1932240 (Refugee)

[2022] AATA 5220

1932240 (Refugee) [2022] AATA 5220 (21 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Simon Josiah Mason (MARN: 1792763)

CASE NUMBER:  1932240

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Amanda Paxton

DATE:21 December 2022

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 21 December 2022 at 12:30pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Court remittal – imputed political opinion – fear of harm from local and national politicians because of father and relative’s dispute with them – father in hiding and relative’s protection visa in Australia – limited and vague oral evidence – age, limited education and mental health – decision under review remitted

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 19D(4)
Migration Act 1958 (Cth), ss 5(1), 5AAA, 36(2)(a), (aa), (2B), 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2

CASE
Guo Wei Rong and Pan Run Juan v MIEA (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
MZXRE v MIAC (2009) 176 FCR 552
MZZZW v MIBP (2015) 234 FCR 154
SZEPZ v MIMIA (2006) 159 FCR 291
MIAC v SZGUR (2011) 241 CLR 594
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZEUI v MIAC [2008] FCA 1338

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 Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who is a citizen of Sri Lanka, applied for the Protection Subclass XA 866 visa on 1 March 2013 and the delegate refused to grant the visa on 1 December 2014.

3. The applicant applied for review of the delegate’s decision to the then Refugee Review Tribunal (RRT) (‘the First Tribunal’) on 9 December 2014. On 21 April 2016 the First Tribunal, differently constituted, affirmed the delegate’s decision not to grant the applicant a protection visa as it was not satisfied that the applicant is a person in respect of whom Australia has protection obligations pursuant to s 36(2)(a) or s 36(2)(aa) of the Act.[1]

   [1] AAT 1406690.

4. An appeal of this decision to the Federal Circuit Court of Australia (FCCA) was dismissed on [date] 2019. On [date] 2019, the orders of the FCCA were set aside by the Federal Court of Australia (FCA) and the matter remitted to the second respondent for hearing and determination according to law.[2]

   [2] [deleted].

5. The matter is now before the Tribunal pursuant to an order of the Court.

6. The applicant appeared before the Tribunal on 27 October 2022 to give evidence and present arguments. At the request of the applicant who now resides in regional Queensland, the Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicants. The applicant was represented in relation to the review and the applicant and his representative attended the hearing together in the representative’s offices in Brisbane. The video was clear throughout the hearing and the applicant’s answers were responsive and appropriate to the Tribunal’s questions.  The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

   RELEVANT LAW

8. 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

9. 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).

10. 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.’

11. 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.

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

13. 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.

14. 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.

15. 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.

16. 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.

17. 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, to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

18. 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

19. 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’).

20. 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.

21. 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

22. 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 (the Department), 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.

    Information considered on remittal

23. Where a direction is given to reconstitute the Tribunal, the Administrative Appeals Tribunal Act1975 (Cth) requires the reconstituted Tribunal to continue the proceeding.[3] In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted.[4] This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.

    [3] Section 19D(4) of the Administrative Appeals Tribunal Act 1975 (Cth), inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015).

    [4] Section 19D(4) of the Administrative Appeals Tribunal Act 1975 (Cth), inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015). See also SZEPZ v MIMIA (2006) 159 FCR 291 at [39] and MIAC v SZGUR (2011) 241 CLR 594 at [50].

24. Where the previous decision was set aside by a court and the matter remitted, the majority judgments in SZHKA indicate that a further opportunity to appear before the new Member must be given in every case unless one of the exceptions in ss 360(2)/425(2) applies.[5] Consistently with NBKB, a fresh opportunity to give evidence and present arguments on all live issues arising in the review should be given at a further hearing, even if those issues were raised in an earlier hearing by the previous Member.[6]

    CONSIDERATION OF CLAIMS AND EVIDENCE

    [5] MZXRE v MIAC (2009) 176 FCR 552.

    [6] Note, however, that the Tribunal may be entitled to rely on the fact that issues were identified to the applicant at an earlier hearing provided it gives the applicant a further opportunity to appear and present arguments on those issues: SZEUI v MIAC [2008] FCA 1338 at [11].

    Claims for protection and supporting documentation

25. In his Form 866C, application for a Protection Class XA visa, the applicant stated he was born in [Town 1], Puttalam, North Western Province in Sri Lanka on [Date] and is of Tamil ethnicity and Hindu.[7]  He stated he had resided in [Village 1], Puttalam North Western Province in Sri Lanka and worked as a fisherman in [Village 1] from December 2009 until March 2012.

    [7] See Department file [Reference].

26. In his statement to the Department on 21 February 2013, the applicant claimed to fear harm from the Sri Lankan Criminal Investigation Department (CID) arising from a dispute between his father and his [Relative A], and a politician with links to the CID. He made the following claims for protection:[8]

    ·     He fled Sri Lanka because he was afraid to remain there following the invasion of his home by CID personnel who were looking for his [Relative A] and father and stated they would come after him if his mother did not tell them where his father and [Relative A] were.

    ·     He fears returning to Sri Lanka because he believes the authorities will kidnap him, torture him and kill him.

    ·     He believes the Sri Lankan authorities, especially the CID and police who have connections with the people against his father and [Relative A] will harm him and mistreat him after they abduct him. They will likely kill him as his [Relative A] is in Australia and his father is still in hiding. His personal details are known to the CID.

    [8] See Department file [Reference].

    Tribunal submissions

27. In submissions to the First Tribunal dated 4 April 2016, the applicant’s then representative stated that the applicant faces a real chance of persecution in Sri Lanka involving serious harm and systematic and discriminatory conduct, because of his race as a Tamil, his membership of a particular social group of failed asylum seekers in Sri Lanka, and his actual/imputed political opinion arising from:

    ·     His family’s political support of and activities on behalf of [Mr B], [official];

    ·     His perceived support for the Liberation Tigers of Tamil Eelam (LTTE); and

    ·     His status as a failed asylum seeker.

28. It was submitted that the applicant continued to rely on his earlier statement and submissions and added the following:

    ·     He claims he will be imputed with the same political opinions as his father and [Relative A]. They support the Sri Lanka Freedom Party (SLFP) and particularly a candidate named [Mr B]. The applicant instructed that his [Relative A] and father provided [support] to the candidate and in response the applicant’s family were provided government [assistance]. The Sinhalese politician and rival to [Mr B], Jega Nishantha, gained the support of the CID who used extortion and false accusations to pursue his [Relative A] and father. His [Relative A] was arrested and released after two days after the intervention of [Mr B], and his father who was warned to be careful went into hiding, where he has been since that time. The CID came to the applicant’s home demanding to know where his father was and beat the applicant. Afraid of future harm, the applicant decided to leave Sri Lanka.

    ·     He fears he would be persecuted because he is a Tamil and is at risk of being subjected to serious harm from the Sinhalese majority. As a Tamil, he and his employer were prevented by Sinhalese fisherman by threats and local restrictions from fishing in certain areas. He also submitted that he was constantly ridiculed and treated differently in Sri Lanka because of this ethnicity.

