2010856 (Refugee)

2010856 (Refugee) [2021] AATA 3311 (29 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2010856
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Michael Hawkins AM
DATE:29 June 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.
Statement made on 29 June 2021 at 7:40am

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – complementary protection – Federal Circuit Court remittal – abduction and extortion – family’s link with LTTE – wealthy business family – failed asylum seeker – illegal departure – mental health issues – wife’s protection claims – psychological vulnerabilities – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91R, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (“the Act”).
The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 8 November 2012 and the delegate refused to grant the visa on 23 December 2013.
The applicant appeared before the Tribunal “the First Tribunal” on 8 May 2015 to give evidence and present arguments. The First Tribunal affirmed the delegate’s decision on 28 May 2015. The decision of the First Tribunal was set aside by the Federal Circuit Court [in] August 2016. The matter was remitted to the Tribunal pursuant to an order of the Court.
The applicant appeared before the Tribunal (differently constituted) again “the Second Tribunal” on 20 October 2017 and again on 22 June 2018 to give evidence and present arguments. The Second Tribunal affirmed the delegate’s decision on 18 July 2018. The decision of the Second Tribunal was set aside by the Federal Circuit Court. The matter was remitted to the Tribunal pursuant to an order of the Court.
Pursuant to that order, the applicant appeared again before this Tribunal (differently constituted) on 15 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr C], who is a social worker at[Organisation 1]. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review by his registered migration agent (“RMA”). The representative attended the Tribunal hearing by telephone.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under section 36 of the Act and subclause 866.221 of Schedule 2 to the Migration Regulations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background:
The applicant claims to be [an age]-year old man from [Town 1], Battcaloa, Eastern Province, Sri Lanka, where he remained until the end of 2001.
The applicant claims to be a Hindu Tamil.
The applicant claims to have relocated to Amparai District in the Eastern Province of Sri Lanka at the end of 2001 and remained there until January 2003.
The applicant claims to have subsequently moved to Colombo, Sri Lanka in January 2003 where he remained until the end of 2006.
The applicant claimed that in December 2006, he travelled to [Country 1] on a working visa where he remained until June 2009.
The applicant claimed that in June 2009, he travelled back to Amparai District, Sri Lanka and stayed for approximately three months before travelling back to [Country 1] where he remained until January 2010.
The applicant claimed that in June 2012, he returned to Amparai District where he remained until he departed Sri Lanka en route for Australia.
[In] July 2012, the applicant arrived at Christmas Island [as] an Illegal Maritime Arrival (“IMA”).
On 16 October 2012, the applicant was granted a Class WE, Subclass 030 (Bridging) Visa by the Department.
On 8 November 2012, the applicant lodged an application for a Class XA, Subclass 866 (Protection) Visa.
Claims:
Summarised from the applicant’s XA 866 protection visa application and written claims
The applicant claims to be a Hindu Tamil born in [Town 1], Batticaloa, Sri Lanka.
The applicant claims that he has not been married and does not have any children.
Abduction (2001)
The applicant claims that in 2001, he was on his way to class when he was abducted by four armed men in a white van. The applicant claims that the armed men tied his hands behind his back, placed cotton in his mouth and beat him. The applicant claims that he was taken to [a location] by the armed persons and as a result of the beating [he suffered injuries].
The applicant claims he was kept in the house for eight days with three other boys. The applicant claims that after eight days he managed to escape with the other boys out of a window. The applicant was able to find a person with a phone and subsequently contacted his father.
The applicant claims that during his abduction he was questioned about his involvement with the Liberation Tigers of Tamil Eelam (LTTE) and was forced to sign a document which was written in Sinhalese.
The applicant claims that after this incident his father lodged a complaint with the Sri Lankan police. The applicant claims that persons in a white van also tried to capture his brothers and as a result they moved overseas.
Abduction and extortion (2011)
The applicant claims that in approximately November/December of 2011 he was abducted by four armed men from his house. The applicant claims that he was taken away in a white van and was not released for six days and that during this period the armed persons beat him, [details deleted].
The applicant claims that the persons who abducted him were from the Karuna group as they were speaking both Tamil and Sinhalese and were armed.
The applicant claims that the armed persons contacted the applicant's father (after getting his contact details off the applicant) and demanded [amount] rupees in exchange for the applicant.
The applicant claims that he made this phone call to his father on approximately the third day requesting the money. The applicant claims his father arrived on the sixth day with [amount] rupees and he was subsequently released, however before the applicant was released, his father was beaten by the armed persons.
The applicant claims that after this event his father lodged a complaint with the Human Rights Commission and the Sri Lankan police.
LTTE Links
The applicant claims that his father's [brother] was forcibly recruited by the LTTE in 1990.
The applicant also claims that his father's cousin was also a member of the LTTE and was killed by the Sri Lankan Army (SLA) in 1996.
The applicant claims that his mother's cousin's sister's husband was a member of the LTTE and was killed by the SLA in 1991.
The applicant claims he does not know the extent or nature of any of these family members involvement with the LTTE.
Since departing Sri Lanka
The applicant claims that since departing Sri Lanka members from the SLA have enquired about his whereabouts after they conducted a census of the family.
The applicant also claims that the persons in the white van have again attended the applicant's family home requesting money from his father. The applicant claims that this occurred approximately six months before the PV interview and at the time his mother was beaten and as a result cannot walk properly.
Fear upon return to Sri Lanka
The applicant claims that he fears that upon return to Sri Lanka he will be arrested, detained, imprisoned, physically assaulted, tortured or killed. The applicant claims that this form of harm will be perpetrated against him because he is a Tamil and will have an imputed pro-LTTE political opinion as he is a young Tamil male. The applicant also claims that he will be harmed because he sought asylum in a Western Country.
The applicant claims to fear this form of harm from the Sri Lankan authorities and the armed men in the white van which he suspects are from the Karuna group.
Summarised from the protection interview with the delegate
The applicant claimed that he had some form of 'mental disturbance'. It was submitted on behalf of the applicant that his mental health concerns arose as a result of a beating where he sustained injuries to his face and ultimately led to him being hospitalised on a number of times. The applicant claimed that his mental health concerns are heightened by the concerns he has for his family which have manifested itself in stress and anxiety
Summarised from post-interview submissions to delegate
It was submitted on behalf of the applicant that his father was targeted for extortion as his family are perceived to be wealthy Tamils for reasons relating to his father's employment with [Company 1] and his mother's family's [business] in Sri Lanka.
It was submitted that the applicant's mother and her family are wealthy through the operation of a [business].
