Mr Ganasan Arujunan. After the matter was constituted, the Tribunal scheduled the matter to be listed for pre-hearing directions by MS Teams on 21 October 2022. Mr Arujunan represented the applicant at the directions hearing and was requested to provide updated information and submissions before the scheduled hearing, which were provided the day before and the morning of the hearing. The applicant appeared before the Tribunal on 15 November 2022 to give evidence and present arguments. He was represented by Mr Arujunan. The Tribunal obtained further research and country information relevant to the applicant’s claims. This information was provided to the applicant and a further hearing was held on 9 March 2023 to give the applicant the opportunity to give further evidence and submissions in relation to these matters

4. Each Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. Mr Arujunan provided written submissions dated 29 November and 22 December 2022 following the hearing and submissions on 8 March 2023, prior to the second hearing, in response to research and country information provided by the Tribunal. Mr Arujunan also made oral submissions at the conclusion of both hearings and provided further written submissions on 12 April 2023.

5. For the reasons that follow, we have decided to remit the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

   RELEVANT LAW

6. 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

7. 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).

8. 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.

9. 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.

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

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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

17. 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’).

18. ‘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.

19. 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

20. In accordance with Ministerial Direction No.84, made under s 499 of the Act, we have 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.

21. The most recent country information report prepared by DFAT is the report dated 23 December 2021. A copy of this report was provided to the applicant by the Tribunal by letter dated 25 October 2022. The applicant was also provided with the Report of the Office of the United Nations High Commissioner for Human Rights on the Situation of Human Rights in Sri Lanka dated 4 October 2022 and an internal research report dated 21 November 2022. The applicant relies on the DFAT reports of 18 December 2015 and draws distinctions between this report, the report of 4 November 2019 and the most recent, 2021 DFAT Report. The applicant also relies on other country information and reports, the details which are set out later in these reasons.

    BACKGROUND AND OUTLINE OF CLAIMS

22. The applicant is [an age]-year-old man, who was born in [Village 1 variant] in the Batticaloa District, in the Eastern Province of Sri Lanka, where he lived and worked for much of his life, until he departed, illegally by boat, in late March 2012. He arrived on Christmas Island, as an irregular maritime arrival (known as an ‘IMA’) [in] April 2012. He is married with a wife and child, who is now [age] years of age. The applicant left Sri Lanka alone and his wife and child still reside in Sri Lanka in the Batticaloa district.

23. The applicant is Tamil and of the Hindu faith. He has [specified siblings]. His parents are still alive and reside in the Batticaloa District. He has [specified family members] who are alive, all still living in the Batticaloa District. It is claimed that one of his uncles was killed in 1990 by the Sri Lankan army because it was perceived that he was a supporter of the Liberation Tigers of Tamil Eelam (LTTE). This was in the middle of the Sri Lankan civil war and, while we have no independent verification of this, we accept this claim. The applicant does not make any claim specifically relating to this death, although he contends that his ethnic background may expose him to targeted persecution. These claims are explained in more detail below.

24. The applicant left school when he was about [age] years of age and worked on the family farm for a few years. In 1998, he travelled to [Country 1] where he worked in a [farm] for the next seven years. He returned to Sri Lanka in 2004 and worked with one of his uncles in a [business 1] in [Village 1]. He worked with one of his uncles until December 2011, when he decided to open his own business operating a furniture shop.

    Claims

    Summary

25. The applicant’s claims are set out in his application for protection, in statements and submissions provided to the Department and the Tribunal (and its predecessors), in the information he gave to the delegate in an interview and in the oral evidence he gave to the Tribunal, and the previous Tribunal, in hearings. These claims are summarised as follows.

26. The applicant claims, and this has been a broadly consistent narrative since he first arrived in Australia, that about a month after he first opened his business, a local member of the Tamil Makkal Viduthalai Pulikal (TMVP), a man called ‘[Mr A]’ (also referred to as ‘[Mr A variant]’) came into his shop and demanded that the applicant supply him with [equipment 1]. [Mr A] refused to pay and insisted that the furniture be provided for free for use at the TMVP premises. The applicant recognised him as a local leader of the TMVP. He refused the request. Six other members of the TMVP came to the shop and made the same demands of his manager. The applicant was not there at the time, but he was subsequently advised of this. The applicant was afraid but did not want to agree and so went to [Mr A’s] superior, a man called [Mr B], and raised it with him. [Mr B] allegedly said, ‘You go, don’t worry, I will talk to him’. However, after this, the applicant claims that members of the TMVP started to drive past his shop. They did not come in, but he felt he was being harassed. He did not trust [Mr B] and decided to go into hiding, living at his mother’s house and working through the day at the [business 1] with his uncle. His wife told him that she had also seen white vans drive past their house. The applicant became very concerned for his safety. He considered leaving to work in [Country 1] but was concerned it would take too long to get a visa. A friend of his told him that he could travel to Australia by boat and assisted him in arranging this through a people smuggler. He thought this was the best thing to do and, after being in hiding for about two months, he travelled to Australia.

27. The applicant fears returning to Sri Lanka because he is concerned that [Mr A], or members of the TMVP, will seek him out and harass and extort money from him as they did previously. There is a heightened risk of this given tensions created by the current economic crisis, the volatile political situation and the fact that the Rajapaksa family has returned to power. If the applicant returns to Sri Lanka, it would be his intention to start up a business again in the Batticaloa region where his family lives to take advantage of his previous customers and connections. He has saved money while working in Australia would have sufficient resources to start up a furniture business. He is also concerned that this would be the reason why he would be targeted. While the applicant accepts that [Mr A] and members of the TMVP have not threatened his family or raised questions about whether and when he will return, the applicant is concerned that he will come to their attention and will be more vulnerable to attack or false claims because of the years he spent overseas, the manner in which he left Sri Lanka and the activities he has engaged in in support of Tamil separatism while in Australia. He is concerned that he may still come to the attention of officials at the airport for questioning even though he does not have a particular profile as a LTTE supporter and is not aware of whether he is on any stop or watchlist.