    ·     He claims that returnees are commonly treated as dissidents and imputed with anti-government political opinions. He fears that as someone who departed Sri Lanka illegally and sought asylum in the West, he will be treated as a dissident and will likely be detained and tortured.

    ·     The applicant is fearful that if he is returned to Sri Lanka, he would be at risk of further harm due to the political alliances of his father and [Relative A]. He submits that the CID have indicated they are willing to seriously harm him given his family’s political involvement and that accordingly, he is fearful he would face the same harm upon return to Sri Lanka.

    ·     He further fears that as a young male Tamil who has travelled to the West and claimed asylum and lived for a prolonged period abroad, he will be imputed with an LTTE political profile and treated with suspicion.

29. The Tribunal received submissions dated 30 October 2020 from the applicant’s representative in support of the applicant’s claims for protection. The submissions also included the following documents:[9]

    ·     Statement by applicant dated 27 October 2020.

    · Police report dated [2013].

    ·     Decision record for the applicant’s [Relative A] dated 29 April 2016.

    ·     The Sunday Leader ‘Puttalam Desperate for Change’ dated 6 October 2012.

    [9] AAT 1932240, Doc Id 7803353, 30 October 2020.

30. In his declaration dated 27 October 2020, the applicant makes the following claims:[10]

    [10] Ibid.

    ·     Since my previous statements, I have had the chance to discuss my matter with my mother and [Relative A] at greater length. I have also had the opportunity to read the Tribunal decision for my [Relative A] from 2016. This has assisted me in clarifying the risk of harm that I face.

    ·     I take this opportunity to provide further context and background to the intra-party conflict in Puttalam District. I have the benefit of having discussed this with my mother and [Relative A] and this has improved my understanding of why I am at risk.

    ·     Both [Mr B] and Jagath Samantha were vying to be [UPFA/SLFP candidates].

    ·     [Mr B] is Tamil and Jagath Samantha is Sinhalese. UPFA/SLFP has a substantial majority within Puttalum District so generally the Chairman's position would fall to whomever prevailed within the political party. This means intra-party candidate conflict can be significant and long-lasting leading up to an election.

    ·     I understand that there is an ongoing issue of Tamils within leadership positions of the UPFA/SLFP being slowly forced out by other Sinhalese Leaders. I understand that they have frequently used violence and intimidation. I understand that less and less Tamils hold positions of authority within political parties. I understand this is quite common in Sri Lanka but has been a particular issue in Puttalam due to Jagath's well documented aggression and history of violence.

    ·     [Mr B] was the [Official 1] of [Body 1] up until [year]. Since that time supporters of Jagath Samantha have taken active steps to dismantle [Mr B]'s base of support and intimidate and deter his close supporters. I know that many of his supporters have fled the country and a few of his supporters that remained have been tortured or otherwise harmed.

    ·     I understand that the police are not inclined to constrain Jagath or Sanath because these individuals ensure that the police are funded. It is my understanding that there are also bribes involved that prevent the police from prosecuting. I understand the police are comfortable putting on a performative arrest, but this never ends up in a sentence or penalty for Jagath or Sanath. I further understand that the police regularly decline to prosecute the supporters of Jagath or Sanath when they are involved in violence. I also understand that the brother of Jagath, Sanath Nishantha, is a parliamentarian.

    ·     My father and [Relative A] were [supporters] of [Mr B] from childhood. They come from the same region. I understand that when [Mr B] first obtained the position of [Official 1], my father and [Relative A] were instrumental in getting him [elected].

    ·     I understand that [Mr B] currently has a level of political protection from his community support. I understand that Jagath would face the threat of Tamil community reprisals if [Mr B] were to be directly harmed. I understand that the political protection provided to him does not extend to my father and [Relative A].

    I understand that Jagath Samantha is no longer the Chairman of Arachchikattuwa Pradeshiya Sabha but is now the [vice-Chairman]Mr B. I understand that there is ongoing

    ·     conflict and Jagath is still harming and intimidating the supporters of [Mr B].

    ·     I clarify the name of my [Relative A] as [name].

    ·     My [Relative A] arrived in Australia in 2012 and is now resident in Melbourne. He applied for protection on 22 November 2012. On 29 April 2016 he received a positive decision at the Administrative Appeals Tribunal.

    ·     My [Relative A] has provided a copy of his decision received from the Administrative Appeals Tribunal.

    ·     I understand that my [Relative A]'s wife was assaulted by the supporters of Jagath. I understand that this happened shortly after my [Relative A] fled Sri Lanka. I have previously provided the police report of this incident to the Tribunal. I do not believe the police will follow up this matter.

    ·     I understand that my [Relative A]'s wife has fled to [location] with [specified family members]. They are now living in hiding and are unable to live ordinary lives.

    ·     My father is still in hiding in [District 1]. He still believes that he is at risk of harm from Jagath. I understand that he is still married to my mother but is physically separated from her. He lives in hiding and is deeply afraid that he will be found by supporters of Jagath Samantha who previously threatened him.

    ·     I never speak with my father; all my information is provided by my mother. My mother has conveyed that she believes that my father is still at risk from Jagath.

    ·     I say that I still have a general fear of harm or discrimination based on my Tamil ethnicity.

    ·     I am concerned that the laws on returning asylum seekers will require me to return to Puttalam District and that when this happens I will be harmed.

    ·     I take this opportunity to comment on my mental health. Since fleeing Sri Lanka, I have struggled with my mental health and anxiety related issues.

    ·     I often experience insomnia associated with my acute anxiety and can experience acute tiredness. Some days I am unable to focus and unable to motivate myself.

    ·     Since that time, I have struggled to focus and find I am constantly ruminating on the future. I am particularly afraid of the CID and find that there are scenarios running in my head where I am tortured or harmed. Considering return to my country triggers these thoughts. I immediately begin sweating, experience hot flushes and feelings of panic. I also find that these thoughts cause me to freeze up and I am unable to form a sentence.

    ·     I am particularly concerned that if I am required to return to Sri Lanka, I will be unable to pass through the airport customs without having a panic attack. I am concerned that this will draw attention to myself and I may be targeted or otherwise harmed by the CID.

    Evidence at hearing

1. Noting that in his most recent statement to the Tribunal dated October 2020, the applicant commented about his mental health, indicating that he was suffering anxiety related issues including acute tiredness, insomnia, symptoms of panic attack and depression, the Tribunal sought to establish the applicant’s competency to give evidence and present arguments at hearing. The applicant told the Tribunal that although he continues to suffer anxiety and sleep difficulties due to his situation, in his current state of mind he was able to respond to Tribunal questions. The Tribunal (from a lay perspective) considered that his distressed presentation at hearing and isolation from family and support as discussed below strongly suggested that the applicant was experiencing poor mental health. He explained that he has not received any mental health assistance, medication or counselling, to manage his mental health because he does not have a Medicare card. He indicated that he understood the Tribunal questions and his responses, while as discussed below were limited and frequently unfocussed, were broadly appropriate. The applicant was encouraged to advise the Tribunal if he experienced any difficulties giving evidence. The Tribunal was satisfied the applicant was fit to proceed with the hearing and that he was able to provide evidence and present arguments.