In a post-interview submission, it was submitted that the applicant suffers from post-traumatic stress disorder and exhibits abnormal behaviours. The post-interview submission also claims that the applicant suffers from lethargy and suffers from stress and anxiety and has difficulty with his concentration and memory. The post-interview submission further claims that since his time in Australia he has attempted to seek the support of a psychologist.
In post-interview submissions, the applicant’s illegal departure was characterised as falling under the Convention ground of ‘political opinion’ as ‘illegal departure or stay abroad is explicitly politically motivated’, or where ‘the state of origin [views] the unauthorised departure or stay abroad as an implied political statement of disloyalty or defiance’.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
·The applicant’s protection visa application forms completed and lodged on 8 November 2012 (“visa application”);
·The applicant’s identity documents being a copy of his passports, birth certificate, Sri Lankan national identity card, Australian adult proof of age card and marriage certificate;
·The protection visa decision record dated 23 December 2013 (“delegate’s decision record”);
·The review application form, which did not include a copy of the delegate’s decision record;
·All documents submitted to the Department of Immigration and Border Protection (“the Department”) in support of the applicant’s protection visa application, including:
oan extract of a police report from [a] Police Station dated [December] 2011 (untranslated);
opost-interview submissions dated 10 July 2013 and the attached country information;
oa medical diagnosis ticket issued by [a] Hospital;
othe death certificate of [a named person];
othe applicant’s residential certification dated [June] 2013;
othe applicant’s pupil’s record sheet dated [November] 2002;
oletter issued by the UNHCR (untranslated); medical certificate issued by [a second] Hospital dated [May] 2013;
othe applicant’s father’s pay slip for October 1982;
othe applicant’s school leaving certificate (untranslated); and
onews articles containing country information;
·All documents submitted to the Tribunal in support of the applicant’s application for review, including:
osubmissions from the applicant’s RMA dated 4 May 2015, 9 October 2017, 2 November 2017, 3 November 2017, 4 January 2018, 17 April 2018, 15 June 2018, 4 July 2018, 23 February 2021, 27 April 2021 and 25 June 2021;
osummons issued by the Sri Lanka Police [in] March 2014;
orecommendation to resign letter addressed to the applicant’s father (untranslated);
othe applicant’s father’s resignation letter (untranslated); diagnosis ticket;
oletters of demand issued by the Sri Lanka Police dated [July] 2014 and [August] 2014 (untranslated);
othe applicant’s sons’ birth certificates;
othe applicant’s sibling’s identity card issued by [a refugee organisation in another country];
oconfirmation of lodgement of asylum request issued by [another country] to the applicant’s sibling;
osupport letters from [names deleted];
ostatutory declarations from the applicant’s wife dated 15 March 2017, 25 September 2017 and 27 March 2018;
omedical certificate and mental health care plan issued by [a] Medical Practice;
othe applicant’s statement dated 17 April 2018;
ophotographs of two rings; telephone logs; infringement notice issued to the applicant dated [February] 2018;
oupdated address confirmation slip issued by [government department]dated [April] 2018;
omedical letter issued by [a] Specialist Centre dated [September] 2017;
othe applicant’s medical history from [a health facility];
obirth certificates for [names deleted];
odocuments for the applicant’s wife’s deceased ex-husband, including his birth certificate, embalming and sealing certificate, flight details for his return, passport, transfer of dead body certificate, travel document (untranslated), goods declaration and funeral notice;
ocounsellor reports by [Mr C] and [Ms B];
oReport of the OHCHR on Sri Lanka dated 12 January 2021;
oReport of Amnesty International on Sri Lanka published in 2021;
oa video address from Yasmin Sooka, Executive Director of the International Truth and Justice Project on 18 May 2021;
oa news article in relation to the arrest and detention of the Mayor of Jaffna, published by the Tamil Guardian on 24 May 2021;
oa media release in relation to the accuracy of Australian country information reports on Sri Lanka in light of findings made in a recent immigration case in the United Kingdom Upper Tribunal, published by the Australian Centre for International Justice on 3 June 2021;
oa medical letter from [a] Clinic in relation to the applicant’s wife dated [June] 2021;
othe full judgement of KK & Anor v Secretary of State for the Home Department (2019) EWCA Civ 172 Appeal Numbers: PA/09978/2016 and PA/13288/2018 (United Kingdom);
othe United Kingdom Home Office’s Country Policy and Information Note on Tamil Separatism in Sri Lanka, published in 2021;
oa media release in relation concerns raised by the UN High Commissioner for Human Rights on Sri Lanka, published by the Colombo Gazette on 22 June 2021;
oa media release in relation to a statement made by the 47 members of the UN Human Rights Council on Sri Lanka, published by the Mirage on 22 June 2021;
oa media release in relation to concerns raised by MPs in relation to the deterioration of human rights in Australia, published by the Tamil Guardian on 17 June 2021;
oa media release in relation to a resolution made by the European Parliament to address Sri Lanka’s human rights situation, published by Human Rights Watch on 10 June 2021; and
oa media release in relation to the shooting of a Tamil man in Batticaloa by Sri Lankan security forces, published by the Tamil Guardian on 21 June 2021.
·Country information from the applicant’s submissions and other sources, as discussed at the hearing before the Tribunal on 15 March 2021. The Tribunal also had regard to the Department of Foreign Affairs and Trade’s (“DFAT”) most recent Country Information Report on Sri Lanka, published on 4 November 2019 (“DFAT Report on Sri Lanka”), the Report of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment on his mission to Sri Lanka in the period 29 April to 7 May 2016 (“Report of the UN Special Rapporteur on Sri Lanka”), the Report of the United Kingdom Home Office Fact-Finding Mission to Sri Lanka dated 20 January 2020 (“UK Home Office Report on Sri Lanka”) and the United Kingdom Home Office’s Country Policy and Information Note on Tamil Separatism in Sri Lanka, published in 2021(“UK 2021 Home Office Report”).
Country of reference / receiving country:

The applicant claims to be a citizen of Sri Lanka. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Sri Lanka is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing:
The applicant attended the hearing on 15 March 2021 which was conducted in-person at the Brisbane registry of the Tribunal. He was accompanied and represented by his RMA, who appeared by telephone. The hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa, he must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee he must have a well-founded fear of persecution in Sri Lanka. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Sri Lanka. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Sri Lanka.