    Department interview

28. The applicant was interviewed by Department officers after his arrival in Australia on 9 May 2012. The entry interview recorded that the applicant told the Department officer he had left Sri Lanka because of problems with the Karuna group, otherwise known as TMVP. The claims that he made as recorded in this interview in relation to TMVP and [Mr A] were broadly consistent with those set out above but less detailed.

    Statement in support of protection visa application

29. The applicant made his application for a protection visa on 1 July 2012. The statement that was provided in support of the application was also dated 1 July 2012 and was prepared with the assistance of a lawyer from the Immigration Advice and Application Assistance Scheme (IAAAS). Accompanying the application for protection, the applicant provided his national identity card, birth certificates for family members including his own, photographs of his wife and child and Sri Lankan passports with the latest passport issued [in] 2010 and expiring [in] 2020. In the application, the applicant identified his family and other close relatives as his spouse, his son, his father and mother and his [specified family members]. His travel history and addresses are recorded as Sri Lanka, [Country 1] from 1998 to 2004 as a temporary resident and Sri Lanka from 2004 to the time he left [in] March 2012. Thereafter it is noted that the applicant was at sea, resided on Christmas Island and finally immigration detention at the time he made this application. The applicant is recorded as completing his [education] in Sri Lanka and his employment is recorded as working in the family business from [between specified years], working in [Country 1] until 2004 and then working in a [business 1] until 2 December 2012, where his work is described as being in a ‘self-employed partnership’. The applicant then described his employment as ‘self-employed’ from 2 December 2012 to 20 March 2012. There is clearly a typographical error in the application, and we accept that the applicant was employed at the [business 1] until 2 December 2011 and that he was self-employed from 2 December 2011 (not 2012) until 20 March 2012.

1. According to the statement accompanying his application, the applicant started his business selling timber furniture in December 2011. After about a month, he became ‘a victim of harassment’ by the TMVP. A group of six TMVP members came to his shop and demanded [equipment 1] for the office of the TMVP. One of the men who came to his shop was a man known as [Mr A] and he recognised him as a leader of the TMVP in [Village 1]. The goods were expensive, and he refused to hand them over without payment. The group came the next day and when he again refused, they told him that he needed to visit [Mr A] in his office. Instead of visiting [Mr A], the applicant went to visit [Mr B] in the TMVP offices. He held a high position in the TMVP. The applicant explained the situation to him, and he was assured by [Mr B] that [Mr A] would not return to the shop, and he would be left in peace. Despite this, the applicant decided not to return to the shop again and arranged for one of his workers to manage the shop in his absence. [Mr A] came looking for him at the shop and he was furious about his complaint to [Mr B]. He made a threat to the manager that he would kill the applicant. Over the next two-month period, the applicant went into hiding. His manager told him that he was questioned on several occasions by [Mr A] or the group. He also noticed a white van passing his house every second or third day. He became increasingly fearful and decided that the only choice he had was to leave Sri Lanka.

   Interview by the delegate

2. The applicant was interviewed by the delegate. The applicant claimed to fear harm by Sri Lankan authorities, in particular the TMVP, in the form of kidnapping, arrest and beatings on the grounds that he was a member of a particular social group, being a Tamil business owner in a paramilitary controlled area, and for his imputed political opinion as a failed Tamil asylum seeker and a perceived LTTE supporter. The applicant feared that he would be physically assaulted and possibly killed by [Mr A], or [Mr A’s] colleagues from the TMVP. He said that when he opened his shop, there were four or five shops on the same street. It was very competitive. The applicant described events relating to members of TMVP and [Mr A] coming into his shop and demanding furniture, his discussions with [Mr B] and his efforts to evade the TMVP and [Mr A] before leaving Sri Lanka. He was questioned about whether it was plausible that [Mr A] could not find him when he was working at the [business 1]. The applicant responded that the [business 1] was a very public place with many staff and [Mr A] and the TMVP would not want to publicly take action to draw attention to themselves. The applicant told the delegate that he believed [Mr A] and the TMVP had a personal vendetta against him. He also said that neither his wife nor child had been hurt.

   Decision under review

3. The delegate accepted the applicant’s nationality and identity documents. The applicant found that the ‘fundamentals of the applicant’s claims, namely the harassment he claims from TMVP, to be supported by the available country information’. However, the delegate also found the details the applicant gave in relation to specific events, which prompted him to leave Sri Lanka in March 2012, ‘to be lacking credibility’. The delegate was not satisfied that the applicant was a reliable witness and was not satisfied that he was ‘recalling evidence from entirely within his personal experience’.