2. The applicant confirmed that he was born on [Date] (is [Age] years old) and is of Tamil ethnicity and Hindu. He confirmed he had resided in [Village 1], Puttalam, North Western Province in Sri Lanka. He told the Tribunal that after finishing school, he worked for a Tamil fisherman. He stated that conflict existed between Sinhalese and Tamil fishermen and Sinhalese men would attack the applicant’s boat with swords and make false accusations to the authorities, who placed restrictions on the applicant and his employer on where and when they could fish. The applicant stated that he was constantly fearful that he would be harmed by the Sinhalese men, and for this reason he decided to go to [Country 1]. He went briefly to [Country 1] in 2012 where he worked as [an occupation], returning in May 2012.

3. The applicant stated that he was still single and that both his parents and his younger brother and sister remain in Sri Lanka. As far as he knows, his mother and siblings live in Puttalam with his [Relative A]’s wife. His [Relative A] came to Australia by boat departing Sri Lanka about the same time as the applicant was granted a protection visa in 2016.  

4. The applicant stated that he has not talked to his mother for over 12 months because of his anxiety, so he does not know if they are still with his aunt. He stated that since they stopped his work rights, and he is living with the help other people, and fears return, he is too stressed to speak with her, and he can’t do anything because of his anxiety. For the same reason he hasn’t spoken with his siblings for more than a year, and he does not know what they are doing.

5. The applicant said that he can’t remember the last time he was in touch with his father because it has been so long, and he doesn’t know any more about him other than when he last spoke with his mother, he was in [District 1] and did not return to Puttalam for fear of harm there.

6. He confirmed his claim that from a young age, his father and [Relative A] were strong supporters of the SLFP, and in particular, they provided support to [Mr B], Tamil candidate for the position of [Official 1]. [Mr B], as a Tamil, looked after Tamils in the area. He explained that the rival candidate was Sinhalese, Jagath Samantha, from an established SLFP political family. In 2012, as rivalry developed between the two, Jagath Samantha used his influence to persuade the CID to intimidate the applicant’s [Relative A and father].

7. The applicant gave evidence that around the time when he returned from [Country 1], hostility from Jagath Samantha [escalated], and the CID were persuaded to arrest his father and [Relative A], on what he believes were trumped up [charges].

8. He said that [in 2012] his [Relative A] was taken by the CID and assaulted and released [later] following intervention from [Mr B] but warned to remain in Puttalam. On [date], his [Relative A] met with the applicant’s father and warned him about the CID’s interest in him. [The applicant’s father] went to the fish market ostensibly to buy fish, but never returned.

9. The applicant gave evidence that around midnight on [date] 2012, the CID came to the applicant’s house, demanding to know his father’s whereabouts. They beat the applicant and said to the applicant’s mother that if the CID were not told of the father’s and [Relative A]’s whereabouts, they would abduct him. He stated that no criminal or other charges have been made against him.

10. On [date] 2012, a [relative] informed the applicant that he could arrange for him to go on a boat to Australia. The applicant left Sri Lanka illegally by [boat], arriving in Australia as an unlawful maritime arrival on [date] June 2012.

11. The applicant stated that he watches some news, but he does not follow politics because of his anxiety and depression. As he hasn’t been able to speak with his mother or family members, he does not know whether [Mr B] is still in politics in Puttalam. He told the Tribunal that he talks with this [Relative A] by phone now and then, but they don’t discuss much about the situation in Sri Lanka.

12. In respect of the translated police report indicating that his [Relative A]'s wife was assaulted by supporters of Jagath Samantha, the applicant stated that he was told at the time that Jagath Samantha had attacked them in 2013.

13. The applicant told the Tribunal that he fears return to Sri Lanka because Jagath and his brother, MP Sanath Nishantha, can do harm at any time, and in the absence of his father, that the applicant, as the eldest son of the family, will be the focus of their retribution. He told the Tribunal that they, Jagath Samantha and brother, Sanath Nishantha, do not allow his family to do anything because they don’t like his family.

14. He stated that he has had no connection with the LTTE but fears he will be monitored as pro-LTTE because his father had been accused of assisting the LTTE because of his “family problem.”

15. The applicant explained that after a year on Christmas Island, and a period in [location], he was settled in Melbourne where his [Relative A] lived, but that he later moved to [town] to work in [a] factory. However, he lost work rights in 2016 (it appears that an application for a Bridging visa E was not lodged within the required timeframe) and since that time he has been relying on the support of friends, the Tamil community and to a limited extent his [Relative A]. He described a precarious existence.  

16. He stated he is fearful about going through the airport because his life will be in danger, and that on arrival he will be harmed; he has been living here for a long time and that because of his mental health issues, he only feels safe here. The applicant also told the Tribunal that he also feared harm on the basis of his Tamil race, but beyond these issues, he fears harm from Jagath Samantha.

    Post-hearing submission

17. On 10 November 2022, the applicant’s representative made submissions to the Tribunal concerning the applicant’s profile of risk of persecution by virtue of familial connection, i.e. his connection to his father and [Relative A].[11]

    [11] AAT 1932240, Doc Id. 10427290, 10 November 2022.

18. Also submitted on 10 November 2022 is a letter from the applicant’s GP, [Dr C], [Medical Centre], concerning the applicant’s mental health, referral to a psychologist and medication.[12]

    [12] AAT 1932240, Doc Id. 10428752, 10 November 2011.

19. A psychologist report dated 22 November 2022 is also provided by [Dr D], [Medical Specialists].[13]

    [13] AAT 1932240, Doc Id. 10469944, 23 November 2022.

    Federal Court decision

20. The appellant alleged that the Tribunal at first instance erred in two respects:

    ·     The Tribunal, by finding that the appellant was not a truthful or credible witness, engaged in irrational or illogical reasoning, made findings without any probative basis, and failed to carry out its statutory task by failing to consider relevant information.

    ·     The Tribunal engaged in irrational or illogical reasoning, and failed to carry out its statutory task by failing to properly consider a police report submitted by the appellant regarding an attack on his aunt by marriage on his paternal side.

21. Both grounds of appeal were upheld. In relation to the first ground, Justice Beach concluded that none of the asserted discrepancies upon which the Tribunal relied were in fact significant discrepancies, and to describe them as that, and to have used them to conclude that the appellant was not to be believed, was erroneous.[14]

    [14] MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154 at [48].