The Tribunal confirmed with the applicant that one witness, [Mr C], who is a social worker at[Organisation 1], was recorded for appearance during the hearing. The Tribunal considered a statement from [Mr C] tendered prior to the hearing noting its contents. The Tribunal inquired of [Mr C] as to whether he had additional evidence to the statement. He advised he did not, but was available for any questions the Tribunal might have in relation to it. The Tribunal stated that it was prepared to accept the statement and [Mr C]’s evidence on their face. The Tribunal invited [Mr C] to remain in the hearing as a support person for the applicant. He agreed to do that.
On 5 February 2021, the applicant’s RMA had written to the Tribunal advising that [Ms B], a counsellor at [Organisation 1] will be appearing at the hearing as a support person for the applicant’s wife. On 9 March 2021, the applicant’s RMA wrote to the Tribunal advising that [Ms B] was no longer able to attend the hearing and requested alternative arrangements be made to take evidence from the applicant’s wife and [Ms B] at a later date. During the hearing, the Tribunal confirmed with the applicant that further evidence was not required to be taken from the applicant’s wife and [Ms B] as both intended to confirm that the applicant was married to his wife and that his wife suffered from several severe mental health issues for which she was receiving treatment. It was the contention of the applicant’s wife and [Ms B] that the applicant’s wife had a strong reliance on the applicant for support of her and their children and that there would be grave consequences for all of them if the applicant was returned to Sri Lanka. The Tribunal had considered statements of the applicant’s wife tendered to the Second Tribunal and associated medical reports tendered in support at that time. The Tribunal acknowledged those statements and stated that it was prepared to accept them on their face.
The Tribunal noted the difficulties that the applicant had in the presentation of his case to the Second Tribunal. It noted that when pressed by the Tribunal to give an account and reasons for seeking protection, the applicant became distressed, and notwithstanding being told by the Tribunal Member that it was his opportunity to put his case and whilst also understanding the frustrations and stress of repeating his claims, the applicant stated that he could not take it anymore and would not give any further evidence or claims.
The Tribunal noted that the Second Tribunal invited further submissions and made her decision on the basis of the documents before her.
The Tribunal noted the pre-hearing submission of the applicant’s Representative dated 23 February 2021. The Tribunal noted the request that the Tribunal take into consideration all previous submissions made on behalf of the applicant in regard to the previous review applications that were with the various previous Tribunals.
The Tribunal noted the RMA’s Chronology of Events.
The Tribunal noted the RMA’s request for it to consider the recommendation made by the Second Tribunal that the Minister intervene and the grounds the Second Tribunal offered in recommending that intervention. The Tribunal further noted that on 23 July 2018 the Ministerial Intervention Unit determined not to refer the matter to the Minister for consideration.
The Tribunal discussed with the RMA that the substance of his pre-hearing submission appeared to be based on two grounds. The first appeared to be based on the applicant’s mental health issues, with the substance appearing to be that the applicant will suffer immensely if required to go back to Sri Lanka and be separated from his wife and children and that his wife and children in turn will suffer serious impacts if he is returned to Sri Lanka whilst they remain here. The fact of his wife also having a protection visa was noted by the Tribunal as an implication that she would not return to Sri Lanka herself.
The Tribunal acknowledged that that issue was certainly one for consideration by the Minister, but did not appear to be a claim pertaining to a fear of persecution in Sri Lanka.
The second issue that the RMA referenced was the identical issue raised before the Second Tribunal, that being that the applicant, and his wife, being in a genuine marital relationship, and with three children of that marriage, ought be considered as members of the same family unit.
The RMA submitted that the applicant’s wife was the holder of a Safe Haven Enterprise Visa Subclass 790, which was granted on 22 December 2017 and valid until 22 December 2022. He also submitted that the applicant’s children also hold the same class of visa.
The Tribunal asked the RMA whether he was restating the same argument put before the Second Tribunal, noting for the benefit of the RMA, that if he was, it would be met with the same outcome. The RMA stated that he was.
On that basis, the Tribunal confirmed that this Tribunal would make the same decision as the Second Tribunal in relation to this issue, being that the applicant was not eligible to be considered as a family member of the same family unit on his wife’s Safe Haven Enterprise Visa because the visa that he had applied for was not of the same class as that granted to his wife. The Tribunal also stated that the review before it was in relation to an XA866 Protection Visa and that it could not consider claims or submissions relating to the already granted Safe Haven Enterprise Visa.
Noting the RMA’s submission that he simply restated all of the previous submissions and claims made by the applicant throughout the course of this process, noting the medical reports relating to the applicant and the distress the repetition of restating his claims would cause, and noting the consequences of the applicant attempting to do so during the Second Tribunal hearing, the Tribunal advised the applicant and the RMA that it was reluctant to consider a detailed analysis of the applicant’s claims and previous evidence and to discuss the noted inconsistencies therein, but rather preferred to offer the following observation. The Tribunal noted that having examined the applicant’s claims and his evidence and submissions tendered throughout the Delegate Interviews, and the various hearings and submissions with the First and Second Tribunals, the Tribunal suggested to the applicant that it might be prepared to accept the applicant’s claims on their face and as submitted over time. The Tribunal stated, however, that it was quite familiar with Country Information relating to Sri Lanka, and in particular, Country Information contained in the DFAT Report relating to Sri Lanka and expressed its grave concerns that even if it accepted the applicant’s claims as aforesaid, the DFAT Report and information contained therein, did not appear to support the applicant’s fear of persecution based on the claims made.
The Tribunal noted that the RMA’s pre-hearing submission had not addressed any of the applicant’s specific claims and reminded the RMA of the purpose of this review. The Tribunal invited the RMA to offer a post-hearing submission addressing the Tribunal’s concerns about the application of Country Information, and in particular, Country Information contained in the DFAT Report, to the applicant’s claim of fear of persecution on the basis of the various claims made.
The RMA more than rose to the challenge and provided to the Tribunal a sweeping submission dated 27 April 2021, a further submission on 25 May 2021 and again on 3 June 2021 and a final submission on 25 June 2021 all of which will be considered below.
Assessment of claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular 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 of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (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).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, 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.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]
[1] Guidelines on the Assessment of Credibility (July 2015) Available at >
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]
[2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
In the submission of 27 April 2021, the RMA restated the applicant’s claims as follows:
·He is a Hindu Tamil;
·In 2001, he was abducted while on his way to class by four armed men in a white van, held, tortured, questioned about involvement in the LTTE, suffered [injuries], forced to sign a document written in Sinhalese, and after eight days he escaped with other detainees out a window;
·He then stayed four years hiding in Colombo (2002 to 2006) and then four years in [Country 1] (2010, except for a brief trip to Sri Lanka in 2009 for three months to visit his family);
·In 2011, he was abducted from his home by four armed men in a white van, held, tortured, questioned about involvement in the LTTE, suffered [injuries]. His father was told to pay a ransom of [amount], but paid [amount] and the applicant was released;
·His father’s [brother] was forcibly recruited into the LTTE;
·Two other relatives were members of the LTTE, and killed by the Sri Lankan army in 1991 and 1996, respectively;
·Since he left Sri Lanka, members of the Sri Lankan Army have asked where he is;
·Since he left Sri Lanka, the four men from the white van have gone to his father to demand money;
·He fears arrest, detention, torture and death as a person with an imputed opinion of support for (or involvement in) the LTTE.
