1934909 (Refugee)
[2024] AATA 3632
•15 July 2024
1934909 (Refugee) [2024] AATA 3632 (15 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Niroshan Ranaweera (MARN: 2318245)
CASE NUMBER: 1934909
COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Gregory Hanson
DATE:15 July 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 15 July 2024 at 9:06am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – imputed political opinion – member and village leader of party – verbal abuse and harassment – inaction by police – late claim of physical attack and injury – not involved in politics but others thought he was – family dispute over land and property inheritance, but no harm or fear of harm – country information – credibility – inconsistent claims and evidence – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 418(3), 441G(1), 494D(1)
Migration Regulations 1994 (Cth), Schedule 2CASES
Abebe v Commonwealth (1999) 197 CLR 510
CSO15 v MIBP (2018) 260 FCR 134
Guo Wei Rong v MIEA [1996] FCA 1263
MIAC v SZQRB (2013) 210 FCR 505
MIMIA v SGLB [2004] HCA 32
Sellamuthu v MIMA [1998] FCA 1423; [1999] FCA 247Any 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
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of the Democratic Socialist Republic of Sri Lanka (Sri Lanka), applied for the visa on 30 April 2015. On 28 November 2019 the delegate refused to grant the visa on the basis that, firstly, the applicant did not meet the refugee criteria in s 36(2)(a) of the Act because the delegate was not satisfied that there was a real chance that the applicant would be persecuted in Sri Lanka. Secondly, the delegate found the applicant did not meet the complementary protection criteria in s 36(2)(aa) because there was not a real risk of the applicant facing significant harm in Sri Lanka, as defined in s 36(2A) of the Act.
On 10 December 2019, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for merits review of the delegate’s decision.
The applicant was represented for the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
CLAIMS AND EVIDENCE
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (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.
Before the Department
The information provided to the Department in support of his claims to engage Australia’s protection obligations included the following:
a.His protection visa application (Form 866C and Form 866B) lodged with the Department on 30 April 2015.
b.A certified copy of a passport purporting to have been issued to the applicant by the Sri Lankan authorities [in] 2006.
c.An uncertified copy of a bio-data page of a passport purporting to have been issued to the applicant by the Sri Lankan authorities [in] 2019.
d.A certified copy of a document purporting to be the applicant’s birth certificate.
In his protection visa application form lodged with the Department on 30 April 2015, it is stated that the applicant did not receive any assistance in completing that form. In that protection visa application form the applicant relevantly claimed as follows:
a.In relation to why he left Sri Lanka, it is stated that he left the country to save his life because he was a strong party member of Janatha Vimukthi Peramuna and he was subject to political persecution. He stated that he was a village leader of that party, during the last elections he supported the ‘Swan symbol’, and that he worked hard to mobilise the people against Mahinda Rajapakse’s rule. And further, although the leader they supported became the president, after the election he could not live in his village because he was a victim of harassment and torture perpetrated by the defeated party.
b.In relation to what he thought would happen to him if he returned to that country, it is stated that he would not be left to live in peace. Members of his party were captured by the hostile groups, and Mahinda Rajapakse’s power was not diminished by his defeat at the election. It is stated that he would be subject to torture and severe harassment, and they will take revenge against him and his family.
c.In response to whether he experienced harm in Sri Lanka before his departure, it is stated that he left before he was kidnapped and killed but before he departed the country the verbal abuse and mental harassment he experienced was unbearable. The villagers who supported Mahinda Rajapakse's side and were mobilised by politicians harassed him and his family.
d.In relation to whether he sought help from the authorities in Sri Lanka in respect of that harm, it is stated the applicant made complaints at police stations but the police officers were not willing to record his statement.
e.In response to the question whether he believed he would be harmed or mistreated if he returned to Sri Lanka, it is stated that his enemies are waiting for him to return to take revenge against him. And further, there is a dangerous coup taking place in Sri Lanka for Mahinda Rajapakse to come to the power again and JVP is being crushed by every side. It is stated that, although the government is led by the UNP, JVP doesn't have any good rapport with them so JVP members are hunted by various parties. And If he returns to Sri Lanka he will be abducted and subject to torture and nobody will be able to find a trace of him.
f.In relation to whether the authorities can and will protect him if he returned, it is stated the authorities are governed by the government and the previous governments leaders. And for this reason, they will never be favourable to JVP members as the authorities in Sri Lanka want to get rid of JVP party members in anyway.
In August 2016, the applicant appointed Ms Madhu Wanakulasuriya (Ms Wanakulasuriya) of Warna Legal as his authorised recipient for s 494D(1) of the Act and representative for the purposes of his protection visa application.
It is recorded that the applicant attended a protection visa interview with a delegate on 18 November 2019.
On 25 November 2019, Ms Wanakulasuriya submitted the following additional material on the applicant’s behalf:
a.A document written in the Sinhalese language with English translation purporting to be a letter from a medical professional in Sri Lanka dated 20 November 2019, stating, among other things, the applicant was treated for a period of 21 days from 2 September 2013 for a "disorder of spinal” (2019 Doctor Letter).
b.A letter in the English language dated 22 November 2019 purporting to have been written by the applicant’s wife, [Ms B] and addressed to the Department, in which she provides information relating to threats of harm received by the applicant prior to his departure from Sri Lanka, and since (2019 Wife Letter).
Before the Tribunal
On 10 December 2019, the applicant applied to the Tribunal for merits review of the delegate’s decision. Attached to that review application were copies of the Department’s correspondence dated 28 November 2019 notifying him of the refusal of his application for a protection visa, and a copy of the delegate’s protection visa decision record of the same date. Ms Wanakulasuriya was appointed as the applicant’s authorised recipient for s 441G(1) of the Act and authorised representative for the purposes of the review.
On 15 May 2024, the Tribunal sent email correspondence to the applicant inviting them to complete and return within 7 days, a ‘Pre-hearing information form’ seeking further information about, among things, their protection claims. No response was received.
By correspondence dated 21 May 2024, the Tribunal advised the applicant that it was unable to make a favourable decision on the material before it and invited him to attend a hearing on 11 July 2024 at the Melbourne Registry. That correspondence enclosed a ‘Response to Hearing Invitation form’ to complete and return to the Tribunal. By email correspondence of the same date, Ms Wanakulasuriya advised the Tribunal that she no longer acted for the applicant.
On 22 May 2024, Mr Ranaweera Niroshan (Mr Niroshan) of AusAsia Migration Consultants was appointed as the applicant’s authorised recipient for s 441G(1) of the Act and authorised representative. By email correspondence of the same date, Mr Niroshan provided the Tribunal with a completed Response to Hearing Invitation form relevantly advising: both he and the applicant would be attending the hearing; the applicant did not intend to rely on any documents at the hearing; the applicant required an interpreter in the Sinhala and English languages; and the applicant requested the Tribunal take evidence from [Ms B] (the applicant’s wife) as his only witness.
On 28 June 2024, Mr Niroshan submitted a document in the Sinhala language with an English translation titled 'Extract from the Information Book of Gandara police Station' (2022 Police Record) purporting to indicate that [in] July 2022 at 17:50, [Ms B] reported to the police as follows:
a.She resides at a property located at [Location], with her [children], aged [Ages]. The house they live in was built by the applicant.
b.She was informed that day that the applicant’s father had passed away. She was also informed that the applicant’s elder sister and two younger sisters claim the applicant’s father granted them the land that their house is built on. She was only told this after the applicant’s father had passed away.
c.On that day, at around 5.00 pm, she was present at the house and witnessed “[m]y husband’s younger sister, [Ms C] and her daughter, [Ms D] my elder sister in law’s daughter, [Ms E] and my mother in law, [Ms F]” having entered their house without their permission and caused damage, and also that “[t]hey entered the house and shouted out that, I am having a man inside the house. I felt ashamed with this fake statement”.
d.The people responsible are residing in a house, in [Location 2].
e.She requests the police inquire into this complaint and take legal action against them.