4. As stated in the decision-record, the delegate did not accept the narrative that the applicant had observed a white van passing his residence every second day or when he had given evidence that he was staying at the [business 1] at his mother’s house to avoid [Mr A] and the TMVP. The delegate observed that while the applicant said that [Mr A] had not threatened him directly but had passed on threats through his wife and the shop manager, [Mr A] had never harmed his wife and child. This suggested that the applicant’s claimed fears were not well-founded. The delegate noted in the reasons that she found it difficult to accept that [Mr A] would go to such lengths to find the applicant as a result of a dispute about [equipment 1]. The applicant had replied during the interview that this was a bigger issue, and it was about ‘respect’. The delegate considered it would be very risky to make threats against a successful local businessman. The delegate did not find the claims to be credible because she did not consider it credible that the TMVP would lack the resources to find the applicant within the village if they had wanted to and the applicant’s evidence was that he had successfully been in hiding from [Mr A] for two months even though he was living and working in the open. The delegate did not find it credible that the applicant would be able to continue to work at the [business 1] and visit his family without detection and monitoring by the TMVP. The delegate also found that, to the extent that there were any threats made to the applicant, those threats had not been carried out in the two months before the applicant departed Sri Lanka and there was also no evidence that his wife and child had been harmed. This suggested that any threats were ‘empty’.

5. The delegate did not accept that Tamil business owners in paramilitary controlled areas was a member of a particular social group and found that any harm feared for this reason was not convention related. However, the delegate accepted that fear of harm from Sri Lankan authorities based on the applicant’s race or political opinion would be founded on a convention reason and the fear claimed would be sufficiently serious and systematic and discriminatory conduct to be ‘persecution’ within the meaning of the Act. The issue of concern for the delegate was whether the fear was well founded. Having regard to the country information referred to in the decision record and the delegate’s findings about the applicant’s credibility, the delegate was not satisfied that the applicant had a profile that would bring him to the attention of Sri Lankan authorities as a Tamil or as a failed asylum seeker.

6. As such, the delegate was not satisfied that the applicant’s fear of harm was well-founded and was therefore not satisfied that protection obligations were owed to the applicant under the Refugee Convention. In relation to complementary protection, the delegate stated that she did not find it plausible that the TMVP would not be able to find the applicant in his village for two months and therefore did not accept that there were substantial grounds for believing that there was a real risk the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia and being returned to Sri Lanka.

   Previous reviews

7. The applicant sought review of this decision to the RRT and the decision was affirmed, with the presiding member accepting the applicant’s claims about the existence and involvement of a person called ‘[Mr A]’ or ‘[Mr A variant]’ in the TMVP but rejecting his claims to have been exposed to further threats and dangers from [Mr A] or other TMVP members as a result of refusing a demand for items of furniture from his shop. The presiding member did not find it plausible that [Mr A] would keep pursuing him in the village, go to the trouble of organising white vans to drive past his shop and house and summons his wife to the TMVP offices. The presiding member also found it was implausible that, having been frustrated by his desire to find and kill the applicant, [Mr A] did not make any threats to his family or relatives or take any action to damage his property or attempt to seize the items of furniture that was said to have been the origin of the dispute. The presiding member also took into account that there was no action taken against the applicant’s family and friends or in relation to his property in the 12 months that had passed since the applicant had left Sri Lanka.

8. In summary, the presiding member did not accept the applicant’s claims that he had attracted the hatred and feelings of revenge of [Mr A] or anyone else in the TMVP. Nor was the presiding member satisfied that the applicant would be a person who was identified by authorities as having LTTE sympathies. The applicant’s claims were rejected on both refugee and complementary protection grounds.

9. The applicant sought review of this decision and the matter was remitted by consent for reconsideration to the RRT because the Minister conceded (and the Court accepted) that there was an error of law identified in the presiding member conflating the meaning of ‘serious’ and ‘significant’ harm, which may have impacted the consideration of his claims in relation to complementary protection.

10. The matter was listed in the RRT, differently constituted in 2013 and the presiding member affirmed the decision under review on 8 January 2014. The applicant sought review of this decision and by judgement delivered [in] October 2019 the decision was set aside by the court on the basis that the review and subsequent decision was infected by jurisdictional error, being a reasonable apprehension of bias. The matter was remitted to this Tribunal to rehear the application for review according to law.

    Procedural issues

    As already noted, the Tribunal arranged the Directions Hearing on 21 October 2022 to discuss the preparation of the case and the proposed hearing date. This was followed by a letter dated 25 October 2022 requesting that certain information be provided to the Tribunal by 7 November 2022. This was not a formal request for information under s 424(2) but rather a general request by the Tribunal for documents and information which would be of assistance. The information requested included an updated statement of evidence from the applicant providing detailed information in relation to all of his claims or any updated or additional claims he relied on, any witnesses that the applicant wished to rely on at the hearing and an outline of their evidence and any country information relevant to the applicant’s claims. The transcripts of the previous hearings were also provided to the applicant as an attachment to this letter, seeking advice as to whether the applicant wanted the Tribunal not to have regard to these transcripts. A submission was made, and accepted by the Tribunal, that we should not have regard to the proceedings before the second Tribunal given the finding made by the court that there was a reasonable apprehension of bias in the conduct of the review.

    EVIDENCE

11. Apart from the basic identity documents and photographs provided at the time of his application, the applicant provided no documentary evidence or statements from others, such as friends and family, in support of his claims. There were no further documents or statements provided by witnesses in support of his claims prior to the hearing, although the applicant provided an updated statutory declaration sworn on 13 November 2022.

    Applicant’s 13 November 2022 Statutory Declaration

12. The applicant addressed several issues in this additional statement.

13. He stated that the TMVP usually harm people by ‘dobbing’ in people to the Central Intelligence Department (CID) or the Terrorism Investigation Department (TID) or similar agencies that the person is a suspected LTTE member or criminal. The CID or TID then have the person arrested, interrogated and harmed during the interrogation. The applicant stated that the focus of the TMVP and [Mr A] was not to specifically harm him publicly but to use techniques of intimidation and threats first and, if this didn’t work, then ‘dob’ him into the CID or TID. The applicant states that this is the reason why he was able to stay unharmed by the TMVP and [Mr A] for the two months after he had refused to agree to their demands. The applicant stated that he stayed at his mother’s place at night to avoid being intimidated personally and this was a temporary measure.