The RMA proceeded to address the DFAT Report and what he claimed were its deficiencies. The RMA stated that the DFAT Report is outdated and reports on a Sri Lanka prior to 2019. He also stated that the DFAT Report highlights several credible human rights violations, but fails to adequately weigh those in considering the risk to specific Tamil civilians. The RMA was kind enough to submit two documents:
·Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka, published 12 January 2021[3]; (the OHCHR) and
[3] Office of the United Nations High Commissioner for Human Rights, A report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka (United Nations, 2021).
·Old Ghosts in New Garb: Sri Lanka’s Return to Fear, published in February 2021[4] (the Amnesty International Report).
[4] Amnesty International, Old Ghosts in New Garb: Sri Lanka’ Return to Fear (Amnesty International 2021)
The RMA submitted that DFAT Reports are generally based on information received from the Sri Lankan Government. He went on to add that it would be hard to believe that Sri Lanka would openly and honestly provide information that would damage its reputation. The Tribunal rejects that submission out of hand as the Department of Foreign Affairs sources its information from a variety of sources, including, and particularly, on-the-ground connections and sources within different countries.
The RMA correctly submits that the DFAT Report was published prior to two key political changes in Sri Lanka, being the Presidential election of Gotabaya Rajapaksa and the election of his brother, Mahinda Rajapaksa, as Prime Minister of Sri Lanka. He notes that the President and Prime Minister have made many appointments to elite and key positions within the Sri Lankan government based on nepotism, many of which appointees have close connections to the Rajapaksa family and those involved both during and after the Civil War. He suggests that several of these appointees have been sanctioned by the UN for Human Rights Violations and Crimes against Tamil Population, including the massacre of more than 100,000 Tamil innocent men, women and children. The RMA cites the OHCHR Report.
The RMA also notes that that DFAT Report was prepared before the COVID-19 pandemic, which has caused drastic economic decline in the region, disproportionately affecting the poor rural areas of the north and east.
The RMA also cites a number of examples of observations by the OHCHR, being mainly criticisms of the speed of progress to address human rights violations. He also cites Human Rights Watch which has observed increased militarisation, including increases in military checkpoints and crackdowns on journalists and human rights watchdogs throughout the region.
The Tribunal notes the RMA submissions, noting further that they are not new. In this Tribunal’s experience, it is aware that that the currency of the DFAT Report is often raised by applicants of Sri Lankan nationality seeking review of protection visa refusals, citing in particular the return of the Rajapaksa brothers to power and the fact that their return post-dates the DFAT Report.
The Tribunal acknowledges many of the claims made by the RMA in relation to Sri Lanka’s new government. It notes the observations in relation to the progress or lack thereof of human rights violations, an increase in the militarisation of the economy, politics and governance and also the observation that the Sri Lankan government is currently attempting to avoid the special rapporteur on the right to education.
The Tribunal also notes the submission of two media articles highlighting the deterioration of human rights within the region. It is claimed that these media articles support the unreliability of the DFAT Country Information.
The Tribunal notes its concerns about objectivity in media reports, especially when critical of governments or political and/or emotive issues such as human rights and violations or otherwise of them.
The Tribunal noted the further submission from the RMA dated 3 June 2021. The submission attached a media release, being a joint media release Human Rights Groups Demand Suspension of Reports on Sri Lanka to Access Refugee Applications Following Rejection by a UK Court.
The Tribunal noted the media release, which in part states (in a landmark immigration case in the United Kingdom), three upper Tribunal Judges have been scathing in their rejection of Australian and UK Country Reports used as a basis to determine asylum applications for Sri Lankan Tamils). The consequences for many Sri Lankan applicants, particularly Tamil people seeking asylum in Australia, has been the refusal of protection, based on what the UK Courts has said is unreliable information. The Court also confirmed that if returned to Sri Lanka, they risk being subjected to torture, which the Tribunal says is endemic in the country.
“In a submission to the Department of Foreign Affairs and Trade (DFAT), the international Truth and Justice Project (ITJP) and the Australian Centre for International Justice (ACIJ) advised DFAT last year of their concerns relating to the accuracy, methodology and validity of the conclusions reached in DFAT’s Country Information X Sri Lanka 4 November 2019.
“DFAT’s Country Information Reports are required to be considered by decision-makers at the Department of Home Affairs, the Immigration Assessment Authority and the Administrative Appeals Tribunal when assessing claims for refugee protection. The reports are held to be credible and authoritative, and decision-makers rarely depart from their findings.
“The submission made by the ITJP and the ACIJ has been vindicated, given the judgment of the three bench Tribunal - the decision referenced the inaccurate DFAT 2019 Report on Sri Lanka and found serious method methodological shortcomings, noting that:
None of the sources are identified, there is no explanation as to how the information from these sources was obtained, and there is no annex containing, for example, records of any interviews …”
Indeed, it is unclear whether any formal interviews took place. The Report does not provide direct quotes from any source. In light of these matters, it is difficult to gauge the reliability of the sources which have informed the “judgment and assessment” applied to them by the authors of the Report.

The Tribunal notes that the RMA restates many of the media release observations in his submission of 25 June 2021 as reason why Tribunal ought not give the DFAT Report any weight.
The Tribunal has considered the decision referred to in the joint media release, being KK & RS (Anonymity Directions Made) v Secretary of State for the Home Department[5], and also subsequently kindly submitted by the RMA on 25 June 2021.
[5] [2021] KUT 0130 (IAC), (Sur Place Activities: Risk), Sri Lanka

100. The Tribunal acknowledges that the judgment of the UK Upper Tribunal is not binding on the AAT, nor any Australian Court, however, it is acknowledged that it might be of persuasive value.
101. The Tribunal notes, however, that the predominant purpose of the judgment in the UK Tribunal is to provide country guidance in relation to claims of Sur Place activities.
102. The Tribunal is of the view that the joint media release has taken the findings of the UK Upper Tribunal on the DFAT Report out of context (at [302] to [305]). The UK Tribunal notes that it is difficult to gauge the reliability of the sources which informed the Report and notes that the Report is focused primarily on the situation in Sri Lanka, with little on the question of Sur Place activities.