On 11 July 2024, the applicant appeared before the Tribunal with the assistance of an interpreter in the Sinhala [Sinhalese) and English languages to give evidence and present arguments relating to the issues arising in relation to the decision under review. [Ms B] gave evidence as the applicant’s only witness.
At the commencement of the hearing the applicant advised the Tribunal that his representative, Mr Niroshan, was unable to attend the hearing due to medical reasons. In response to the Tribunal’s question whether he wished to request the hearing be adjourned to another day to allow his representative to appear with him, the applicant confirmed that he did not wish for the hearing to be adjourned and requested the hearing proceed without his representative present.
At the hearing, the applicant gave oral evidence as follows in relation to the circumstances in which his protection visa application was prepared and lodged with the Department on 30 April 2015:
a.Despite his protection visa application form recording that he did not access any assistance in completing the form, he was assisted by Ms Wanakulasuriya to complete and lodge that paperwork with the Department.
b.At the time his protection visa application form was completed he could read and write in English well.
c.Prior to Ms Wanakulasuriya lodging the protection visa application with the Department on his behalf, he reviewed the information contained in those forms.
d.When Ms Wanakulasuriya lodged his protection visa application she provided him with a copy of what was provided to the Department. Recently he reviewed the contents of what was provided to the Department.
e.To the best of his recollection, all the information provided in his protection visa application was true and correct, and he did not wish to make any changes to that information.
At the hearing the applicant gave evidence as follows in relation to his family and general background:
a.He is a citizen of Sri Lanka and not other country, as were both of his parents.
b.He identifies as being of Sinhalese ethnicity and Buddhist religion.
c.He was born in [City 1] in Southern Province, Sri Lanka, and other than when he lived in [City 2], Central Province, between 2002 and 2010, while he has resided in Sri Lanka he has only ever lived in [City 1].
d.He is married and has [children] aged [Ages]. His wife and [children] live in their family home in [City 1].
e.His wife is [an occupation 1] and has worked for [Employer] in [City 1] for 18 or 20 years.
f.His father passed away in 2023 and his mother resides with his sisters.
g.Between around 1994 and 2002 he resided in [Country] where he worked as [an occupation 2] in [work sector 1].
h.After he returned from [Country] in 2000 he started his own [work sector 1] business, and following that he worked with another party in [City 2], Central Province in the [work sector 2] business.
i.Between around 2009 and until he travelled to Australia in February 2015, he ran his own [work sector 2] business in [City 1]. For this business he rented a workshop in [City 1] town but lived at the family residence a distance away. Most of that business involved [job tasks].
In relation to his political affiliations, the applicant’s evidence included the following:
a.He is not currently a member of any political organisation in Australia or elsewhere.
b.He is not currently a member of any political related groups or entities in Australia or elsewhere, and whether online or otherwise.
c.He has never been a member of any political organisations, groups or entities.
d.He has never had any involvement with political matters.
e.His wife has never been involved in politics.
In relation to the property owned by him and his family in Sri Lanka, the applicant stated as follows:
a.He owns a plot of land of around 50 perches, and his wife owns a plot of land in her name of around 7 perches.
b.He inherited the 50 perches land from his parents and he used this land as collateral to finance his business. He also renovated the property on that land himself and that is where his wife and [children] reside.
c.After his father passed away in 2023, his sisters have claimed they own his land and property, and this relates to a problem with his ownership of that land not having been properly recorded in writing.
In relation to why he left Sri Lanka in 2015, the applicant’s evidence included as follows:
a.Around 18 months before he travelled to Australia a group of people came to his workshop in [City 1] and they asked him if he supported the Janatha Vimukthi Peramuna (JVP) political party. They demanded money from him and then physically attacked him. He was knocked unconscious.
b.Those who attacked him stole money from the shop but he is not able to confirm how much money was taken.
c.In that attack he suffered a serious injury to his pelvic-hip joint that required medical treatment. The ligaments where the leg bone attaches to the pelvis were damaged in that attack and it caused him a lot of pain afterwards in that joint. He was admitted for in-patient treatment for a period and when he was discharged he accessed other medical treatment for a further period of 4 to 5 months. He did not suffer any other injuries in that attack.
d.For the 18 months between when he was attacked and when he travelled to Australia he lived in hiding. He stayed at his workshop in [City 1] city and didn’t go out and he also hid in the bushland that was behind his home.
e.He has no idea why those people came to his workshop and attacked him but he assumes it was for political reasons associated with the JVP. He does not know which of his customers are members of political parties or have political acquaintances.
f.After the attack he received phone calls from the same people he thinks attacked him, but he did not answer those calls.
The applicant’s wife, [Ms B], gave oral evidence by telephone from Sri Lanka, including as follows:
a.Prior to him departing Sri Lanka the applicant was not involved in politics but others thought that he was connected to the JVP. He offered his business services to anyone who came to his shop and for this reason many thought he was involved in politics.
b.Before he departed Sri Lanka he was assaulted at his workshop and he suffered injuries that required lengthy medical treatment. After the attack the applicant complained of back pain and he was required to take medication and access treatment for a length period.
c.She does not know who assaulted him as she was at their home at the time but the people who assaulted him demanded that he not be involved in politics.
d.The applicant did not report this to the police because there was a threat to his life and this would get escalated further if he did.
e.In 2015 or 2016 they were coming after her. There was also a request for to attend the police station relating to a financial complaint against the review applicant but later she discovered that this was a bogus complaint.
f.In 2015 she was home with her [children] and she heard people screaming at the front of her house but she doesn’t know who they were.
g.In the years following she received anonymous phone calls from people threatening they would kill her children. She did not report these threats she received to the police because she had a government job and she thought that if she did report it to the police this would escalate it further.
h.Sometime later the applicant’s family members became a real nuisance to her as the applicant’s sisters started avoiding them and they would no longer speak with them. Until 2019 the applicant’s mother and father had been living with her in her and the applicant’s family home that the applicant had inherited but which he had renovated himself, but then the applicant’s parents moved to live with the applicant’s sisters in their house. Following this, these family members of the applicant distanced themselves from her.
i.The applicant had been sending money to his family members to support them financially but in 2023 his father passed away. When the applicant’s father passed away, she was told that she would be assaulted by her sister-in-law if she attended the funeral. Despite this, she still attended that funeral.
j.Two weeks after the applicant’s father’s funeral the applicant’s family members came to her home and informed her that the house did not belong to her. On that occasion they removed a door/gate from the home and asked her to leave. She reported this to the police and the police advised her that as it is a private inheritance issue, she should seek a legal solution to resolve this.
k.A couple of weeks ago the sisters came and banged on her front door and she was afraid to open the door. The applicant’s sister’s son is using other people to insult her as they walk through the land, and they have also been insulted by others for this reason.
l.Her husband has never been involved in politics but those who previously harassed him in Sri Lanka thought he had been. She is worried that if the applicant returns maybe he could be harassed again because he would be again imputed to be involved in politics.
m.She fears the applicant could be harmed by those who harassed him previously in Sri Lanka and also by his own family members including his sisters.