22. In relation to the second ground, Justice Beach stated that it was not open to the Tribunal to consider that the document was not genuine, and that some weight should have been given to this document which on its face confirmed that the appellant’s [Relative A] was of interest at that time at least to supporters of Sanath Nishantha.

    FINDINGS AND REASONS

    Identity and country of reference

23. The applicant has consistently confirmed information presented in his Form 866C, application for a Protection Class XA visa that he was born in [Town 1], Puttalam, North Western Province in Sri Lanka on [Date].[15] On the basis of the consistent evidence of the applicant in relation to his identity, the Tribunal finds there is no evidence to suggest that he has a right to enter and/or reside, whether temporarily or permanently, in any other country but Sri Lanka. Therefore, based on the information provided by the applicant, the Tribunal finds he is a citizen of Sri Lanka and as such his protection claims will be assessed against Sri Lanka as the country of reference and ‘receiving country’ respectively. 

    [15] See Department file [Reference].

    Credibility

24. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant’s case. It is the responsibility of the applicant to specify all the particulars in support of their claim that they are a person in respect of whom Australia has protection obligations and to provide sufficient evidence in support of the claim. The Tribunal is not responsible for or obliged to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[16] Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant.[17]

    [16] Section 5AAA of the Act.

    [17] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70.

25. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[18] Care must be taken not to exclude from consideration the totality of some evidence in circumstances where a portion could reasonably be accepted. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[19] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.

    [18] Guo Wei Rong and Pan Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445 at 482 per Foster J.

    [19] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].

26. In this case, there has been much consideration of previous credibility findings and evidence presented by the applicant. The Tribunal notes that the credibility of the applicant’s claims was first raised in the delegate’s decision because he did not provide information about all aspects of his claims at his bio-data and entry interviews in 2012. The Tribunal considers that since his entry interview, the applicant has provided consistent, if not detailed, information about the basis of CID interest in the family, and since 2013 his testimony has included information indicating that the CID action was at the behest of a local Sinhalese politician. The Tribunal accepts his submission that he was not familiar with the immigration process at the time of his entry interview. While it is evident that the applicant has speculated about the CID’s motivation for action against himself and his family in different terms over the course of his application, the Tribunal considers he has subsequently provided a consistent account of his circumstances over a long period of time.

27. The Tribunal is considering this matter afresh but must take into account the FCA’s findings about the treatment of evidence. The Court found that it was not open to the First Tribunal in this case to find that differing accounts of the applicant’s subjective thought concerning the interest the CID took in this family were relevant or significant nor were they actually discrepant; that none of these minor differences should have been taken as undermining the credibility of the applicant nor as casting doubt on the objective factual elements of his claims; there were no relevant discrepancies in the appellant’s version of objective events of which he had first-hand knowledge. In relation to the applicant’s claim that the CID had falsely accused his father of arms smuggling, the Court found the First Tribunal exhibited unreasonableness and illogicality in dismissing it. Furthermore, this dismissal improperly contributed to an overall finding that the applicant was not credible. The Court found that in relation to the continued interest of the CID, the Tribunal had failed to demonstrate there were any discrepancies in evidence by the applicant. 

28. That said, the Tribunal notes that the applicant’s evidence at hearing about his protection claims was presented in a general fashion emphasising his fear. At hearing, he was inarticulate, and his evidence was often vague, limited and unfocussed, and he appeared unable to provide specific detail about the causality that led to the risk of harm arising. The applicant rarely answered the Tribunal’s questions directly. For instance, when asked whether he had been involved in politics, he stated that he and his family have all been separated. In considering the applicant’s evidence, the Tribunal formed the view that his presentation was affected by his limited education, and the fact that he was young ([Age] years old) and politically inexperienced and not well conversant with the situation affecting his father and [Relative A] on his departure from Sri Lanka.

29. The Tribunal also considered the applicant’s presentation of evidence was affected by his poor mental health. In this respect, the Tribunal takes into account the opinion of the applicant’s psychologist, [Dr D], as presented in his report subsequent to the hearing.
    [Dr D] provided the opinion the applicant is suffering from severe symptoms of depression and anxiety, related to his lack of access to medical services and lack of stable accommodation and job, fear of return to Sri Lanka and immigration status.

30. The Tribunal accepts the applicant’s knowledge of the background to his father and [Relative A]’s dispute with Jagath Samantha and his brother MP Sanath Nishantha was incomplete when he made his first protection visa statements. The Tribunal notes that the applicant has since had the opportunity to clarify his situation in discussion with his [Relative A], and at hearing, the applicant was generally clear specifying from whom he feared harm, the nature of the harm he feared, how he understood he was at risk of harm and, albeit in a limited sense, why.  The Tribunal accepts that the applicant departed Sri Lanka in considerable ignorance about the basis of CID interest in his [Relative A] and father and their relationship with the politician, Jagath Samantha, and that his understanding about their circumstances has advanced following discussion with his [Relative A] and mother and having had the opportunity to read the Tribunal decision for his [Relative A] from 2016. The Tribunal accepts that his evidence has developed over time for these reasons. The Tribunal is satisfied that this development does not reflect negatively on the applicant’s credibility but is accounted for by the fact that the applicant did not have first-hand or detailed knowledge about the CID’s interest in his father and [Relative A].

31. The Tribunal further accepts the applicant’s explanation for varying spelling of names of figures involved in his claims; that he had previously transliterated the names of key individuals, being unaware of the spelling used in Sri Lankan reportage. The Tribunal accepts that English transliteration of Tamil and Sinhalese names can diverge and accepts that the range of spellings previously provided by the applicant does not reflect on the credibility of the applicant’s claims. The Tribunal will use the nomenclature provided in the applicant’s most recent statement. 

32. Despite the general and limited nature of the applicant’s evidence, the Tribunal is satisfied that the applicant’s account was credible, and as discussed further below, is supported by country information.

    Findings of fact

33. On the basis of the consistent evidence before it, the Tribunal finds the applicant is Tamil and Hindu and a citizen of Sri Lanka. The Tribunal accepts he lived in [Village 1], Puttalam, and worked as a fisherman until he went to [Country 1] in March 2012 for work until May 2012; and left Sri Lanka illegally by boat on [date] 2012. The Tribunal accepts that the applicant left Sri Lanka illegally as a passenger by boat on [date] 2012 arrived in Australia as an unlawful maritime arrival on [date] June 2012.

34. The Tribunal is satisfied the applicant has had no criminal or other charges against him.

    Fear of harm from local political figure

35. The Tribunal has considered the applicant’s claim that he has an imputed political profile in Puttalam District which is highly likely to attract the adverse attention of local political leader, Jagath Samantha, with an established background in targeting the family members of political rivals. He repeated that he can’t go back because his life will be in danger. He later added that he could be affected in many ways, false allegations against him, not only with LTTE issues.