103. In the review before this Tribunal, there are no claims by the applicant relating to Sur Place activities.
104. Moreover, the UK Upper Tribunal does go on to state that the DFAT Report provides some useful background on the issues of monitoring within the country, relevance of past LTTE links, and the basis upon which the authorities may take an interest in particular returnees. It is clear, therefore, that the UK Upper Tribunal has not rejected the DFAT Report in entirety, as the article might suggest. The UK Tribunal has clearly given some weight to the Report, as is evidenced by its reliance on it at [320], [335], [429 to 430], [497] and [517].
105. This Tribunal also notes that as a general observation, the UK Upper Tribunal did not find that all returning Tamils will be at risk, but those with, or perceived, separatist views or are politically active (possibly even at a low level) may be.
106. On the Tribunal’s interpretation of the UK Upper Tribunal decision, this Tribunal is satisfied that it continues to have the authority to consider what weight it will give the DFAT Report. It notes that the UK Upper Tribunal’s findings alone do not support giving the DFAT Report no weight.
107. Accordingly, the Tribunal has considered the DFAT Report and other sources of Country Information cited in paragraph 57 above.
108. The Tribunal considered Country Information that it had obtained from the DFAT Report on Sri Lanka:
Race/Nationality
3.4 DFAT assesses that non-Muslim Sri Lankans, including Tamils, face a low risk of official or societal discrimination based on ethnicity or caste, including in their ability to access education, employment or housing.
Tamils
3.5 Tamils are the second largest ethnic group in Sri Lanka (15.3 per cent of the population). According to the most recent census, the Tamil population was 3.1 million in 2012, compared to 2.7 million in 1981. Tamils live throughout Sri Lanka but are concentrated in the Northern and Eastern provinces; according to the 2012 census, Tamils comprise 93.8 per cent of the population in the Northern Province and 39.2 per cent of the population in the Eastern Province. Tamils account for 6.8 per cent of the population in the Western Province. Tamils of Indian origin have a large presence in the Central, Sabaragamuwa and Uva provinces.
3.6 Tamils have a substantial level of political influence, and their inclusion in political dialogue has increased since the change of government in 2015. Tamil political parties are numerous, with the largest coalition of parties operating under the umbrella of the TNA. The TMVP and the EPDP are also active politically. The TNA’s vote share dropped with a noticeable swing towards more hardline Tamil groups in the last local government elections (February 2018). Tamils faced less harassment during the 2015 presidential and parliamentary elections than in the 2010 elections. DFAT understands Tamils do not receive unwarranted attention from authorities because of their political involvement, including with the TNA. DFAT assesses there are no barriers to Tamil political participation.
3.7 Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs. Even the Tamil-dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil-speaking police officers and military personnel in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities.
3.8 DFAT assesses there is no official discrimination on the basis of ethnicity in public sector employment. Rather, Tamil’s under-representation is largely the result of language constraints and disrupted education because of the war.
3.9 DFAT is aware that some Sinhalese from the south have resettled in the north and east with government assistance in the post-war period. Local sources in the north expressed concern about the construction of Buddhist statues and temples in non-Buddhist populated areas. DFAT is unable to verify claims that Sinhalese settlers in the north and east have received preferential treatment to establish businesses. Some Tamil sources claimed Sinhalese had been resettled on desired coastal land and that Sinhalese fishermen in the north were supported by the Navy.
Monitoring, harassment, arrest and detention
3.10 Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested or detained by security forces during the war. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner (see Political Opinion (Actual or imputed)).
3.11 Members of the Tamil community claim that authorities continue to monitor public gatherings and protests in the north and east, and practise targeted surveillance and questioning of individuals and groups. Security forces are most likely to monitor people associated with politically-sensitive issues related to the war, including missing persons, land release and memorial events (see Civil society organisations and government critics and Media). Local sources told DFAT that the method of monitoring today was more subtle (see Monitoring of former LTTE members).
3.12 Communities in the north and east report that monitoring is undertaken by military intelligence and the Police Criminal Investigation Department, though in many cases officers dress in plain clothes and do not identify themselves. According to local sources, those participating in public gatherings and protests are often photographed. In the east, local informants within the community (including neighbours and business owners) reportedly undertake monitoring on behalf of the authorities. Intelligence agencies also monitor links to foreign groups, including some in the Tamil diaspora.
3.15 DFAT assesses that, while monitoring of Tamils in day-to-day life has decreased significantly under the current government, surveillance of Tamils in the north and east continues, particularly those associated with politically-sensitive issues. Physical violence against those being monitored is not common.
3.16 The PTA was enacted as a temporary measure in 1979 to counter separatist insurgencies. It was made permanent in 1982. The PTA is not part of regular criminal law, and contains special provisions on detention and the admissibility of confessions. The PTA allows arrests for unspecified “unlawful activities”, permits detention for up to 18 months without charge and provides that confessions are legally admissible. The PTA was used mainly to target those suspected of involvement with the LTTE. During the war, authorities detained more Tamils under the PTA than any other ethnic group. Since 2015, the government has reviewed some cases of persons still detained under the PTA and released some detainees, mostly Tamils (see Arbitrary Arrest and Detention).
3.17 The PTA remains legally in force. It was effectively suspended between 2016 and April 2019, following the government’s commitment to repeal and replace the PTA under HRC Resolution 30/1 (2015). However, the PTA has been used – along with the now-lapsed Emergency Regulations – to detain persons allegedly involved in the 2019 Easter Sunday terrorist attacks. DFAT is unable to verify how many individuals have been detained under the PTA since 21 April 2019.
Liberation Tigers of Tamil Eelam (LTTE)
3.57 While the LTTE was comprehensively defeated, Sri Lankan authorities remain sensitive to its potential re-emergence. According to expert testimony provided to a 2013 hearing of the UK’s Upper Tribunal on Immigration and Asylum, Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases. DFAT understands these databases remain active. ‘Stop’ lists include names of those individuals that have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals that the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities. The UK Home Office reported in June 2017 that the ‘watch list’ comprised minor offenders and former LTTE cadres. DFAT assesses those on a watch list are likely to be monitored.
3.58 Former LTTE members face no legal barriers to participating in public life, including politics. In the August 2015 parliamentary elections, the TNA did not allow ex-LTTE members to run on their ticket, but ex-combatants established the Crusaders for Democracy party and ran for election. While they did not win any seats, their participation demonstrated the openness of the electoral process.