In relation to his fears of returning to Sri Lanka the applicant’s evidence included as follows:
a.A few months after he departed Sri Lanka the people who attacked him searched for him and threatened his wife. He believes that his wife did not report this to the police because she worked for the government. Another reason to explain why she did not might be because she had [children] and was on her own and she didn’t communicate with his sisters there.
b.There was an assassination that took place in Sri Lanka 3 or 4 days prior to the hearing, and that demonstrates that the killing of a person can be a simple thing there. That assassination was not I any way related to him or his family or his situation.
c.He continues to fear being harmed by those who attacked him in his workshop in 2013. He does not know why they have kept searching for him for such a long time but maybe they are angry that he left the country.
d.Other than those who attacked him in his workshop in 2013, he does not fear harm from any other persons.
e.He does not fear being harmed in relation to the claim by his family members against his property in Sri Lanka. He has no issue with his family members and he can sort this issue out himself if he returned to Sri Lanka.
COUNTRY INFORMATION
Country overview
Sri Lanka (formerly Ceylon) achieved independence from the United Kingdom in 1948.[1] DFAT reports that Tamils, the largest ethnic minority, received preferential treatment during British rule but following independence, successive governments promulgated measures promoting the primacy of the majority Sinhalese community.[2]
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report – Sri Lanka, 2 May 2024 (DFAT 2024 Report), at [2.1].
[2] Ibid.
DFAT states Sinhalese nationalism - including episodes of anti-Tamil riots - and a sense of second-class status gave rise to a Tamil separatist movement, which sought to carve out an independent state ('Tamil Eelam') in the Tamil-majority north-east of Sri Lanka.[3] And several militant groups emerged to advance the cause of Tamil statehood, the most prominent being the Liberation Tigers of Tamil Eelam (LTTE) which formed in 1976 and launched a guerrilla war in 1983.[4] A 2002 ceasefire reduced the intensity of fighting between state forces and the LTTE; however, failed to yield a political settlement and collapsed in 2005.[5] State forces re-took eastern Sri Lanka in July 2007 and, in January 2008, launched a major offensive to capture the remaining LTTE-controlled territory in the north.[6] This culminated in the elimination of the LTTE's senior ranks, including its leader, Velupillai Prabhakaran, and the LTTE’s surrender in May 2009.[7]
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] Ibid.
DFAT reports that Maithripala Sirisena defeated Mahinda Rajapaksa in a presidential election in January 2015. And in November 2019, Gotabaya Rajapaksa - Secretary of the Ministry of Defence during the defeat of the LTTE and younger brother of Mahinda - was elected president.[8] DFAT records that Gotabaya promised to strengthen national security following terrorist attacks by local Muslim extremists in April 2019, enact tax cuts to stimulate the economy, and strengthen the unitary state.[9] DFAT also reports that fe also appointed three of his brothers to ministerial positions, including Mahinda as prime minister. DFAT advises that the return of the Rajapaksas - considered heroes by many Sinhalese for overseeing the LTTE's defeat - saw greater centralisation of power in the executive branch, active efforts to undermine the reconciliation process and loose fiscal policy.[10]
[8] DFAT 2024 Report, at [2.3].
[9] Ibid.
[10] Ibid.
DFAT advises that in 2022, Sri Lanka experienced the worst economic crisis in its history, resulting in shortages of essential items, lengthy blackouts and hyperinflation, and, with it, major social and political unrest.[11] And the Rajapaksas' perceived economic mismanagement triggered mass protests, known as the Aragalaya ('struggle'), and Mahinda resigned in May 2022 and was replaced by five-time former Prime Minister Ranil Wickremesinghe. In the same month, parliament elected Wickremesinghe president with a mandate to restore order and stabilise the economy.[12] DFAT reports that, upon election, Wickremesinghe acknowledged Sri Lanka's ethnic and religious diversity, and the importance of finding solutions to the issues facing the Tamil community, including with respect to land and economic development.[13] DFAT assesses that these efforts were ongoing, although progress was limited, as at the time of its publication of its most recent report in May 2024.[14]
[11] DFAT 2024 Report, at [2.4].
[12] Ibid.
[13] Ibid.
[14] Ibid.
Political framework
DFAT reports that Sri Lanka is a multi-party democracy with a mixed parliamentary and presidential form of government.[15] The President is directly elected for a five-year term (two terms maximum) and is head of state, head of government and commander-in-chief of the armed forces.[16] The Prime Minister is appointed by the president; they must be a member of parliament (MP).[17] Parliament is unicameral, comprising 225 members; 196 are directly elected. MPs serve five-year terms.[18] The next presidential and parliamentary elections are due no later than 2024 and 2025, respectively.[19]
[15] DFAT 2024 Report, at [2.52].
[16] Ibid.
[17] Ibid.
[18] Ibid.
[19] Ibid.
DFAT reports that in October 2022, Parliament adopted the 21st amendment to the constitution, designed to reduce presidential powers - a key demand of the Aragalaya movement.[20] The 21st amendment reintroduced most checks on presidential power abolished by the 20th amendment (adopted by parliament in October 2020).[21] Most significantly, the 21st amendment restored the Constitutional Council, which recommends to the president - and must approve the president's appointments to - superior courts and independent bodies such as the Election Commission, National Police Commission, Human Rights Commission and the Commission to Investigate Allegations of Bribery or Corruption (under the 20th amendment, these appointments were made at the president's discretion).[22] The 10-member Constitutional Council is chaired by the speaker of parliament; other members include the prime minister, the leader of the opposition, MPs from the ruling, opposition and smaller parties, and three non-political representatives from civil society chosen jointly by the prime minister and opposition leader.[23]
[20] DFAT 2024 Report, at [2.53].
[21] Ibid.
[22] Ibid.
[23] Ibid.
DFAT advises that, administratively, Sri Lanka is divided into nine provinces (Central; Eastern; North Central; Northern; North Western; Sabaragamuwa; Southern; Uva; Western) and 25 districts.[24] And each province has a Provincial Council, comprising directly elected members and led by a chief minister for five-year terms, as well as a governor appointed by the president to represent the central government.[25] Provincial Council elections were last held in 2014 and have been repeatedly delayed since (Provincial Councils have been defunct since their terms expired in 2018).[26] Districts are administered by a District Secretariat headed by a District Secretary appointed by the central government, and Districts, in turn, are divided into sub-units administered by a Divisional Secretariat (there are currently 331 divisional secretariats in Sri Lanka).[27] DFAT reports that grama niladhari (village-level government offices) are sub-units of divisional secretariats, and the first point of contact with the state for most Sri Lankans (there are over 14,000 grama niladhari across the country).[28]
[24] DFAT 2024 Report, at [2.54].
[25] Ibid.
[26] Ibid.
[27] Ibid.
[28] Ibid.
DFAT reports that local elections (to elect members of municipal, divisional and urban councils) were last held in 2018 and returned a majority for the Rajapaksa-led Sri Lanka Podujana Peramuna (SLPP, or 'Sri Lanka People's Front').[29] Local council members serve four-year terms and local elections, due in March 2023 after being legally extended from March 2022, were postponed indefinitely by the Wickremesinghe Government, citing a lack of funds.[30] DFAT advises that a new date had not been confirmed as at the time of its publication of its most recent report in May 2024.[31]
[29] DFAT 2024 Report, at [2.55].