36. The applicant claims to fear that the local Sinhalese politician, Jagath Samantha and his supporters, will instigate violence against him, possibly through his influence over the local CID, as his family are recognised as having provided support to his Tamil rival, [Mr B], as UPFA/SLFP [candidate]. In return for their longstanding support, the applicant’s family received the [assistance] of [Mr B].

37. As discussed above, the Tribunal considers that the applicant’s evidence across various applications since 2013, has been broadly consistent. At the request of the applicant, the Tribunal has also referred to evidence discussed in the AAT decision in respect of the applicant’s [Relative A] which was provided to the Tribunal by the applicant.[20] The applicant stated that he has obtained greater nuance and precision about the factual basis for his fear from his [Relative A], and material contained in this decision. The Tribunal also takes into account the evidence of the applicant’s most recent statement and his evidence at hearing. While the Tribunal is alert to the possibility the applicant has rehearsed material provided by his [Relative A], it considered that the applicant’s evidence at hearing was spontaneous, and that all pieces of his earlier story consistently align with the additional material. For this reason, the Tribunal is satisfied the applicant is a credible witness.

    [20] AAT 1404514 (unreported) included in the submission AAT 1932240, Doc Id 7803353, 30 October 2020.

1. On this basis, the Tribunal accepts the applicant’s claim that his father [assisted Mr B’s election campaign] and that his father and [Relative A] were [supporters] of [Mr B].

2. In considering the credibility of the applicant’s claims, the Tribunal has also taken account of country information provided to the Tribunal confirming [Mr B] as a candidate for election in the [named Electoral Area] for the [United People’s Freedom Party] and Kurugamage Jagath Samantha Perera for the same [party]. The Tribunal accepts as credible the applicant’s claims that there have been ongoing issues of Tamils within leadership positions of the UPFA/SLFP being slowly forced out by other Sinhalese Leaders.  

3. The Tribunal has also considered whether this intra-party conflict in Puttalam District, led the applicant’s family to face extortion and violence instigated by, or at the behest of Jagath Samantha. The Tribunal notes that the applicant’s evidence has lacked detail and has been somewhat clouded by his speculation about the mind of participants. However, as discussed above, the Tribunal accepts the applicant was in some respects a young onlooker to events, and notwithstanding the lack of detail, the applicant’s evidence has been consistent over time and in line with that provided by his [Relative A], that his [Relative A] was arrested and that there was a risk of his father being arrested for the same reasons but he fled the area, and that the applicant was beaten by the CID claiming to search for his father.  

4. In considering these claims, the Tribunal also takes into account country information suggesting a high level of political violence in Puttalam District.[21]  The Tribunal takes into account the considerable media information about Jagath Samantha indicating that he has frequently used, and continues to use, violence and intimidation. Reports include the following.

   [21] Centre for Monitoring Election violence 2010, Presidential Election 2010 Election Day Media Communique No.4 26 January 2010

5. A report in the Sunday Leader news Article ‘Puttalam Desperate For Change’ dated from 2010 which stated:

   However for the people in Chilaw it was UPFA Provincial Council (PC) Member
   

   [22] Sunday Leader, ‘Puttalam Desperate For Change’ (202)

   Sanath Nishantha and his brother Jagath Samantha, Chairman Arachchikattuwa Pradeshiya Sabha, that has unleashed terror in the area. It was Samantha that assaulted the Swarnavahini provincial correspondent Jude Samantha on January 16 at Madurankuliya but so far the police have failed to arrest him.[22]

6. Another incident from 2012 is reported:

   A pandemonium broke out when Jagath Samantha Perera, the Chairman of the Arachchikatuwa Pradeshiya Sabha, forced his way into the Pallama Police Station yesterday with about ten other men, including his brother, and tried to forcibly remove two tippers taken into custody, according to the police.

   Police say these tippers were taken into custody while they were being used to transport gravel without a permit.

   The PS chairman and his gang had rushed to the police in two double cab trucks and attempted to remove the tippers, said the police.

   Police had arrested Ajith Chandana Perera, the brother of the PS chairman, and the others had fled…[23]  

   [23] “Arachchikatuwa PS chairman accused of attacking Pallama Police Station”, Daily Mirror (Sri Lanka), 03 December 2012, arachchikatuwa-ps-chairman-

   accusedof-attacking-pallama-police-station.html

7. An article from October 2013 states that:

   Marawila Magistrate yesterday remanded Arachchikattuwa Pradeshiya Sabha Chairman, Jagath Samantha Perera and three others for allegedly assaulting two drivers and a conductor on Sunday, till Nov. 4. The victims are being treated at the Marawila hospital.[24]  

   [24] “Arachchikattuwa PS Chairman remanded”, Island, The, 21 October 2013, >

   Information about the politics of the Arachchikattuwa Pradeshiya Sabha is included in a Canadian IRB report of November 2014. It references a discussion with a professor versed in Sri Lankan politics, who relevantly states:

   [i]n general, there is a local organizer of each of the major parties and that the [Arachchikattuwa People's Alliance Party] is the local organization of the UPFA led by the local government (Pradeshiya Sabha) chair. I am not aware of this being a separate organization apart from the UPFA. However, many of the local leaders run their local wing of the party as their own personal party (9 Nov. 2014).

   Sources explain that Arachchikattuwa is a village in Puttalam District, north of Chilaw [in Northwestern Province] (Professor 9 Nov. 2014; Humanitarian Information Centre 30 Aug. 2005). The Professor stated that Arachchikattuwa is also a "divisional secretariat" [similar to a county] that encompasses a number of villages and is administered by the elected local government called the Pradeshiya Sabha [1] (Professor 9 Nov. 2014). The Sri Lankan Department of Elections website indicates that in the 2011 local authorities elections, the UPFA won 9 seats and 72 percent of the vote in Arachchikattuwa Pradeshiya Sabha, followed by the United National Party (UNP) with 2 seats (Sri Lanka 17 Mar. 2013). Sources report that the Chairman of the Arachchikattuwa Pradeshiya Sabha is Jagath Samantha Perera (Daily Mirror 3 Dec. 2012; Hiru News 26 Nov. 2013; CMEV 25 Jan. 2010, 10), who is a member of the UPFA (ibid.)[25]

   [25] Canada: Immigration and Refugee Board of Canada, Sri Lanka: People’s Alliance Party, Arachchikattuwa, including structure, leadership and establishment; relationship with the United People’s Freedom Alliance (UPFA) (2010–November 2014), 19 November 2014, LKA104997.E, available at: >

   Sources in this report also state that Jagath was also arrested in 2012 for assaulting a UNP provincial organiser, against whom death threats were also issued, and 2013, for assaulting three bus company employees in Chilaw.[26]

   [26] Ibid.