14. Under the heading of ‘extortion’, the applicant stated that the TMVP frequently asked for materials and money for their cause from shop owners and businesspeople in the region. They called these demands ‘donations’. The TMVP had made these demands for donations to his uncle as the [business 1] owner and his uncle would meet these demands from his own pocket. According to the applicant, his uncle did not ask him whether he could pay these demands using the business money. He stated that he would not have agreed because he did not condone such extortion requests by the TMVP. The applicant stated that he refused the demand for the [equipment 1] because it was expensive, and he did not want to give in to extortion demands. The applicant also clarified his first statement, noting that it was his wife rather than him who saw the white van passing his house.

15. Under the heading of ‘sur place claim’, the applicant stated that after coming to Perth in 2013, he participated in Tamil events such as Remembrance Day, Genocide Day and Heroes Day. He participated to pay his respects for those who died during the Tamil people's struggles. He also believed in the struggle for an independent state for Tamils. The applicant further stated that he could not celebrate these events if he returned to Sri Lanka because he would be arrested, detained and tortured on the grounds that this was resurrecting Tamil separatism and the LTTE. The applicant explained that he had not raised this in the hearings before the previous Tribunal members or in his application and his previous statement because he was new to Australia at the time and did not have much knowledge about these gatherings in Sydney. The applicant stated that he feared significant harm from the Sri Lanka government because of his attendance at these events in Perth. He also stated that he would have to conceal his feelings for an independent Tamil state because if he did not do so he would face harm from the Sri Lankan government. He also stated that if he returned to Sri Lanka and continued with the furniture and [business 1] businesses, he would continue to fear extortion from the TMVP. He feared the TMVP because of his previous refusal to agree to the demands. He also feared harm from [Mr A] because of the ‘insult’ to him and the fact that he ignored his demands for the furniture set.

    First Hearing

16. The applicant’s evidence at the first hearing was consistent with the information he gave to the delegates at his interview and his evidence given to the first Tribunal.

17. The applicant said that he feared returning to Sri Lanka because he feared being harmed by the TMVP and [Mr A]. He also said that he feared being persecuted as a businessman operating in the Batticaloa region. He said that after he left Sri Lanka, his uncle closed down the [business 1] business. His wife operated the furniture business, eventually closing this down after a short period; the applicant did not know what had become of residual stock, including the controversial furniture that he had refused to ‘donate’. The applicant said that if he returned to Sri Lanka, he would recommence the business because he knew [the related] work and this is where he believed he could make a living. He said that his parents and [specified family members] still lived in the Batticaloa region. His uncles on his father’s side also still lived in the region.

18. The applicant described his early life. He said he travelled to [Country 1] for work and when he returned, he worked in a [farm]. After this he started working with his uncle at the [business 1] and then decided to start up his own business because customers often asked him if he could make [furniture]. He said that there was only one furniture shop in the village. He said there were furniture shops in Batticaloa, but these were about 30 minutes away.

19. The applicant gave a detailed account of the demands made by the TMVP and [Mr A]. He also described the conversation that he had with [Mr B] and why he then subsequently decided to go into hiding. His account was consistent with the evidence that he had previously given and was delivered without hesitation in a forthright manner.

20. The applicant was asked whether he had links to the LTTE; he said that he did not. However, he still believes that the TMVP would target him because they target businessmen, and they would remember the complaint originally made about [Mr A] to [Mr B]. He believes that returnees and failed asylum seekers are often targeted for extortion. The applicant was asked why he would be targeted after so many years and was also asked whether his wife, parents, [siblings] or uncles had been threatened or targeted. The applicant said that they had not been threatened but he still believes that he would be targeted because they would be focused on him, not on his family members. The applicant was further questioned about why he would be targeted after 11 years since the original incident. The applicant gave evidence that the TMVP still had a presence in Batticaloa and that he knew that [Mr A] was still living there ‘for a fact’. He said that he knew this because his wife and his uncle told him that they had seen [Mr A] in the area. When asked about whether they are aware that [Mr A] was still looking for him, he said that neither his wife or uncle told him this but he nonetheless feared returning because of this issue.

21. The applicant said he was also concerned about the fact that he had participated in Tamil protests and commemorations while he was in Australia and repeated his claims that he supported an independent state for Tamils. He said that after the war ended in 2009, he supported a separate Tamil state, but he could not be involved in protests because of the attitude of the government at the time. He said that he was only able to show his support for this when he came to Australia. The applicant said that he believed the government knew about his activities in Australia and his entries on [social media]. He said that the government carries out surveillance on activities of people living overseas. When asked whether he was concerned about being questioned at the airport. The applicant said he was not only concerned about this but was concerned about what would happen to him when he returned to the village. He believed he would be tortured. When asked about how many people attended the commemorative activities in protests in Australia, he said that there were hundreds of Sri Lankans who attended but he believed he would be identified when he queued to visit the various visitor stations in commemoration of various Tamil Remembrance Days. He says the government has videoed these events and that he knows this through the news and [social media]. The applicant was asked whether he would protest and advocate for an independent state in Sri Lanka when he had not done so previously, and the applicant said that he may find it difficult to suppress his views. He also said that the government may perceive him to be a separatist because of its well-known monitoring activities of Tamil diaspora.