[30] Ibid.
[31] Ibid.
The United States Department of State (USDOS) reported that the most recent national elections, held in 2020, were reported to be fair and free of abuses and irregularities.[32]
[32] United States Department of State, 2023 Country Reports on Human Rights Practices - Sri Lanka', 22 April 2024, at p37, 20240423140425.
DFAT assesses that elections in Sri Lanka are generally free and fair, with peaceful transfers of power, although The Economist Intelligence Unit characterises Sri Lanka as a flawed democracy, ranking it 70 out of 167 countries in its 2023 democracy index.[33]
[33] DFAT 2024 Report, at [2.56].
Active political parties
DFAT advises that the Rajapaksa-led SLPP is the largest party in the current parliament, with 145 seats following the 2020 election (there have been some defections since), and it includes 13 seats held by members of the Sri Lanka Freedom Party (SLFP), historically one of Sri Lanka’s dominant political parties, which ran under the SLPP banner at the 2020 election.[34] DFAT reports that the Samagi Jana Balawegaya (SJB, or United People’s Power) is the largest opposition party, with 54 seats (its leader, Sajith Premadasa, formally leads the opposition in parliament), and Ilankai Tamil Arasu Kachchi (ITAK) is the third largest party in parliament, with six seats, followed by Jathika Jana Balawegaya (also known as National People’s Power, NPP) with three seats.[35]
[34] DFAT 2024 Report, at [3.58].
[35] Ibid.
DFAT assesses that the NPP, a coalition of socialist parties founded in 2015 and led by Anura Kumara Dissanayake of Janatha Vimukthi Peramuna (JVP, or People’s Liberation Front), was projected to make significant gains at local elections in March 2023 (since postponed).[36] The JVP, in its previous guise as a Marxist militant organisation, waged an armed insurrection in southern Sri Lanka in the 1970s and 1980s.[37]
[36] Ibid.
[37] Ibid.
DFAT reports that ITAK, which sits in opposition to the government, is the single largest party representing the Tamil community and the chief constituent party of the Tamil National Alliance (TNA), and the TNA is the largest and most moderate political grouping representing Tamil interests.[38] Its other constituent parties – the Tamil Eelam Liberation Organization (TELO), the People’s Liberation Organisation of Tamil Eelam (PLOTE) and the Eelam People’s Revolutionary Liberation Front (EPRLF) – hold three, one and zero seats in the current parliament, respectively.[39] DFAT reports that TELO, PLOTE and the EPRLF were originally formed as militant groups and fought for Tamil separatism, and that self-rule through devolution of political authority within a unitary state, including through full implementation of the 13th amendment; accountability for alleged war-era crimes; return of Tamil lands; and economic development for Tamil regions are core priorities for the TNA.[40] DFAT advises that a rival alliance, the Tamil National People’s Front (TNPF), advocates for federalisation; its main constituent party is the All Ceylon Tamil Congress (Ahila Ilankai Thamil Congress, or AITC), which broke away from the TNA in 2010 and holds two seats in the current parliament.[41] The TNPF’s leader, G.G. Ponnambalam, was arrested in June 2023 for reportedly obstructing police duties, following an altercation with two CID officers at a public meeting of the TNPF in Jaffna (two TNPF activists were also arrested). According to local media reports, the altercation started after the officers, who were plain clothed, refused to produce identification. Local media reported Ponnambalam said he was assaulted and had a gun pointed at him, and that police reported Ponnambalam intimidated and sought to assault the officers. Ponnambalam was released on bail.
[38] DFAT 2024 Report, at [3.59].
[39] Ibid.
[40] Ibid.
[41] Ibid.
DFAT advises that also representing Tamil interests in the current parliament and, like the AITC, sitting outside of the TNA umbrella are the pro-government Eelam People’s Democratic Party (EPDP) (two seats and one cabinet member); Thamil Makkal Viduthalai Pulikal (TMVP, formerly the Karuna Group) (one seat); and Thamil Makkal Thesiya Kuttani (Tamil People’s National Alliance) (one seat).[42]
[42] DFAT 2024 Report, at [3.60].
DFAT reports that the United National Party (UNP), one of Sri Lanka’s largest political parties historically alongside the SLFP, holds a single seat in the current parliament.[43] The UNP has governed Sri Lanka for much of its history, including at independence; it fractured in 2020, with many of its members, including Premadasa, leaving to form the SJB. President Wickremesinghe leads the UNP.
[43] DFAT 2024 Report, at [3.61].
DFAT advises that also represented in the current parliament, albeit holding single seats, are National Congress; the Our Power of People Party; the Sri Lanka Muslim Congress (SLMC); the All Ceylon Makkal Congress (ACMC); and the Muslim National Alliance (MNA). The SLMC, ACMC and MNA represent the interests of the Muslim community.[44]
[44] DFAT 2024 Report, at [3.62].
DFAT assesses that, while they no longer lead government, the Rajapaksas continue to wield political influence.[45] Their party (the SLPP) retains a majority in parliament, and President Wickremesinghe was appointed on the basis of the SLPP’s support.[46] Mahinda, his son Namal Rajapaksa and older brother Chamal Rajapaksa remain MPs (Chamal is a former speaker of parliament and, like Namal, was a minister during Gotabaya’s Presidency).[47] Gotabaya returned to Sri Lanka in September 2022, although is no longer formally involved in politics but most current cabinet members are holdovers from the Gotabaya Ministry.[48] In November 2023, the Supreme Court ruled that Gotabaya and Mahinda Rajapaksa, among others, were responsible for Sri Lanka’s economic collapse through their ’actions, omissions and conduct.’, but this verdict carried no penalty other than to pay claimants’ legal fees.[49]
[45] DFAT 2024 Report, at [3.63].
[46] Ibid.
[47] Ibid.
[48] Ibid.
[49] Ibid.
DFAT reports that its in-country sources advised it that people affiliated with established political parties faced a low risk of official or societal harassment.[50] DFAT assesses that politicians are well-connected and can better access state protection than the average person, and may also have the means for private protection services.[51]
[50] DFAT 2024 Report, at [3.64].
[51] Ibid.
DFAT reports that no laws or policies discriminate on the basis of political opinion, and DFAT did not find evidence of systemic political discrimination against any particular group.[52] DFAT assesses that political parties, including opposition parties, are able to operate freely and contest elections.[53] Notwithstanding the targeted attacks against politicians associated with the ruling party in May 2022, DFAT assesses that both high and low ranking politicians and members of political parties face a low risk of violence.[54] DFAT assesses that Tamil parties that espouse more radical views than moderate parties are more likely to have their activities monitored, although can generally operate freely.[55]
[52] DFAT 2024 Report, at [3.65].
[53] Ibid.
[54] Ibid.
[55] Ibid.
Political opinion
DFAT reports the Constitution provides for free and equal elections by secret ballot based on universal suffrage.[56] And that Sri Lanka has held regular democratic elections since independence, and elections have generally been considered free and fair, including recent presidential and parliamentary elections.[57] DFAT advises there are no legal restrictions preventing ethnic minorities from participating in the political process; parties representing minority interests are active and former Tamil militants serve as MPs, and the Constitution prohibits political parties from promoting secession.[58]
[56] DFAT 2024 Report, at [3.53].
[57] Ibid.
[58] Ibid.