8. An article from February 2015 describes Jagath’s arrest and remand on assault charges.[27] News reports of 2015 also refer to the conduct of MP Sanath Nishantha, Jagath Samantha’s brother, remaining as a Member of the Sri Lankan Parliament representing the Puttalam District, despite complaints made against him with Chilaw Police that he had levelled death threats to a United National Party (UNP) MP.[28]

   [27] Arachchikattuwa PS chairman remanded Hiru News, Hiru Correspondant threated by MP Sanath Nishantha (18 Sept 2015) ;  

9. Media in August 2020 reported that at least an acre of a Ramsar wetland in Anawilundawa in Puttalam was illegally cleared for shrimp farming. This caused widespread outrage and a committee was appointed for investigation. The police investigation revealed that Jagath Samantha directed the destruction.

10. A news report from 10 September 2020 noted that Jagath’s pattern of directly assaulting other political party members was still persistent:

    Upon the environmentalists' disclosure on the staggering devastation at the eco-sensitive Anavilundawa wetlands, a committee of specialists was appointed by Wildlife and Forest Conservation Minister C.B. Rathnayake to probe the matter.

    The committee report was tabled in Parliament yesterday (09) and concluded that the shrimp cultivation centre was contracted for reconstruction through Poruwathotage Sujith Nishantha Fernando the backhoe driver by Warnakulasuriya Nishantha Fernando, adding that the project was undertaken on the request by former chairman of Arachchikattuwa Pradeshiya Sabha Jagath Samantha.

    Both Minister Sanath Nishantha and his brother Jagath Samantha have been remanded and on bail for allegedly assaulting the Arachchikattuwa Divisional Secretary.[29]

    [29] Lanka News Web, Committee reveals Minister Sanath Nishantha’s brother is behind eco-damage at Anavilundawa wetlands (10 Sep 2020)

11. A news report from September 25 2020 followed up, noting:

    Former Chairman of the Arachchikattuwa Pradeshiya Sabha Jagath Samantha was granted bail yesterday by the Chilaw Magistrate’s Court.

    He was arrested when he surrendered to the court on Tuesday and remanded over the clearing of a land at the Anawilundawa Wetland Sanctuary.[30]

    [30] ‘State Minister’s brother granted bail’ September 25, 2020

12. More recently, media reported that police had arrested the former Chairman of the Arachchikattuwa Pradeshiya Sabha (PS) Jagath Samantha on charges of attacking the homes of Janatha Vimukthi Peramuna (JVP) and United National Party (UNP) members and causing damage:

    Mr Samantha is the brother of State Minister Sanath Nishantha and is currently a Sri Lanka Podujana Peramuna (SLPP) member of the Arachchikattuwa PS. He was arrested yesterday (21) while hiding out at a shrimp farm owned by him in Vairankattuwa. 

    The suspect had been wanted in connection with attacks on the houses of JVP and UNP activists on April 4. A group of men allegedly led by the suspect attacked the houses of several JVP activists, including the party's Chillaw organiser and the house of a former UNP local government member, causing severe damage. 

    He was arrested yesterday after being on the run for 19 days. Two others were arrested earlier in connection with the incident while four more are to be arrested, police added.

    The former PS Chairman is expected to be produced before the Chilaw Magistrate's Court today.[31]

    [31] >

    And in June 2022:

    Sri Lanka Podujana Peramuna (SLPP) Pradeshiya Sabha member Jagath Samantha (who is also who is a Local Government member of the ruling Sri Lanka Podujana Peramuna (SLPP), has been arrested for obstructing the duties of police officers at a filling station in Arachchikattuwa. Jagath Samantha had allegedly assaulted some individuals near the filling station and had also obstructed the duties of the Police.[32]

    [32] >

    Another report of this period stated that:

    MP Sanath Nishantha’s brother Jagath Samantha has been arrested. He has been arrested on charges of assaulting persons and obstructing the duties of Police officers at a filling station in Arachchikattuwa. A video had been widely circulated on social media showing Jagath Samantha assaulting a group of individuals near the filling station, leading to his arrest. The incident which had been caught on the CCTV camera of the fuel station had occurred on Friday, the 17th of June.[33]

    [33] Ruling party members run riot – The Morning – Sri Lanka News.

13. Providing more detail:

    The assaulted person had been admitted to hospital and in an interview with the media said that he was assaulted by Samantha claiming that he (the person) would not be sold fuel since he was a supporter of the United National Party (UNP). “I went to the fuel station after waiting for weeks to buy fuel. I was assaulted by Samantha, making various claims. I did not run or retaliate but he continued to assault me,” the person said.

    Meanwhile, another SLPP politician in the Ukuwela Local Government body was arrested along with three others after they had allegedly broken into a residence and engaged in a robbery.[34]

    [34] Ibid.

14. The Tribunal concludes from this country information that the local politics of the Puttalam area have been and continue to be troubled with violence, and that Jagath Samantha and his brother have come to notice repeatedly for their practice of violence and intimidation. On the evidence before it, the Tribunal considers it plausible and accepts the applicant’s claims that his father and [Relative A] as supporters of Jagath Samantha’s rival were the subject of intimidation by Jagath Samantha to undermine and deter opposition supporters.

    The role of the local CID

15. The Tribunal has considered the applicant’s claim that Jagath Samantha and Sanath Nishantha have relied on the organs of executive government to harm and intimidate their perceived political opponents, noting the applicant’s consistent claims that the CID were used by Jagath Samantha to harm and intimidate his father and [Relative A] using extortion and false accusations in retribution for their support for his rival. He claims that the CID will do anything if they are paid. In this respect, the Tribunal notes that the First Tribunal found the applicant’s claims regarding the reasons the CID were interested in the applicant’s father and [Relative A] and the applicant himself to be far-fetched and implausible.

16. The Tribunal has considered country information discussed with the applicant that corruption has long been rife in the Sri Lankan police and security authorities and accepts that the country information indicates the Sri Lankan police are vulnerable to political interference.[35] The annual reports of Transparency International Sri Lanka (TISL) have for many years reported high levels of corruption of police to achieve political purposes.  In 2020 Transparency International ranked Sri Lanka 94^th out of 180 countries on its Corruption Perception Index[36] and in 2017 TISL reported the following regarding the corruption of the public institutions in Sri Lanka:

    A near breakdown of law and order and the abject politicization of public institutions prevails. This has created enormous public anger against politicians and public servants who are perceived to be culpable. In such a context, the public continues to make demands that corrupt politicians should be brought to justice which may be quite unrealistic in the short term.[37]

    [35] DFAT Country Information report, Sri Lanka, 23 December 2021, [2.11–2.12].

    [36] Ibid.

    [37] ACA_SL_FINAL.pdf (tisrilanka.org), p.36.

17. The Tribunal considers the applicant’s claims are consistent with the independent country information above and considers it plausible that bad faith actors such as Jagath Samantha and Sanath Nishantha with both significant political influence and a confirmed record of unlawful and violence behaviour would be involved in the corruption and politicisation of the CID. The Tribunal accepts it is plausible that given Jagath’s influence in the Puttalam region, it is likely that he holds influence over senior police figures in this district.