22. The applicant said he was not just concerned about being questioned at the airport but was concerned about returning to his home village and whether he would be targeted by the CID for questioning. He believes that he is more vulnerable for a range of reasons, including the previous targeting by [Mr A] and that TMVP, the fact that he complained and left Sri Lanka illegally, the fact that he made an application for protection that has failed, has lived in Australia for 11 years and that he has been engaged in Tamil diaspora activities overseas. Finally, the applicant is also concerned that he has financial resources and will be operating a business in the Batticaloa region, because this is all he knows and where his family lives, and he may be perceived as a Tamil who could be targeted for extortion.

    Internal report

23. After the first hearing, the Tribunal sought and received an internal report on the country information in relation to a TMVP figure named [Mr A] and on TMVP in the Batticaloa region. The report addressed the three articles which the applicant had referred the Tribunal to and updated the information available about [Mr A] and the TMVP subsequent to the publication of those articles.

1. The gravamen of the report with respect to [Mr A] was that there was significant intra-faction politics subsequent to 2007, that opinion is divided as to what influence and operations Karuna and his followers (including [Mr A]) had in the Batticaloa District after 2008, and that there was ongoing extortion by the Karuna faction with the complicity of the Sri Lankan police as late as August 2011. [Mr A’s] name appears to drop out of the country information in 2008, however, and there is no country information supporting his continued involvement in extortion in Batticaloa as of 2011 or to the present day.

2. The report with respect to ongoing TMVP operations in the Batticaloa area relevantly included that “[t]he only report that [the authors] could locate of possible threatening behaviour from the TMVP in recent years come from reporting about the November 2020 arrest by the CID of TMVP General Secretary and former Eastern Provincial Councillor, Poopalapillai Prasanthan nothing could be located of any more recent date that would indicate allegations of TMVP behaviour such as were formerly a common place during and in the immediate aftermath of the war.” A more detailed account of the content of this report is set out below.

3. The report was sent to the applicant for his consideration, and by the same correspondence the applicant was invited to a second hearing on 9 March 2023.

   Second Hearing

4. At the second hearing the Tribunal invited the applicant’s comment on the proposition that not much had been heard of [Mr A] since 2008, which suggests that he has not been very active since that time. The applicant confirmed his certainty that it was [Mr A] who had attended his business and demanded the furniture in 2012. He said that he recognised [Mr A] because [Mr A] had been a public figure who regularly appeared on the television, that he had subsequently met [Mr A] in person in 2008 or 2009, and that at the time of the visit to his furniture store, [Mr A] had in fact been wearing an official name tag on his uniform, confirming his identity beyond doubt. He said that [Mr A] was ‘very famous’, suggesting that there was no room for doubt about his identity.

5. The applicant said that [Mr A] was still functioning to the present date, but that people were too frightened to divulge information about him. The applicant was asked how he knew about matters that people were afraid to report. The applicant replied that it is common knowledge that the extortion behaviour is continuing, even though it is no longer formally reported. The applicant was also asked why he thought that the media had stopped reporting about [Mr A], when reports had been made in the past. The applicant referred to the ‘killing’ of journalists and suggested that they had become afraid to report things that happened.

6. The applicant was unable to provide specific examples of incidents in his district involving [Mr A] or the TMVP but said that his wife, father, uncles, cousins and brothers all know what is happening and they tell the applicant that they have seen [Mr A]. He said that they had not received any threats against them, but they confirmed that the TMVP and [Mr A] were functioning in the same way that they had previously.

7. The applicant gave evidence about a person that he had heard of, although he admitted that he did not know this person personally, who had moved to [Country 2] after offending the TMVP.  The applicant said that when this person returned after 20 years, he was shot by the TMVP, and that this was an example of what might happen to him if he returned. He also referred to specific incidents that he knew of when [Mr A] had killed other people for revenge, but accepted that these occurred before he left the country (ie prior to 2011).

8. The applicant was asked if he had any more recent examples of revenge killings by [Mr A] and the applicant said that his family members tell him about ‘problems of this nature’ are happening ‘every day’. He said that he didn’t know why they were not reported.

9. The applicant was asked whether it was possible for him to relocate to another part of the country and the applicant indicated that there were other problems arising from relocation, including that he would have to report why he was moving, and it would come to Karuna and [Mr A’s] attention.

10. The applicant said that he didn’t know what would happen to him on his arrival in Colombo if he returned to Sri Lanka but that he expected that CID would take him for questioning. The Tribunal put to the applicant that there had been many returnees who had been questioned and released on their return after an illegal departure, and the applicant said that he did not know what had happened to them.

11. The applicant reiterated his previous evidence that if he returns to Sri Lanka, he will return to the furniture business and said that his fear of returning was not only the possibility of revenge by [Mr A] for his past refusal to give in to extortion, but also of the persecution of him in the future as a Tamil business owner in Batticaloa.

    SUBMISSIONS

12. The applicant provided numerous submissions to the Tribunal, and its predecessor, prior to each hearing.

    November 2012 submission

13. In the first submission lodged on 2 November 2012, the applicant’s lawyers provided a chronology of events said to be relevant to the applicant’s claim, including the fact that his uncle was murdered in 1990 by the Sri Lankan army when he and several Tamil men also on the bus, were ordered to disembark from a bus because he was perceived to be a supporter of the LTTE. It was also claimed that the applicant started a business with his [uncle] in 2004 where they operated a [business 1] located in [Village 1] town in the Batticaloa district. It was claimed that about three times a month, members of the TMVP would visit the [business 1] asking for [resources] and money. His uncle provided the [resources] and money but did not tell the applicant how much money he would pay. When the applicant was working at the [business 1], customers would ask him to make furniture for [them] and so he decided that there was a market for him to open a furniture shop, which he did in December 2011. It was submitted that after his first month of operation, the applicant had an active business that was well-stocked with furniture, and he would have been perceived by others as a businessman of good wealth. He was also easily able to be identified as a person of Tamil ethnicity.