DFAT assesses that Sri Lanka has a robust and diverse political landscape, and as at May 2024, 84 political parties were registered with the Election Commission, representing a broad range of ethnic, religious and ideological interests.[59] Of these, 15 were represented in the current parliament, five of which represented the Tamil community (for a total of 16 seats) and three represented the Muslim community (total of three seats). There were two Tamils and one Muslim in the Wickremesinghe Ministry at the time of publication. Political parties, irrespective of their affiliations or ideology, can operate freely and contest elections, and can generally do so without the risk of harassment or violence. Registered political parties are governed by the same legal framework. DFAT is not aware of Sinhalese, Tamil, Muslim or other parties facing differences in treatment.
[59] DFAT 2024 Report, at [3.54].
DFAT assesses that while violence against politicians can occur, it is not common.[60] On 9 May 2022, Amarakeerthi Athukorala, an MP from the ruling SLPP, died during clashes between supporters of then-President Gotabaya Rajapaksa and Aragalaya protesters (Athukorala had earlier shot two people, killing one, after being surrounded by a mob in Gampaha District, Western Province).[61] The clashes were triggered by an attack by Rajapaksa supporters on a peaceful anti-government protest site in Colombo, and in retaliation, Aragalaya protesters targeted politicians from the SLPP in Colombo and elsewhere. According to official figures, the properties of 106 MPs, including houses, offices and vehicles, were destroyed or damaged, and eight people died.[62] Destruction or damage of 244 properties belonging to members of political parties, provincial and urban councillors, and former ministers were separately reported.[63] According to the government, more than 3,300 people were arrested in relation to the violence.[64] DFAT also reports that in July 2022, protesters burned down the private residence of then-Prime Minister Wickremesinghe, and in February 2023, police deployed tear gas and water cannons during a protest against the postponement of local elections; Nimal Amarasiri, a member of the opposition Jathika Jana Balawegaya (National People’s Power, or NPP) died of injuries related to tear gas inhalation.[65]
[60] DFAT 2024 Report, at [3.55].
[61] Ibid.
[62] Ibid.
[63] Ibid.
[64] Ibid.
[65] Ibid.
DFAT reports that activists belonging to Tamil opposition parties who advocate for positions considered ultra-nationalist and/or who participate in war-related protests (e.g. protests relating to missing persons or land returns) are most likely to be monitored.[66] And DFAT’s in-country political sources informed it that, while discrete monitoring of some parties may occur, particularly those that were outspoken against the government and/or military, members of political parties faced a low risk of official harassment or violence.[67] In-country political sources also told DFAT they had not experienced harassment or violence as a result of their political activities.[68]
[66] DFAT 2024 Report, at [3.56].
[67] Ibid.
[68] Ibid.
DFAT advises that its in-country sources reported that people involved in trade unions and leftist political movements (which have been active in anti-government protests) were attracting growing state attention.[69]
[69] DFAT 2024 Report, at [3.57].
Fraudulent documents
DFAT reports that most official records in Sri Lanka are kept in a centralised location in hard-copy format and government departments lack computerised information databases.[70]
[70] DFAT 2024 Report, at [5.73].
DFAT advises that genuine identity documents have been obtained by submitting fraudulent supporting documents, including birth certificates and National Identity Cards (NICs).[71] And that counterfeit documents are the primary cause of fraud in the issue of NICs, passports and driver's licences.[72] DFAT reports that fake passports can be obtained in Sri Lanka, and that people seeking fake passports include those on 'stop' and 'watch' lists, those wishing to falsify their age to obtain employment, or those wishing to return to a country from which they have previously been deported.[73]
[71] DFAT 2024 Report, at [5.74].
[72] Ibid.
[73] Ibid.
DFAT assesses that attempts to use fraudulent documents are common, including for emigration purposes.[74] DFAT is aware of fraudulent sponsor and employment letters being presented by visa applicants and observes that fraudulently obtained bank statements and land title deeds have also been presented as evidence of an individual's financial situation.[75] DFAT advises that Asylum destination countries have reported receiving fraudulent documentation from asylum applicants, including anecdotal reports of a photography studio that took photos of individuals in old LTTE uniforms for use in asylum seeker applications.[76]
[74] DFAT 2024 Report, at [5.75].
[75] Ibid.
[76] Ibid.
DFAT assesses that document fraud is common in Sri Lanka, and there is capacity for fraud in the process for reissuing lost documents.[77]
[77] DFAT 2024 Report, at [5.76].
State protection
DFAT reports that Sri Lanka has no laws or policies that hinder access to state protection on the basis of religion or ethnicity, and all citizens have access to avenues of redress through the police, judiciary and the Human Rights Commission of Sri Lanka (HRCSL).[78] DFAT advises that, in practice, these avenues may be limited by linguistic barriers and a lack of resources, and that some ethnic minorities in the north-east lack confidence in the police and may therefore be less likely to seek redress through them.[79]
[78] DFAT 2024 Report, at [5.1].
[79] Ibid.
DFAT reports that the Sri Lankan military is credibly implicated in serious human rights violations during the civil war, possibly amounting to war crimes and crimes against humanity; there has been little accountability to date.[80]
[80] Ibid.
DFAT also advises that the police force is under-resourced and police corruption is common according to in-country sources, while the judiciary can be slow, particularly in criminal cases.[81] DFAT reports that the independence and effectiveness of the HRCSL was called into questioned during the presidency of Gotabaya Rajapaksa, although it is considered to have re-asserted some independence since the change in government and appointment of new commissioners.[82]
Police
[81] Ibid.
[82] Ibid.
DFAT reports that Sri Lanka Police has approximately 90,000 members, plus an additional 11,000-strong Special Task Force.[83] The latter is responsible for counter-terrorism and counter-insurgency operations, in coordination with the military.[84] DFAT advises that women account for a growing proportion of the police force, possibly up to 10 to 15 per cent according to in-country sources, with ongoing efforts to recruit more.[85] Some women serve in senior positions, including at the rank of Deputy Inspector General.[86] DFAT’s in-country sources reported to it that the police were under-resourced, more so following the economic crisis in 2022, and that most officers were not trained in modern police procedures or had access to equipment to undertake advanced scientific methods of investigation.[87]
[83] DFAT 2024 Report, at [5.7].
[84] Ibid.
[85] Ibid.
[86] Ibid.
[87] Ibid.
DFAT advises that, like the military, most members of the police, including in Tamil-populated areas, are Sinhalese. Police recruitment is done at the national level, and officers rotate throughout the country during their careers.[88] And, while most police officers in the north-east do not speak Tamil, there are ongoing efforts to recruit Tamil speakers, albeit with limited success.[89] DFAT reports that police basic training is conducted in Sinhala, limiting accessibility to most Tamil speakers, and social stigma is also reportedly attached to Tamils working as police officers.[90] DFAT advises that its in-country sources estimated 20 per cent of police officers in the north were Tamil.[91] Those sources also told DFAT that growing numbers of Tamil youth in the north were keen to join the police but were discouraged by their families and communities due to lingering distrust.[92] Caste can be another consideration, as Tamil police officers reportedly come from lower castes.
[88] DFAT 2024 Report, at [5.8].
[89] Ibid.
[90] Ibid.
[91] Ibid.
[92] Ibid.