18. The Tribunal also observes that the media reports above suggest that Jagath Samantha and Sanath Nishantha have continued to operate with violence and intimidation, apparently with impunity. The applicant has submitted that he believes that police are not inclined to constrain them but are instead comfortable putting on a performative arrest which never results in a sentence or penalty for Jagath or Sanath. In light of their history with the law and the country information before it, the Tribunal considers this assessment to be plausible. On this basis, the Tribunal is satisfied that the claims that in 2012 the CID arrested the applicant’s [Relative A] and held [him] on trumped up charges and that the applicant and his father had LTTE links because they had business in [District 1] are plausible. Considering all the evidence before it, the Tribunal is also satisfied that the CID also went to the applicant’s father’s house in search of him and demanded that he be produced. The Tribunal accepts the applicant’s consistent evidence over time, including his persuasive oral evidence at hearing, that the CID beat him and threatened him with death.

19. Having regard to the media reports above, the Tribunal is also satisfied that the targets of Jagath’s intimidatory conduct are varied, including workers, members and organisers, from a range of different political allegiance, but generally do not include higher level people, such as [Mr B]. On this basis, the Tribunal accepts that [Mr B[was not himself a target of this police conduct and accepts as palusible the applicant’s explanation that [Mr B] had a level of political protection from community support but that this did not extend to his team.

20. The Tribunal accepts the applicant departed Sri Lanka because he feared the CID after they went to his home and beat him, demanding to find his father. The Tribunal further accepts the applicant’s consistent evidence that his father left Puttalam to evade Jagath/CID’s action and, as far as the applicant knows, has since remained in [District 1] for his own protection. The Tribunal accepts that the applicant’s [Relative A] is now resident in Australia, having been granted protection.

    Imputed political opinion

21. The Tribunal has found above that in 2012 the applicant was the subject of violence and intimidation by the CID under the sponsorship of Jagath Samantha because of his family’s political support of and activities on behalf of political rival, [Mr B]. Based on the applicant’s evidence at hearing, the Tribunal accepts he has a strong and genuine subjective fear of return to Sri Lanka because he fears he will be harmed by Jagath Samantha or the CID acting on his behalf. He believes Jagath continues to be powerful and will seek to harm him but does not know how. In response to discussion about his beating at the hands of the CID the applicant stated that he is still fearful and ‘shivering’ from the beating he received in 2012, and the Tribunal accepts that he has been deeply affected by this incident. The Tribunal accepts the applicant believes the Sri Lankan authorities, especially the CID and police, have connections with Jagath Samantha and that they will harm him as the remaining male family member they could target.

22. The Tribunal now considers whether more than 10 years after the events affecting him in 2012 the applicant faces a real chance of serious harm or a real risk of significant harm, for reason of an imputed political profile in Puttalam District, on return to Sri Lanka now or in the foreseeable future.

23. In this consideration, the Tribunal notes that according to the applicant at hearing he has not himself had any political involvement in Sri Lanka or Australia. He told the Tribunal he had not been following the progress of Jagath and Sanath, and he did not know whether [Mr B] remained an active player in local politics, but he believed that Jagath continued to wield power in the area, and that he had the power to harm anybody at any time. Having regard to the news reports above, the Tribunal accepts that Jagath Samantha despite now only holding the position of vice-Chairman, continues to remain a figure of influence and concern in the Puttalam District. The Tribunal also accepts that Jagath’s brother, Sanath, remains a person of power, as a Member of the Sri Lankan Parliament representing the Puttalam District, despite serious complaints of intimidation against him.

24. In response to the Tribunal’s enquiry regarding why the applicant would attract the adverse interest of Jagath Samantha now or in the foreseeable future, the applicant commented that Jagath has an established background in targeting the family members of political rivals. In this he was referring to his own treatment by the CID, and also treatment meted out to his aunt. In respect of his aunt, the Tribunal has had regard to the extract from the Information Book of [named] Police Station dated [2013] provided by the applicant indicating that an attack on his aunt, his [Relative A]’s wife, had occurred.[38] The report states that the aunt had been beaten by four people, believed but without any certainty, to be supporters of Sanath Nishantha, at her home demanding her husband and threatening to kill her if he was not surrendered.

    [38] AAT 1932240 Doc Id 7803353.

25. Having regard to the findings of the FCA and in its own assessment, the Tribunal considers that these documents should be given some weight. The Tribunal considers that the report appears genuine as it does not appear to have been tailored to address the applicant’s or his [Relative A]’s specific claims which the Tribunal might expect a non-genuine document to do. Accepting the document as genuine, the Tribunal agrees with the submission that the events described in this document support a general finding that Sanath Nithantha’s people, and by extension Jagath Samantha’s people, were prepared to harm family members of the father and [Relative A] to achieve their aims, even almost one year after both men had disappeared from the area.

1. With regard to the applicant’s claims he would be the target of Jagath Samantha’s interest as a representative of his family because his [Relative A] and father are now out of reach to him, and his mother is secure as he believes she is living with his aunt, the applicant stated he will be of interest because in Sri Lanka, the target of retribution passes to the elder man in the family, in this case the applicant, in the absence of his father. In the post-hearing submission, the applicant’s representative provided contextual information regarding the socio-economic dynamics in Sri Lanka in support of this view:

   The basic social organization in Sri Lanka is the family. The Sri Lankan family has strong roots in kinship. The highly structured and authoritarian familial set-up includes the parents and children, and the bilateral extended family. Brothers and sisters form the sibling group. The autocratic leadership of the elder members requires submitting one‘s self to the decision of the family elders, and an almost one-way communication in the pecking order. This exemplifies respect for hierarchy by age. Major decisions must come from, or must have the approval of males… The nuclear family and the sibling group form the primary basis of co-operative action by sharing economic and social-psychological security as well as the conflicts and anxieties of family members.[39]

   [39] Gamage & Wickramasinghe, ‘Culture of socio institutions and behavioral manifestations in entrepreneurship development: a South-Asian case’, (Paper, 2012), University of Wollongong, Faculty of Business and Law, Interdisciplinary Journal of Contemporary Research in Business, 4 (7), 64–79, 68. 

2. The Tribunal accepts that Sri Lankan cultural norms provide that generally where there is an absence of an elder male figure, those responsibilities fall on the oldest male figure in the family. The Tribunal accepts that the imputation of family responsibility for grievances or disputes, including particular political profile, may fall onto other male family members. The Tribunal also acknowledges this research suggests that a family’s particular political profile is commonly regarded to be shared by the family unit, and more specifically, on the eldest present male figure of the family. Given that the applicant was beaten by the CID when they were searching for his father, the Tribunal accepts that he is imputed with family responsibility and his father’s political profile.