3.59 The LTTE has not carried out any attacks since 2009. DFAT assesses that the LTTE no longer exists as an organised force inside Sri Lanka, and any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans, including those returning from abroad. The government has demonstrated a commitment to easing restrictions: in November 2015, it de-listed eight Tamil diaspora organisations and 269 individuals banned in March 2014 under domestic implementation of UNSC Resolution 1373 (2001) for purported links to a terrorist organisation (the LTTE). Eight organisations and more than 170 individuals (26 of them proscribed on 23 May 2019) remain on the list (see Former LTTE members living outside Sri Lanka). Local sources told DFAT that the Tamil community had abandoned militancy and was committed to addressing its grievances through political means.
3.60 Some members of the LTTE (as well as government forces) may be ineligible for international refugee protection because of involvement in war crimes and serious violations of human rights committed during the war. Such crimes include: abductions and enforced disappearances; indiscriminate attacks on civilians; forced displacement; torture and other cruel, inhuman and degrading treatment; murder, including political assassination; mass killings; extrajudicial and summary executions; rape; and forced recruitment for the commission of attacks and/or military service and/or labour, including recruitment (sometimes through abduction) of children.
Low-profile former LTTE members
3.74 ‘Low-profile’ former LTTE members include former combatants, those employed in administrative or other roles, and those who may have provided a high level of non-military support to the LTTE during the war. DFAT assesses that, although the great majority of low-profile former LTTE members have been released following their rehabilitation, any low-profile former LTTE members who came to the attention of the Sri Lankan authorities, particularly if suspected of having a combat function during the war, would likely be detained and may be sent to the remaining rehabilitation centre. Following their release from rehabilitation, a low-profile former LTTE member might be monitored but would generally not be prosecuted.
Monitoring of former LTTE members
3.75 Some Tamils with imputed LTTE links (including those who fought for the LTTE or were part of its civilian administration) continue to report police monitoring and harassment. Multiple sources in the north told DFAT that former LTTE members, including those considered low-profile, are monitored to guard against the LTTE’s re-emergence, although monitoring today is less extensive and takes a more subtle form. A source that DFAT considers credible claimed the extent of monitoring depends on one’s former seniority within the LTTE; ongoing involvement with politically-sensitive issues, including protests relating to disappeared persons; and links to the Tamil diaspora, particularly elements of the diaspora considered radical by the Sri Lankan Government. Former LTTE members that fit this profile are more likely to be monitored by the authorities. In contrast, those who maintain a low-profile are considered less vulnerable to monitoring.
3.76 Where monitoring did occur, local sources claimed the authorities – usually undercover police officers or intelligence agents – used more subtle methods, for example inviting individuals to tea in public places and asking questions about their activities. The questioning did not involve violence. Telephone calls were also common. Some sources claimed questioning was sometimes indirect, and involved questioning the neighbours of suspected former LTTE members. DFAT is unable to verify these claims. Sources told DFAT that monitoring of former LTTE members was less extensive in the Eastern Province, insofar as many there had defected during the latter years of the war and aligned with the government as part of the Karuna Group/TMVP (see Security situation in the north and east). Formal complaints of harassment and monitoring by former LTTE members to the HRCSL have decreased significantly; few such complaints were received in 2018.
3.77 DFAT assesses that under the current government, while they may be monitored, Tamils with links to the LTTE are generally able to lead their lives without concern for their security as a result of their past association with the LTTE.
Former LTTE members living outside Sri Lanka
3.78 At least one million Sri Lankan Tamils live outside Sri Lanka, mostly in Canada, Europe (with large communities in the UK and France), Australia and India. Members of the Sri Lankan Tamil diaspora may be citizens or legal residents of those countries, or dual nationals. Some members of the Tamil diaspora return to Sri Lanka to visit family members, for holidays and for business. Remittances from the Tamil diaspora provide an important source of income for family and community members in Sri Lanka.
3.79 Some members of the Tamil diaspora played a central role during the war, as a source of funding, weapons and other material support for the LTTE, and as political advocates for an independent Tamil state. The decision by some countries to designate the LTTE as a terrorist organisation after September 2001 made it more difficult for Tamil diaspora communities to raise funds on its behalf.
3.80 Some Tamil diaspora groups continue to hold public demonstrations in their countries of residence for an independent Tamil state. High-profile leaders of pro-LTTE diaspora groups, particularly diaspora groups banned under Sri Lankan law, may come to the attention of Sri Lankan authorities because of their participation in such demonstrations. The Sri Lankan Government continues to assess that elements of the Tamil diaspora remain committed to a separate Tamil state.
3.81 Approximately 95,000 Sri Lankan Tamils live as refugees in Tamil Nadu, India, which, at its closest point, is situated 35 kilometres from Jaffna. Of these, about 60,000 live in camps run by the Tamil Nadu Government (see Returnees from Tamil Nadu). DFAT understands that 44 Sri Lankan Tamil refugees reside in a ‘special camp’ in Tiruchirappalli, Tamil Nadu, managed by the Tamil Nadu Prisons Department. DFAT understands camp inhabitants include former LTTE members, refugees with formal criminal convictions and those awaiting court hearings. DFAT understands that, unlike other refugee camps in Tamil Nadu, special camp inhabitants are not permitted to leave, work or receive benefits entitled to other Sri Lankan Tamil refugees (including a monthly allowance). Similar ‘special camps’ in Chengalpattu and Cheyyar were closed in 2014 and 2016, respectively.
3.82 The Sri Lankan Government has encouraged all Sri Lankans living overseas to return or invest in the Sri Lankan economy. DFAT assesses Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their risk profile. Those who hold leadership positions in Tamil diaspora groups, particularly groups deemed by the Sri Lankan Government to hold radical views; those who were formerly part of the LTTE, particularly in – but not necessarily limited to – high-profile roles; those who are suspected of raising funds for the LTTE during the war; and those who actively advocate for Tamil statehood would likely be of particular interest to the authorities. Those Tamils living abroad with links to the LTTE are unlikely to return to Sri Lanka voluntarily.
Family members of LTTE
3.83 The Sri Lankan Government acknowledges that former LTTE members and their families may continue to face discrimination both within their communities and from government officials. DFAT cannot verify claims that people have been arrested and detained because of their family connections with former LTTE members, but understands that close relatives of high-profile former LTTE members who are wanted by Sri Lankan authorities may be subject to monitoring.