DFAT reports that, according to its in-country sources, individual police officers routinely solicited bribes (otherwise referred to as ‘commissions’) to supplement their incomes.[93] And it is reportedly common for people to pay bribes to avoid fines for traffic misdemeanours, and bribes are also reportedly solicited at security checkpoints in the north-east.[94] DFAT advises that its in-country sources reported that people were known to pay the police to close criminal cases against them, and criminals in the north, including those involved in the drug trade, received protection from the police, which deterred people from reporting criminal activity or seeking police protection.[95] According to some in-country sources, the police and navy were involved in the drug trade in the north-east but DFAT is unable to verify this claim.[96]
[93] DFAT 2024 Report, at [5.9].
[94] Ibid.
[95] Ibid.
[96] Ibid.
USDOS reported that in 2023 there were several reports that the government or its agents committed arbitrary or unlawful killings, including extrajudicial killings, during the year.[97] It also reported there were multiple deaths in police custody, with many incidents following a similar pattern, with many deaths occurred when police took suspects to the alleged crime scene as part of an investigation or claimed that suspects attacked them during interrogation or tried to escape.[98]
[97] United States Department of State, 2023 Country Reports on Human Rights Practices - Sri Lanka', 22 April 2024, at p2, 20240423140425.
[98] Ibid.
USDOS also reported in respect of events in 2023 that human rights and civil society organizations alleged that torture and excessive use of force by police, particularly to extract confessions, remained endemic.[99] The HRCSL, for example, noted that many reports of torture referred to police allegedly “roughing up” suspects to extract a confession or otherwise elicit evidence.[100] And, as in previous years, arrestees reported torture and mistreatment, forced confessions, and denial of basic rights, such as access to lawyers or family members.[101]
[99] Ibid, at p11.
[100] Ibid.
[101] Ibid.
UISDOS also reports that impunity remained a significant problem in 2023 characterized by a lack of accountability for abuses, particularly regarding government officials, military, paramilitary, police, and other security-sector officials.[102]
[102] Ibid, at 12.
DFAT assesses that avenues exist for the public to submit complaints about alleged police corruption or other misconduct, including directly to: officers-in-charge at local stations; the National Police Commission (NPC, established in 2015 with a mandate to protect the public from unlawful action and/or inaction by the police); Commission to Investigate Allegations of Bribery or Corruption (CIABOC); and the HRCSL.[103] And that complaints can also be lodged online, through the Sri Lanka Police website.[104] DFAT advises that the NPC received over 9,200 complaints against the police, including for alleged unlawful arrest, false charges, assault, torture and abuse of power, between 2017 and 2022.[105] DFAT reports that there has been a notable increase in police officers being arrested for corruption and abuse of power.[106]
[103] DFAT 2024 Report, at [5.10].
[104] Ibid.
[105] Ibid.
[106] Ibid.
DFAT records that, according to its in-country sources, the police were reluctant to investigate complaints involving state actors, including the military.[107] Its in-country sources reported the police force was subject to political pressure and interference and, where this was resisted, officers had, at times, been reassigned to new roles.[108] And that high-profile officers who investigated alleged crimes involving the military, police or Rajapaksa family have in the past been harassed or forced to flee the country.[109]
[107] DFAT 2024 Report, at [5.11].
[108] Ibid.
[109] Ibid.
DFAT reports that people who face threats as a result of personal disputes, or who are targeted by criminal groups for extortion, can seek protection from the police and pursue remedies through the legal system if a law has been broken.[110] And in practice, there may be a reluctance to do so should the aggressor hold a position of influence and have state connections, due to fears of retribution.[111]
[110] DFAT 2024 Report, at [5.12].
[111] Ibid.
DFAT advises that, notwithstanding resource challenges, the Sri Lankan police force is capable of maintaining law and order and providing protection to its citizens; however, language barriers, historical mistrust and perceptions of the police favouring the Sinhalese community can be impediments to access for ethnic minorities.[112] And that the capacity of the police to respond in a non-discriminatory and gender- and trauma-sensitive way to reports of GBV and acts of societal violence toward women and members of the LGBTQIA+ community is low but increasing, including through regular investigative and interviewing training from foreign law enforcement.[113] DFAT adds that, nevertheless, resourcing remains an ongoing challenge and corruption can occur by individual, usually low-ranking officers, but that efforts are being made to eradicate corruption as part of the current government’s broader anti-corruption drive.[114]
Legal system
[112] DFAT 2024 Report, at [5.13].
[113] Ibid.
[114] Ibid.
DFAT reports that The Supreme Court is the highest judicial authority and final appellate court in Sri Lanka, and that The Court of Appeal is the second highest authority, followed by provincial-level High Courts and lower courts, including magistrates’ courts for criminal cases and district courts for civil cases.[115] DFAT assesses that Tamils and other ethnic minorities are under-represented as judges and other court officers.[116]
[115] DFAT 2024 Report, at [5.14].
[116] Ibid.
DFAT assesses that, while the judiciary has a record of independence, particularly at higher levels, its in-country sources told it that corruption could theoretically occur, particularly at lower court levels, but said judges generally were honest, fair and impartial.[117]
[117] Ibid.
DFAT advises that the legal system allows victims of harm or mistreatment to seek protection and redress from the state, including through fundamental rights petitions lodged directly with the Supreme Court.[118] And while people are free to submit fundamental rights petitions, the need to travel to Colombo to attend that court can make it impractical and financially prohibitive for those in more remote areas.[119]
[118] DFAT 2024 Report, at [5.15].
[119] Ibid.
DFAT reports that courts are located countrywide, and that the Criminal Procedure Code stipulates that every person accused before a criminal court and every aggrieved person has the right to be represented in court by a lawyer.[120] DFAT records that court proceedings in the north-east are generally conducted in Tamil, and proceedings elsewhere, including in the Colombo-based Supreme Court and Court of Appeal, are conducted in Sinhalese or English.[121] DFAT reports that Tamils are constitutionally entitled to interpretation services where their case cannot be heard in the Tamil language, but in practice, a shortage of interpreters means these services are not always available or of required quality.[122] DFAT is aware of instances of individual court officials accepting documents only in Sinhala or English and/or refusing interpretation services in cases involving Tamil parties, although these tend to be isolated incidents.[123]
[120] DFAT 2024 Report, at [5.16].
[121] Ibid.
[122] Ibid.
[123] Ibid.
In-country sources have informed DFAT that the legal system is highly inefficient, and by some estimates, Sri Lankan criminal courts have a backlog of 40,000 cases; in extreme circumstances, cases can take up to 15 years to reach trial (as of 31 December 2022, 65 per cent of prisoners were awaiting trial).[124] Criminal trials can be long and slow, and delays are common – the average length of time to conclude a trial is 10 years.[125] The government has committed to recruiting more judicial officers and establishing new court houses as part of broader justice reform efforts to speed up the justice administration process.[126]
[124] DFAT 2024 Report, at [5.17].
[125] Ibid.
[126] Ibid.
DFAT advises that the right to legal aid is enshrined in law by the ICCPR Act 2007, and that the state-funded Legal Aid Commission of Sri Lanka provides legal aid to low-income groups.[127] And while the government provides legal representation for indigent defendants in criminal cases before the High Court and Court of Appeal, this is not available for cases before lower courts. NGOs, including Women In Need, also provide some legal aid services.[128] In-country sources familiar with the legal system told DFAT they questioned the quality of state-provided legal aid.
[127] DFAT 2024 Report, at [5.18]. And further: Individuals with a monthly income of less than LKR15,000 (approximately AUD70) are eligible for assistance free of charge from the Commission. This threshold can be relaxed in certain circumstances (e.g. for divorced women). People arrested on drug-related charges (the single largest cohort of prisoners) are ineligible for legal aid.