14. The claims made by the applicant set out in his statement of July 2012 were repeated, with some additional details. These submissions also sought to address perceived inconsistencies raised by the delegate in her decision about answers the applicant gave to questions about staying at his mother’s house. It was submitted that the applicant stayed at his mother’s house at night but visited his wife and son during the day and was told about the white vans passing by his house and his workplace by both his wife and his manager. It was also submitted that the applicant was informed by his wife in August 2012 that [Mr A] had attended their residence and demanded that she attend the TMVP office. She was questioned about his whereabouts. This was said to be relevant to the question of whether the applicant had a well-founded fear on the basis that threats in the past may be indicative of what may happen in the future. It was also submitted that there was country information that was well-known amongst Tamil citizens that the TMVP were capable of doing anything and if there were threats it was likely that those threats would be carried out. It was submitted that Tamil business owners in a paramilitary controlled area fell within the refugee ground of being a member of a particular social group and that there was country information indicating that Tamil business owners who are wealthy, or perceived to be wealthy, faced a real risk of torture, abduction, arbitrary arrest and detention. The applicant relied on country information such as the UK Home Office Fact-Finding Mission of August 2009. It was further contended that the applicant was a failed asylum seeker which was also a particular social group and that there was a deep-seated view that Tamils who seek protection are supportive of the LTTE.

15. It was submitted that, even if it was not accepted that the applicant would be targeted for convention reasons, it should be accepted that the applicant would be particularly vulnerable to criminal violence in Sri Lanka and there were substantial grounds for believing he would be at risk of significant harm if he was removed from Australia and returned to Sri Lanka.

    First Tribunal post-hearing submissions

16. Following the hearing before the first Tribunal, the applicant’s lawyers provided further submissions, including newspaper articles reporting on a group of commanders, including [Mr A], brutally killing or assaulting others in Sri Lanka as reported in 2007. Supplementary submissions made contentions about a crackdown in relation to failed asylum seekers and pre-charge and pre-trial detention for illegal migrants.

    Second Tribunal submissions

17. In submissions before the second Tribunal, it was contended that it should be accepted that [Mr A] is the person referred to in the news reports submitted to the previous Tribunal reporting that [Mr A] had committed two murders and that he was, and at the time of the submissions still was, a TMVP leader in the area. It was submitted that the applicant was the owner and part owner of two businesses in the area and as such, he would generally fit the profile of a person who would be at risk of being imputed with the political opinion supportive of the LTTE. It was contended that the applicant faced a real chance of serious harm by reason of his previous interaction with [Mr A] and the TMVP and the stigma or association he had of being a wealthy Tamil businessman from the former strongholds of the LTTE.

18. In summary, it was submitted that the applicant was a member of a particular social group on three counts, being a young Tamil businessman from the former strongholds of the LTTE in the West Eastern province, alternatively a young Tamil businessman who defied extortion claims by the pro-government paramilitary or a failed asylum seeker who left Sri Lanka illegally and will be suspected of having links with the LTTE. It was also submitted that he may be persecuted by reason of imputed political opinion and race, namely being a Tamil.

    Pre-hearing submissions to this Tribunal

19. Prior to the First Substantive Hearing before us, the applicant provided submissions to the effect that it should be accepted that the applicant was able to evade the TMVP before leaving Sri Lanka and that he had given detailed evidence about this before the first Tribunal. It was also submitted that the applicant now had a claim arising out of his role in Perth, namely the fact that he participated in various Tamil commemorative days and supported the struggle for an independent state of Tamils. It was submitted that insofar as there was inconsistencies in the evidence that he gave before the previous Tribunals, it should be taken into account that providing evidence through interpreters had its challenges. In any event, the Tribunal should not have regard to the matters raised before the second Tribunal because the review was undermined by the apprehended bias of the presiding member. The applicant’s lawyer provided additional country information being the UK Country policy and information note: Tamil separatism, Sri Lanka, dated August 2022, which was updated on 22 September 2022. Relevantly, the applicant’s lawyer referred to particular paragraphs of this report which we note are broadly consistent with the DFAT report for Sri Lanka dated 23 December 2021.

20. Following the first hearing, the applicant’s lawyer provided two further submissions, the first dated 29 November 2022 (November Submission) and the second dated 22 December 2022 (December Submission).

    November Submission

21. The November Submission referred to extortion by the TMVP as an established ground of persecution of Tamils and submitted that the fact the applicant had participated in Tamil separatism events in Perth after he came to Australia further exposed him to the risk of serious or significant harm because he participated in those events. It was submitted that he was a member of a particular social group, being a Tamil business owner, and that the TMVP was still active as a paramilitary group. In this regard the applicant’s lawyer referred to country information from the Immigration and Refugee Board of Canada dated 17 February 2012 and a decision of the Tribunal in 2018, concluding that the TMVP continued to be involved in criminal activities.[2] It was also submitted that there was recent information, being a media article in August 2020, to the effect that TMVP linked operatives cooperated with the Sri Lankan navy to suppress Tamil fishermen. It was submitted that even after 10 years, the applicant remained concerned that the TMVP was still looking for him and had threatened to harm him on his return. Country information, such as this article, evidenced that TMVP paramilitary group still existed and were engaging in criminal activities. If the applicant returned to Sri Lanka, he would commence a business, much like his previous business, and he would be targeted for extortion.

    [2] 1605302 (Refugee) [2018] AATA 5723.