Arrest, detention and prosecution
3.84 Under Regulation 22 of Sri Lanka’s Emergency Regulations (2005) (repealed in 2011), administrative detention in rehabilitation centres or elsewhere was possible for up to two years without judicial review or access to legal representation. Under the PTA, police can detain suspects without charge for extendable three-month periods, not exceeding a total of 18 months. In practice, some persons have been held for more than 10 years. In addition to those arrested under the PTA, some former LTTE members have faced other criminal charges.
3.85 Modest numbers of former LTTE members continue to be detained and prosecuted within Sri Lanka’s criminal justice system. According to local sources, more than 100 former LTTE members are currently being held in detention, including one who is undergoing rehabilitation (see Rehabilitation). DFAT is unable to verify independently the number of former LTTE members in places of detention other than rehabilitation centres.
3.86 The Attorney-General may seek a person’s admission to a rehabilitation program, a prison sentence or dismissal of a case. Case dismissals have been rare, and recommendations for rehabilitation alone have applied only to low-profile detainees. Some high-profile detainees have received prison sentences following their release from rehabilitation.
3.87 DFAT has no information on conviction rates for LTTE members, but the lower standards required for cases brought under the PTA suggests the potential for a higher rate of conviction.
Societal discrimination
3.88 Most former LTTE members released from rehabilitation have been accepted back into their communities in the north and east, despite some suspicion that they may act as informants for Sri Lankan authorities. There is an acknowledgement within the Tamil community that many people were forced to participate in LTTE activities against their will. DFAT assesses that low-profile former LTTE members face a low to moderate risk of societal discrimination. Many have encountered difficulty finding employment, including because some employers are reluctant to hire former LTTE members out of fear it would invite increased police and military attention. Societal discrimination against former LTTE members is also related to caste, as the majority of former LTTE members are lower caste. Former LTTE members can readily access government services.

3.89 Local sources in the north characterised former LTTE members as the most vulnerable and neglected segment of the Tamil population. Former LTTE members face ongoing challenges reintegrating fully into society. Sources told DFAT that unemployment among this cohort is high. Many, including those that received vocational education as part of the post-war rehabilitation process, lack the skills to find and hold meaningful employment, and some have reportedly resorted to criminal activities. Anecdotal evidence indicates that mental illness linked to the war is prevalent among former LTTE members. Those with disabilities sustained during the war receive minimal state support, if at all.
3.90 Local sources report that female former LTTE members face additional hardships, including the risk of sexual harassment and difficulties finding marriage partners owing to their LTTE past. Women who were forcibly recruited by the LTTE are more likely to be accepted back into their communities than those who joined voluntarily.
3.91 DFAT assesses that members of the LTTE suspected of serious human rights violations against Tamils face a moderate risk of societal discrimination. This includes those believed to be responsible for forced recruitment, particularly of children, or those suspected of torture or other mistreatment of Tamil civilians.
Enforced or Involuntary Disappearances
4.5 In May 2016, Sri Lanka ratified the International Convention for the Protection of All Persons from Enforced Disappearance. Parliament passed domestic legislation (the Enforced Disappearances Act) to implement the Convention and criminalise enforced disappearances in March 2018. In September 2017, the government issued a gazette to establish the OMP and appointed commissioners in February 2018 (see Reconciliation).
4.6 While there is no agreed figure, the number of missing or disappeared persons in Sri Lanka is thought to rank among the highest in the world. In June 2016, the ONUR said 65,000 people were missing from the war with the LTTE and separate Marxist insurrections (including members of the armed forces and police identified as missing in action). The OMP estimates at least 20,000 people disappeared without explanation since 1983 and remain missing today. The majority of the missing or disappeared are from the north and east, and are likely to have been members or supporters of the LTTE. In July 2017, the UN Working Group on Enforced or Involuntary Disappearances attributed a number of child disappearances to the LTTE’s recruitment of child soldiers during the war. A small number of disappearances relate to people who have emigrated. For example, Kathiravel Thayapararaja, a former LTTE member who was reported to have been tortured and killed by Sri Lankan security forces in 2009, emerged alive in Tamil Nadu in 2014. Most of those considered missing or disappeared are highly likely dead.
4.7 Protests led by Tamil families demanding information on the disappeared began in the north and east in January 2017, and are ongoing. President Sirisena met protest leaders in Kilinochchi in June 2017 and reportedly agreed to release a list of individuals who disappeared during the war but, at the time of publication, a list had not been provided. The military has resisted previous requests for such information.
4.8 Systematic abductions using white vans, often leading to enforced disappearances, occurred during the war and in the period after. The term ‘white van abductions’ describes instances where individuals were abducted by unknown perpetrators in unmarked vehicles and were mostly never seen again. DFAT assesses that reports of a small number of abductions involving white vans in 2016 and 2017 likely referred to incidents where police did not follow protocol during arrest. DFAT understands that such disappearances are no longer common.
4.9 Extortion and kidnapping for ransom was common during the war, particularly in the north and east. While they are still known to occur, their incidence has decreased considerably in the post-war period. Where extortion and kidnapping for ransom occurs, the motive is usually business-related. DFAT assesses that wealthy Sri Lankans face a low risk of extortion or kidnapping for ransom.
Arbitrary Arrest and Detention
4.30 Although Sri Lankan law prohibits arbitrary arrest and detention, it does not explicitly provide persons under arrest and detention the right to a lawyer or interpreter, or an obligation to inform family of an arrest. The PTA allows authorities to detain suspects without charge for up to 72 hours. After this period has elapsed, a suspect either can appear before a magistrate, or can be held without charge under detention orders for three-month periods not exceeding 18 months, although, in practice, some have been detained without charge for considerably longer than the PTA allows (see Arrest, Detention and Prosecution). Suspects can be held in irregular places of detention, as well as at police stations, detention centres or prisons. The ICRC and the HRCSL have access to PTA detainees and can meet detainees without police escort. Lawyers and families cannot meet detainees unaccompanied. According to media reporting, draft new counter-terrorism legislation (the CTA) would reduce the number of acts considered as terrorism and increase the power of the HRCSL to act as a check on abuses by security forces. The CTA would reportedly allow terrorism suspects to be detained for up to one year without charge. The CTA remained in draft form at the time of publication and may be subject to amendments.
4.31 The 2016 UN Committee against Torture fifth periodic report on Sri Lanka claimed that police powers to arrest suspects without a court warrant and the subsequent practice of detaining persons while conducting investigations were used to obtain information under duress. The report referenced allegations of police investigators failing to register detainees, or to bring them before a magistrate within the time limit prescribed by law. The HRCSL received 101 complaints of arbitrary arrest and detention from January to June 2018.