[128] DFAT 2024 Report, at [5.18].
DFAT records that in November 2020, the HRCSL found a lack of access to effective legal representation was a major grievance of defendants from low socioeconomic backgrounds, who struggled to pay legal fees, particularly in prolonged criminal trials, and had to resort to selling assets.[129] The HRCSL described a general perception of state-assigned lawyers not undertaking their duties with diligence, including limited communication with defendants, potentially resulting in people from low socioeconomic backgrounds receiving harsher sentences due to their financial status rather than their culpability.[130]
[129] DFAT 2024 Report, at [5.19].
[130] Ibid.
DFAT reports that its in-country sources and NGOs have reported failures of the legal system to protect women reporting gender based violence.[131]
[131] DFAT 2024 Report, at [5.20].
DFAT advises that Sri Lankan law prohibits double jeopardy under the Code of Criminal Procedure Act 1979, and its in-country sources reported that, to the best of their knowledge, a Sri Lankan national tried for a crime overseas cannot be tried again in Sri Lanka.[132] DFAT advises that is not aware of recent cases of double jeopardy.[133]
[132] DFAT 2024 Report, at [5.21].
[133] Ibid.
DFAT assesses the legal system is independent and impartial, if not always efficient.[134] DFAT assesses that any Sri Lankan, including those from minority communities and victims of crime, can pursue remedies through the legal system, although language can be a barrier for Tamil speakers outside of Tamil-majority areas.[135]
[134] DFAT 2024 Report, at [5.22].
[135] Ibid.
FINDINGS AND REASONS
The Tribunal has regard to all material before it, including that referred to it by the Secretary pursuant to s 418(3) of the Act, all subsequent material provided to the Tribunal, and relevant country information.
Receiving country
The applicant's evidence in relation to his nationality, place of birth, places of residence, ethnicity, religion and languages spoken, has been consistent throughout his primary and merits review protection visa processes. The applicant has also been consistent in his evidence that he is a national of Sri Lanka and of no other country, as were his parents. The applicant has demonstrated he speaks Sinhalese [Sinhala], the official national language of Sri Lanka.[136]
[136] United States Government, Central Intelligence Agency (CIA), The World Factbook, Sri Lanka, available at: .
The applicant provided to the Department for the purposes of his protection visa application, certified copies of 2 passports purporting to have been issued to him by the Sri Lankan authorities [in] 2006 and [in] 2019. The applicant also provided a certified copy of a document purporting to be his birth certificate issued to him by the Sri Lankan authorities. The certified copies of both passports contain a photograph of a person bearing a true likeness to the applicant. Those passports and the birth certificate also contain other biodata information consistent with the applicant’s evidence.
On the evidence before it, the Tribunal finds the applicant is a national of Sri Lanka and no other country, and Sri Lanka is his only receiving country for ss 36(2)(a) and (aa) of the Act.
Home area
Judicial authority states that decision-makers must assess, on the material before her or him, the place or places to which an individual is likely to return, and that the first step of the decision-maker’s assessment is to make findings about, at least, one of those places.[137]
[137] CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134 per Tracey, Mortimer and Moshinsky JJ at [45].
On the material before it the Tribunal finds in the applicant’s particular circumstances, if he were to return to Sri Lanka, he would return to reside in the vicinity of [City 1] District, Southern Province, where his wife and children reside and where he has generally lived since birth while residing in Sri Lanka. The Tribunal finds there is no other location within the country where it is likely that he would reside now or in the reasonably foreseeable future.
Political opinion
The Tribunal finds that the applicant’s claim to fear harm in Sri Lanka for reason of his imputed political opinion is not credible. The Tribunal also finds not to be credible his claim to have been attacked by people at his workshop 18 months prior to him travelling to Australia.
The Tribunal has made this assessment upon reviewing the applicant’s evidence in its totality, including the Tribunal’s concerns with his evidence detailed below. In doing so, the Tribunal has made appropriate allowances for minor variations and discrepancies in evidence that naturally occur when oral evidence is communicated through an interpreter, and for the effect of the passage of time on memory. The Tribunal has also had regard to relevant judicial authority on the issue of findings on credibility in this context[138], the Migration and Refugee Division’s Guidelines on the Assessment of Credibility[139], as well as the following general principles:
a.a person must generally be found to be a credible witness unless there is logically probative evidence to support a finding otherwise;
b.it is not reasonable to disbelieve a particular applicant solely due to minor inconsistencies in evidence; and
c.in considering any apparent inconsistencies, and aspects relating to the applicant’s account of past events, regard must be had to the common belief among academics and medical professionals regarding the variable nature of memory and the impact of trauma on memory processing, and that the memory is not a genuine reconstruction from autobiographical memory.
[138] Including: Abebe v The Commonwealth (1999) 197 CLR 510 per Gummow and Hayne JJ at [192] and Kirby J at [211]; Uthayachandra Sellamuthu v Minister for Immigration & Multicultural Affairs [1998] FCA 1423 per Hely J (these comments were not affected by the Full Court decision in Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247); Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 per Kirby J at [7]; Guo Wei Rong v Minister for Immigration and Ethnic Affairs [1996] FCA 1263 per Foster J at [26].
[139] Administrative Appeals Tribunal, Guidelines on the Assessment of Credibility, July 2015, available at: >
The applicant appeared before the Tribunal and gave evidence for more than 3 and a half hours. The Tribunal has serious concerns with the applicant’s evidence as it relates to his claim to fear being harmed on return to Sri Lanka for reasons including due to his imputed political opinion and/or political associations. Further, the Tribunal finds on the material before it that while the below concerns collectively support the Tribunal’s adverse credibility finding above, even if the Tribunal were wrong in relation to one of them, it finds that the remaining concerns would still cumulatively support this adverse finding in the particular circumstances of this case.
First, the Tribunal has serious concerns with material inconsistencies affecting the applicant’s evidence regarding the reasons why he fears harm on return to Sri Lanka, as well as the shifting nature of his claims more generally. The Tribunal gives this some weight.
As above, in his protection visa application form the applicant claimed to fear harm on return to Sri Lanka for reasons relating to him having been a ‘strong party member’ and the ‘village leader’ of JVP who “worked hard to mobilise people against the Mahinda Rajapakse's rule” during the recent presidential elections. He claimed that he was subject to political persecution and was a victim of harassment and torture perpetrated against him by the defeated party. Also mentioned above is the applicant’s evidence before the Tribunal at the hearing that, despite his protection visa application form recording that he did not access any assistance in completing the form, he was assisted by Ms Wanakulasuriya to complete and lodge that paperwork with the Department. As stated above, at the Tribunal hearing the applicant gave evidence that he has never been a member of any political parties or entities whether online or in-person, or otherwise involved with political matters. And that he was attacked at his workshop because he was imputed to be affiliated with JVP. This is generally consistent with what his oral evidence was before the delegate at his protection visa interview, as recorded in the delegate’s protection visa decision record (that the applicant provided to the Tribunal for the purposes of the review). That decision record states that at the protection visa interview he claimed that he was never a member of any political party and had not been involved in previous party activities, including at the referred election, and that prior to his departure from Sri Lanka he was targeted because he was perceived to be a supporter of JVP party.
When the Tribunal put its concerns to the applicant at the hearing in relation to this apparent changing nature of his claims, the applicant responded that he had given the information to his lawyer at the time, Ms Wanakulasuriya, but he doesn’t know what she then wrote on his protection visa application form. Considering the applicant’s earlier evidence at the hearing that at the time his protection visa application form was completed he could read and write in English well, and that he reviewed the information contained in his protection visa application forms prior to them being lodged with the Department, the Tribunal does not find the applicant’s response convincing.