3. At hearing, the Tribunal sought to establish whether Jagath Samantha will initiate further intimidatory or vengeful actions against the applicant on his return, given neither he, nor his father or [Relative A] have been present in the Puttalam to engage in any political activity for over 10 years. In this respect, the Tribunal is concerned about the absence of evidence before it about the current circumstances for the applicant in Puttalam. The applicant states he cannot produce any evidence from any family members or any other source that the applicant’s family continue to be of adverse interest to Jagath Samantha for reason of their political opinion. Nor is there evidence that Jagath Samanth continues to regard [Mr B], or Tamil rivals for leadership in the UPFA/SLFP, as targets for intimidation.

100.   The applicant ardently maintained that Jagath Samantha is motivated to harm him because he has personally harmed his family in the past and will continue to hold hostility into the future because of past support for his rival and because they are Tamil. Taking into account Jagath Samantha’s history of violence outlined above, the Tribunal accepts that this violence may follow a rational pattern but may also occur opportunistically or reactively. The reports show that Jagath Samantha is willing to personally raid a police station, use family influence to seek an outcome, raid a council meeting with prison guards while on remand, assault people in public places and obstruct police in their duties. In the view of the Tribunal, the country information before it is strongly suggests that both Jagath Samantha and his brother Sanath Nishantha, and their supporters, are dangerous people who have frequently been involved in political violence and threats of violence even up to the present time. On this basis, the Tribunal accepts that Jagath Samantha has been a danger for people who have crossed him and that there is more than a remote possibility he may be again. The Tribunal is satisfied that the applicant’s fear of harm from Jagath Samantha is both plausible and consistent with the political culture of Puttalam District, Sri Lanka.

101.   The Tribunal notes that it is the responsibility of the applicant to provide sufficient evidence in support of the claim that they are a person in respect of whom Australia has protection obligations. However, as discussed above, if an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt. In this case, the Tribunal is satisfied that the applicant is unable to support his statements by contemporary documentary or other current evidence of his risk profile because he has been in Australia for a long period and for reason of his poor mental health as discussed above, he is not in touch with family who may be able to update him. The Tribunal also takes into account that the applicant’s evidence unavoidably has less currency after the passage of time occurring in his case, noting there has been a delay of three years since the applicant received a judgment on a decision of the RRT in 2016 from the FCA remitting the matter to the AAT for reconsideration. In these circumstances, accepting that the applicant’s account is credible and accepting that he and his family were the subject of harm at the behest of Jagath Samantha in the past for reason of their political opinion, the Tribunal is willing to give the applicant the benefit of the doubt.

102.   Considering all these matters, the Tribunal cannot discount the chance that the applicant will be harmed in the future and considers that the chance the applicant will be harmed is a real chance. The Tribunal further finds that the harm the applicant faces at the hands of Jagath or authorities acting on his behalf, a threat to his life or liberty, significant physical harassment and ill-treatment, amounts to serious harm. The Tribunal finds that the applicant has a real chance of serious harm due to his political opinion, now and in the reasonably foreseeable future.

State protection

103.   The Tribunal has considered the prospect of the applicant being afforded state protection. As the country information above indicates, corruption and politicisation of authorities continues.[40] The evidence before it also indicates that when the authorities have attempted to reign in the activities of Jagath Samantha, these efforts have done little to stop him from acting in a violent manner, including directly at the police and even when remanded. The information before the Tribunal indicates that Jagath Samantha is not concerned with any of the existing powers, the police, courts or media. The Tribunal considers in this situation, the state cannot provide the applicant with effective protection.

[40] DFAT Country Information report, Sri Lanka, 23 December 2021, [2.11–2.12].

Relocation

104.   The Tribunal has considered whether the applicant could relocate to another area of Sri Lanka where he does not face a real chance of serious harm, noting that Jagath Samantha’s influence is locally based and is not across the whole of Sri Lanka.

105.   The Tribunal has found above that the applicant departed Sri Lanka by boat illegally, as a passenger with no organisational role in the people smuggling venture. As discussed with the applicant at hearing, the Tribunal accepts that this represents an offence under the Sri Lankan Immigrants and Emigrants Act (1948) (the I&E Act) which makes it an offence to depart Sri Lanka other than via an approved port of departure, such as a seaport or airport, and/or without a valid passport.[41]

[41] DFAT Country Information report, Sri Lanka, 23 December 2021, [5.21–5.26].

106.   DFAT advises that on arrival in Colombo, returnees will be presented to Sri Lankan Immigration where they will be interviewed by the Chief Immigration Officer. Depending on the circumstances of their departure from Sri Lanka and their personal history, they may be interviewed by other agencies including CID, Sri Lankan State Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI). These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Those who have departed illegally will be referred to CID at the airport and charged accordingly. Once charged they are taken to the courts at Negombo where they are bailed and released. [42]

[42] DFAT Country Information report, Sri Lanka, 23 December 2021, [5.17–5.20, 5.26 and 5.27–5.32].

107.   Those charged are required to appear in court in the location where the matter was first heard, reportedly Negombo Courts, near the airport, which involves legal and transport costs. While the frequency of court appearances depends on the magistrate, DFAT understands that most individuals charged under the I&E Act appear in court every three to six months, regardless of their plea, for bail hearings. In addition to their own court hearings, those charged may be summonsed as witnesses in cases against the facilitators or organisers of people smuggling ventures. The cases of those charged with illegal departure may take years to resolve, requiring on-going court appearances (and illegal departees have no reasonable prospect of a defence). For many returnees, this means they are subject to the slow processes of the Sri Lankan legal system; some returnees told DFAT that it was difficult and stressful having to return periodically to Colombo for a further hearing in a case where they were uncertain of the outcome.

108.   Considering the applicant’s circumstances in light of the independent evidence above, the Tribunal assesses that the applicant will be interviewed by Sri Lankan immigration on arrival in Colombo, and identified as a person who departed Sri Lanka illegally, and he may then be interviewed by other agencies including the CID to explore his departure from Sri Lanka and check his identity. As found above, he will be found to have departed illegally but to have no outstanding criminal matters against him.  On the evidence before it, the Tribunal finds that at the airport, the applicant will be charged by the CID for illegal departure and taken to the court at Negombo, where he will be bailed and released. The Tribunal accepts that in these circumstances the applicant will be required to return to his residence in Puttalam for reporting purposes and likely condition of any bail or sentence applied, where Jagath Samantha and his supporters are influential and where the applicant has been harmed in the past. In these circumstances, the Tribunal does not consider that the applicant can relocate within Sri Lanka.   

109.   Having considered all these matters, the Tribunal finds that the applicant has a real chance of serious harm due to his political opinion, now and in the reasonably foreseeable future. The Tribunal finds that the applicant has a well-founded fear of persecution for this reason.

110.   Given this finding, it has been unnecessary to consider the other claims advanced or that arise on the material before it.

CONCLUSION

111. For the reasons given above, the Tribunal is 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

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

Amanda Paxton
Member