22. It was further submitted that the Sri Lankan government is still very concerned about the potential re-emergence of the LTTE. The government monitors the activities of the Tamil diaspora outside Sri Lanka and has reported that sur place activities on behalf of proscribed organisations put those who have participated in a higher risk category. The applicant has participated in such events, and it is reasonable to assume that his activities would have been watched and would be within their knowledge. In particular, the applicant relies on the decision of the UK Upper Tribunal in KK and RS (Sur place activities: risk) Sri Lanka CG[3] where the Upper Tribunal laid down certain country guidelines. These guidelines are referred to below in more detail in relation to country information. The applicant’s submissions also rely on the 2021 DFAT report in support of his claims, the relevant detail of which are set out below. It is submitted that the government would believe that many ‘boat people’ are former LTTE cadres and they are targeted on their return. It was also submitted (repeating previous submissions), that the applicant as a failed asylum seeker who had left the country illegally by boat would be exposed to a greater risk of harm. He could not relocate and, relevantly, if he relocated to Colombo, he would face both legal and societal discrimination.

    [3] [2021] UKUT 0130 (IAC).  

    December Submission

23. In the December Submission, the applicant’s lawyer provided an article from the Daily Mirror dated 24 June 2022 which noted that an informant of the TMVP had made ‘explosive revelations’ to the United Nations, revealing sensitive information about crimes linked to the TMVP relating to the murder of former MPs and the disappearance of a journalist. These events occurred in 2005, 2006 and 2010 respectively. It is submitted that the leaders of the TMVP at that time are the same people who have committed unlawful activities with impunity.

    March Submission

24. The applicant filed a further set of submissions prior to the hearing on 8 March 2023 (March Submission), which his lawyer spoke to at the second hearing. With respect to the country information on [Mr A], the applicant submitted that:

    a.although [Mr A’s] name may not have been reported after 2008, it was not an indication that he had left the Karuna faction which the country information confirmed as controlling the [District 1] (where the applicant’s business was based);

    b.the country information supports a finding that neither Karuna nor [Mr A] ever left the TMVP; they formed a faction which continues to operate;

    c.as of 2012 there was country information contained in the Immigration and Refugee Board of Canada to the effect that both the Karuna faction and the Pillayan Faction of TMVP existed in 2012 and that both were resorting to extortion of the business owners in the [District 1] to solidify their revenue in the post-war environment; and

    d.there is no doubt in the applicant’s evidence that the Karuna faction of the TMVP continue to extort ‘business owners like him’ and that even if there were doubt, it was of a nature where the applicant should have the benefit.

25. With respect to the country information on the TMVP’s current activities, the applicant referred to the December 2015 DFAT Country Information Report and highlighted the passage at [2.35] to the effect that as of 2015 DFAT was aware of credible reports of criminal activity by TMVP, although verifying them was difficult. The applicant then referred to the December 2021 DFAT Report and in particular the statement at [4.1] that criminal activity by government forces, the LTTE and paramilitary groups ‘are likely to have not ceased entirely’ and that ‘a culture of impunity exists with regard to those plausibly accused of such crimes’.   

26. The applicant also referred the Tribunal to a report from the Immigration Refugee Board of Canada (IRBC) dated 2 May 2022 (paragraphs 4 and 4.1) which it is contended indicates the continued existence of paramilitary groups in Sri Lanka and the harm Tamils, particularly single Tamil women in Sri Lanka, are exposed to by these groups.

    April Submission

27. In a submission dated 12 April 2023, the applicant’s lawyer provided a news report from TamilNet dated 18 January 2018 headed ‘Karuna paramilitary appropriates pasture land in Paduvaan-karai electoral exploitation’. The article reported that the paramilitary leader known as Karuna, who had been collaborating with the Rajapaksa regime in the past, was deploying violence and intimidation against dairy farmers in the Batticaloa region. It was submitted that while the TMVP joined an alliance with the SLFP it nonetheless continues to carry out criminal activities and that the news report further corroborates the applicant’s evidence that the TMVP factions are still carrying out criminal activities including extortion.

    COUNTRY INFORMATION

28. It is well-known, and as recorded in the most recent DFAT Country Information Report dated 23 December 2021, that relations between Sri Lankan’s majority Sinhalese and minority Tamil communities have been tense for many years. After independence from the United Kingdom in 1948, successive Sinhalese governments introduced measures to promote the primacy of the Sinhalese community, which created a sense of marginalisation within the Tamil community. This encouraged calls for an independent Tamil state in the predominantly Tamil populated north and east of the country. A number of militant groups emerged, the most prominent being the LTTE. It formed in 1976 and launched an armed insurgency against the Sri Lankan state in 1983. Government forces retook the north and east of the country from 2007 and 2009, culminating in the military defeat of the LTTE in May 2009. The UN and human rights organisations documented serious violations in the final stages of the war when Mahinda Rajapaksa was the President.[4]

    [4] DFAT Report [2.1] – [2.2].

29. As noted by DFAT:

    Sri Lanka’s 26-years civil war is estimated to have claimed 100,000 lives and displaced over 900,000 people. Civil society groups and NGOs have criticised the Rajapaksa’s for enabling and covering up alleged war crimes and atrocities against civilians.[5]

    [5] Ibid [2.2].

30. The government changed in 2015 and the new president, Maithripala Sirisena, promised a path of reconciliation with the Tamil minority.

31. In April 2019, a local Islamic extremist group carried out coordinated terrorist attacks against Christian churches and hotels. Following these attacks, there was a change of government and Gotabaya Rajapaksa was elected as the new President, choosing his elder brother, Mahinda, as his Prime Minister.