Second, the Tribunal has concerns with an inconsistency in the applicant’s evidence regarding the nature of the harm that he suffered when he claims he was attacked at his workshop 18 months prior to him departing Sri Lanka for Australia. The Tribunal gives this some weight.
Following his protection visa interview with the delegate the applicant submitted the 2019 Doctor Letter to the Department. This document written in the Sinhalese language with English translation purports to be a letter from a medical professional in Sri Lanka dated 20 November 2019, stating, among other things, the applicant was treated for a period of 21 days from 2 September 2013 for a "disorder of spinal". At the Tribunal hearing the applicant confirmed that he relied on the 2019 Doctor Letter as evidence of the injury he suffered when he was attacked at his workshop. At the hearing the applicant gave evidence that in that attack the only injury he suffered was to his pelvic-hip joint, and that the ligaments where the leg bone attaches to the pelvic joint were damaged and it caused him a lot of pain afterwards.
When the Tribunal put to the applicant at the hearing that the doctor’s letter appeared to refer to medical issue related to his spine and this did not appear to be the injury he had described, the applicant responded that he had brought that doctor letter with him and had it translated but only he can know what happened to him. The Tribunal does not find the applicant’s response persuasive.
Third, the Tribunal has concerns with the plausibility of several material aspects of the applicant and [Ms B]’s evidence. The Tribunal gives this some weight. Some examples are as follows:
a.At the hearing the Tribunal asked the applicant whether anything further occurred after he was attacked and prior to his departure from Sri Lanka 18 months later, to indicate to him that he continued to be at risk of harm. The applicant responded that he was living in hiding during this period. When the Tribunal asked where he was hiding for that period, the applicant stated he stayed at his workshop in [City 1] city and didn’t go out, and that he also hid in the bushland behind his home. The Tribunal does not consider it reasonably plausible that someone in the applicant’s particular claimed circumstances would choose to hide in the same location as where they had been attacked.
b.The applicant’s oral evidence at the hearing was that a few months after he departed Australia in 2015 the people who attacked him in 2013 searched for him and threatened his wife. When asked whether his wife reported this to the police, he stated that she did not because she worked for the government, and another reason why she did not report it might be because she had [small] children and she was on her own and she didn’t communicate with his sisters there. When [Ms B] was asked at the hearing whether she sought protection from the police in respect of the threats she claimed she received from the people who attacked her husband in 2013, she stated that she did not because she had a government job and she thought reporting it to the police would escalate the whole issue. Similarly, when the Tribunal asked [Ms B] if they made a report to the police when the applicant was attacked in 2013, she stated they did not because the applicant’s life was threatened and this would have escalated the issue further. The Tribunal does not find the applicant and [Ms B]’s explanations for why they did not seek police protection convincing. In reaching this conclusion the Tribunal has had regard to country information, and the 2022 Police Record purporting to indicate [Ms B] was willing to seek police protection in respect of other matters.
Fourth, the Tribunal finds aspects of the applicant’s oral evidence at the hearing relating to core aspects of his claims to be generally vague and unconvincing and not commensurate with what would reasonably be expected from someone in his claimed circumstances with those lived experiences. The Tribunal gives this some weight. Some examples are as follows.
a.At the hearing the applicant gave evidence that he has no idea why those people came to his workshop and attacked him in 2013 but he assumes it was for political reasons associated with the JVP. When asked for more information, he stated that he does know which of his customers are members of political parties or who have political acquaintances, and he only ran his business.
b.The applicant gave evidence at the hearing that he has never had any involvement with politics and neither has his wife. The applicant claimed at the hearing that when he was attacked at his workshop in 2013 those who attacked asked if he supported the JVP and then demanded money from him. When the Tribunal asked the applicant later why he believes those people chose to target him, he stated that he does not know, and he also lost two of his friends. When asked for more information, he stated that he didn’t decide what political connections his customers had, and he can only assume that is the reason why he was targeted. When asked whether he believes it was an opportunist criminal act to extort money from him, or whether it was for political reasons, the applicant stated that he assumes it was because he was affiliated with the JVP.
c.When the Tribunal asked the applicant at the hearing whether anything had happened since he arrived in Australia in 2015 to make him think he would be at risk of harm if he returned to Sri Lanka, the applicant stated there was an assassination that took place in Sri Lanka 3 or 4 days prior to the Tribnal hearing. When asked if that incident related in any way to him, his family, or his circumstances, the applicant stated that it didn’t, but it was just an example.
d.The applicant claimed at the hearing that when he was attacked at his workshop in 2013 those attackers demanded he pay them money. When asked if they stole anything from his shop on that occasion, he stated they only took money. When asked how much money to stole from him, he responded that he was unable to say.
The Tribunal finds on the totality of the evidence before it that the applicant’s claim to have been attacked in 2013 and to be of continued adverse interest to those who targeted him in the years that followed, not to be credible. The Tribunal finds on the evidence before it the applicant has never been harmed or threatened with harm in Sri Lanka for reason of his actual or imputed political opinion or for any other reason.
Following the above, the Tribunal finds there is not a real chance, or alternatively a real risk[140], the applicant would suffer harm of any kind for any reason related to his actual or imputed political opinion, or related to his former business, now or in the reasonably foreseeable future in Sri Lanka or as a necessary and foreseeable consequence of his removal to that country.
[140] Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]. Special leave to appeal from this judgment was refused: Minister for Immigration and Citizenship v SZQRB [2013] HCATrans 323.
Family inheritance dispute
100. The applicant gave clear and consistent evidence at the hearing that, other than those who attacked him in his workshop in 2013, he does not fear harm from any other persons in Sri Lanka. He also confirmed in clear terms before the Tribunal that he does not fear being harmed by his family members in Sri Lanka for reasons relating to their claim against his property in Sri Lanka. He also added that he has no issue with his family members and that claim, and he could sort the issue out himself if he returned to Sri Lanka.
101. On the totality of material before the Tribunal, including the country information referred to above, the Tribunal finds there is not a real chance, or alternatively a real risk[141], the applicant would suffer harm of any kind from his family members in Sri Lanka or persons acting on their behalf, now or in the reasonably foreseeable future in Sri Lanka or as a necessary and foreseeable consequence of his removal to that country.
[141] Ibid.
Concluding findings
102. On the totality of the evidence before it, considering the applicant’s claims individually and cumulatively, the Tribunal finds there is not a real chance, or alternatively a real risk[142], the applicant would suffer any form of harm on return to Sri Lanka, now or in the reasonably foreseeable future or as a necessary and foreseeable consequence of his removal to that country.
[142] Ibid.
103. The Tribunal finds there is not a real chance the applicant would be persecuted in Sri Lanka now or in the reasonably foreseeable future. Following this, the Tribunal finds for s 36(2)(a) of the Act that it is not satisfied the applicant is a person in respect of whom Australia has protection obligations because they are a refugee.
104. Having concluded the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the complementary protection criterion in s 36(2)(aa). The Tribunal finds for s 36(2)(aa) that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed to Sri Lanka, there is a real risk they will suffer significant harm.
105. There is no suggestion the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.
106. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
107. The Tribunal affirms the decision not to grant the applicant a protection visa.
Gregory Hanson
MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
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5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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