Persecution as a Tamil and failed asylum seeker

149.   For the reasons outlined by DFAT in its most recent report and as confirmed by the UK Home Office in its updated country guidance published in September 2022, we are not satisfied that the applicant carries a profile that would bring him to the attention of authorities such that he would be monitored, harassed or targeted. Similarly, the fact that applicant is a Tamil and a failed asylum seeker will not, of itself, subject him to greater scrutiny, harassment and monitoring to such an extent that this would be assessed as constituting serious harm. As observed by DFAT, societal discrimination is not a major concern for Sri Lankan returnees, including failed asylum seekers.

150.   We accept that the applicant departed Sri Lanka illegally and he has no passport. However, there is no evidence, nor does the applicant contend, that he had an active role in people smuggling such that he would be subject to questioning by the police on this basis. He, like many others after 2009, left Sri Lanka by taking advantage of people smuggling traders.

151.   The applicant is a Tamil, who left Sri Lanka illegally, has lived in Australia for over 11 years, is a failed asylum seeker and has participated in commemorative Tamil activities in Perth. We are not satisfied that the applicant will be imputed with a political opinion that is pro-LTTE or pro-Tamil separatism by reason of these matters alone to such an extent that it is likely to draw adverse attention from the government of Sri Lanka.

152.   Having regard to the country information reviewed, including the reports of DFAT, the UK Home Office and the Upper Tribunal decision of KK and RS, we accept that if the applicant is returned to Sri Lanka, particularly if he returns with a temporary travel document, he will be questioned by police at the airport to check his identity. Because the applicant left Sri Lanka illegally, he may be charged under the Immigrants and Emigrants Act 1948. A person who pleads not guilty will usually be granted bail then released. Those convicted of an offence for leaving Sri Lanka illegally face penalties that can include imprisonment of up to five years and a fine, although DFAT reports that most cases result in a fine, not imprisonment. DFAT also reports that sources suggest that those who are unable to pay are permitted to pay by instalments but, if still unable to pay, may be imprisoned for 14 days. According to DFAT the fine typically imposed is 50,000 LKR to 200,000 LKR. This is approximately $350 to $1,400. The applicant gave evidence that he had savings in Australia sufficient to be able to start a business in Sri Lanka. If the applicant is charged and fined, there is country information to the effect that the fine will be a relatively modest and would be between $350 and $1,400. Having regard to the evidence of the applicant about his savings, it is likely he could afford to pay this amount, although we accept we did not put this question to the applicant directly.

153.   The applicant contends that if he is questioned at the airport, because of the circumstances in which he left and because he has been living in Australia for over 11 years, the police may undertake more detailed enquiries, including in his hometown. The applicant is concerned about whether local TMVP groups and [Mr A] may become aware of his return and whether they may seek to create trouble for him with the police on his arrival or on his return to his district. We accept that the applicant has genuine fear about these matters and, while it seems unlikely, we do not consider that the applicant’s fears are fanciful.

Cumulative impact of claims

154.   Making an assessment about whether there is a real chance something in the future may happen is a difficult process. Looking at each claim made in isolation and forming a view about whether there is a real chance based on that claim is an unduly narrow and erroneous approach.

155.   Whether a fear is well-founded is a question to be determined on the whole of the evidence. As observed by Kirby J in MIEA v Wu Shan Liang [1996] HCA 6 at [26]:

…the decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material.

156.   Justice Kenny considered this observation in MIMA v Rajalingam [1999] FCA 719 at [140] and stated:

In deciding whether it has a relevant satisfaction for grant of a protection visa, the Tribunal is required to bear in mind the totality of the case. That, as we have seen, includes any relevant uncertainty that it entertains as to whether claimed events in the first named applicant's past may ground a fear of persecution for a Convention reason. In that respect, the Tribunal is required to do no more than to satisfy itself in accordance with commonsense and the ordinary experience of mankind.

157.   As already noted, we accept the credibility of the applicant’s claims about what occurred in Sri Lanka in 2012. He left Sri Lanka illegally, leaving his wife and child behind with little guarantee about the future on the boat of a people smuggler. We accept that he travelled to Australia soon after the events claimed because of a genuine fear.

158.   We find that the applicant’s activities in Australia, his illegal departure from Sri Lanka and his potential return to the same region where he previously lived and was threatened by individuals and paramilitary groups who may continue to have a presence in the region, may render him more vulnerable to threats of harm. In other words, we cannot discount or ‘foreclose’ the possibility that he will be targeted directly or vulnerable to reporting to CID in the future. These matters would contribute to a cumulative risk to the applicant that he may be forced to compromise his livelihood by giving in to criminal extortion or otherwise be held by CID for long enough, and in conditions, which on the country information may amount to serious harm. We also accept the applicant’s contention that in the circumstances of his case, state protection may not be available or effective to mitigate or forestall any harm and that state instrumentalities may in fact be used against him by the protagonists.

159.   In summary, we find that the applicant’s fears of persecution are well-founded.

Relocation

160.   We have considered whether relocation would be reasonable and effective in the circumstances. Given the family and commercial ties that the applicant has in his hometown, relevantly including his wife and child who have had to live there without him for a significant period, we are satisfied that relocation is not reasonable.

Third country protection

161.   Section 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside, whether temporarily or permanently in a safe third county.

162.   There is no evidence that the applicant has the right to enter and reside in any safe third country. We therefore find that Australia’s protection obligations in respect of the applicant are not excluded by reason of s 36(3) in the Act.

Conclusion

163. For the reasons given above, we are satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s 36(2)(a).

DECISION

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

J.L Redfern PSM
Deputy President

Jessica Henderson
Member