4.32 Individuals continue to be held under the PTA, although the precise number is contested. A large number of Muslims were detained under the PTA following the 2019 Easter Sunday terrorist attacks. DFAT is unable to verify how many individuals, including Muslims, are currently detained for suspected PTA offences.
4.33 Prior to the Easter Sunday attacks, authorities had made progress in processing persons detained under the PTA. In August 2017, the Sri Lankan Government released a list of 84 people in custody under the PTA and facing trial, and 12 others who had not been charged. According to the Sri Lankan Government, as at 25 January 2019, 58 individuals detained under the PTA were facing trial and three suspects were awaiting indictment. DFAT is unable to confirm whether those arrested under the PTA in 2018 and 2019 have been charged. Prior to the Easter Sunday attacks, the majority of individuals detained under the PTA were Tamil. The maximum penalty under the PTA is 20 years’ imprisonment. The UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism cited government statistics from July 2017 showing that 70 of more than 80 persons charged under the PTA had been detained for more than five years without trial, and 12 for more than 10 years. According to the US Department of State, individuals detained under the PTA have reported torture and mistreatment, forced confessions and denial of basic rights, including access to lawyers and family members.
4.34 In June 2016, President Sirisena instructed the security forces to adhere to HRCSL directives to protect those arrested under the PTA. These include guarantees of medical and legal assistance, registration of arrest, right to language of the detainee’s choice, protection from torture and other mistreatment, and special protection for women and children. The directives reassert the requirement for security forces to inform HRCSL of all PTA arrests, and HRCSL’s right to access any person arrested or detained under the PTA, and to access any place of detention at any time.
4.35 In 2017, protests took place in the north to demand the release of PTA detainees held for protracted periods. In September 2018, some Tamils held under the PTA without charge undertook a hunger strike against their protracted detention.
4.36 The current government has taken limited action to deal with individuals detained without charge under the PTA by its predecessor. In August 2016, the Minister of Prison Reforms, Rehabilitation, Resettlement and Hindu Religious Affairs reported that the government had released 39 detainees on bail and had committed to streamlining judicial processes for PTA cases, including consideration of rehabilitation as an alternative to custody.
Treatment of Returnees
Exit and entry procedures
5.31 The constitution entitles any Sri Lankan citizen ‘the freedom to return to Sri Lanka’… If a returnee voluntarily returns on their own passport on a commercial flight, they may not come to the attention of local authorities if they had departed Sri Lanka legally through an official port on the same passport.
5.32 Different agencies, including the Department of Immigration and Emigration, the State Intelligence Service, the Criminal Investigation Department and, at times, the Terrorism Investigation Division process returnees at Colombo’s Bandaranaike International Airport, including those on charter flights from Australia. These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Australian officials based in Colombo may meet charter flights carrying voluntary and involuntary returnees. The IOM meets assisted voluntary returnees after immigration clearance at the airport and provides some cash and onward transportation assistance. Processing of returnees at the airport can take several hours, due to the administrative processes, interview lengths and staffing constraints. Returnees are processed in groups, and individuals cannot exit the airport until all returnees have been processed, although returnees are free to go to the bathroom and to talk to one another during this time.
5.33 For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. All returnees are subject to these standard procedures, regardless of ethnicity and religion. DFAT understands detainees are not subject to mistreatment during processing at the airport.
Conditions for returnees
5.43 Between 2010-11 and 2018-19, 3,716 Sri Lankan nationals returned from the Australian community or were removed from Australian onshore immigration detention centres to their country or origin or a third country. Many others returned from the US, Canada, the UK and other European countries. Most returnees are Tamil. Although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin and they have existing family links, or because of the relatively lower cost of living compared to the south.
5.44 The Sri Lankan Government has consistently stated that refugees are welcome to return and, in August 2016, released a ‘National Policy on Durable Solutions for Conflict-Affected Displacement’. During a visit to Australia in February 2017, Prime Minister Wickremesinghe stated publicly that failed asylum seekers from Australia would be welcomed back to Sri Lanka (see Offences under the Immigrants and Emigrants Act). Human rights groups greeted this statement with caution.
5.45 Despite positive government sentiment, refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. Most returnees have incurred significant expenses or debt to undertake their outward journey. Some refugee returnees receive reintegration assistance in the form of transport assistance and livelihood support upon return to Sri Lanka from the government, UN agencies and NGOs, but this requires a returnee to meet strict eligibility guidelines and is minimal. Failed asylum seekers receive limited reintegration assistance. Many returnees have difficulty finding suitable employment and reliable housing on return. Those who have skills that are in high demand in the labour market are best placed to find well-paid employment. In 2016, the Sri Lankan Government undertook to recognise the educational and professional qualifications acquired by refugee returnees outside Sri Lanka. This involves obtaining an equivalence certificate; however, returnees continue to report delays in gaining recognition for foreign qualifications. The IOM provides eligible returnees with livelihood assistance and makes regular visits to monitor the welfare of returnees.
5.46 DFAT understands that some returnees, including returnees in the north and east with suspected LTTE links, have been the subject of monitoring by the authorities, involving visits to returnees’ homes and telephone calls by the Criminal Investigation Department. DFAT understands that most returnees, including failed asylum seekers, are not actively monitored on an ongoing basis. DFAT is unable to verify whether monitoring, where it occurs, is specific to former LTTE cadres. DFAT is not aware of returnees, including failed asylum seekers, being treated in such a way that endangers their safety and security. Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had no protection concerns and had not experienced harassment by the authorities, nor received monitoring visits.
5.47 Bureaucratic inefficiencies rather than official discrimination present the biggest challenge to reintegration for returnees. Refugee returnees, particularly those who returned without UNHCR facilitation, can experience delays in obtaining necessary identification documents and citizenship. Lack of documentation inhibits access to social welfare schemes and the ability to open bank accounts, find employment or enrol in educational institutions. Limited job availability in the north and east further contributes to difficulties in securing employment and housing. DFAT assesses that reintegration issues are not due to failure to obtain asylum, but rather due to the employment and accommodation difficulties returnees may face. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they were able to reintegrate into their communities and find employment.
5.48 DFAT understands that returnees may face financial difficulties reintegrating into their communities, including due to sale of their belongings to fund irregular ventures overseas, but do not experience societal discrimination for seeking asylum elsewhere.
5.49 Some refugees and failed asylum seekers reported social stigma upon return to their communities, including for being beneficiaries of financial reintegration assistance. Overall, DFAT understands that societal discrimination is not a major concern for returnees, including failed asylum seekers. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had not experienced societal discrimination following their return.
5.50 DFAT assesses that returnees face a low risk of societal discrimination upon return to their communities. DFAT further assesses that, where it occurs, surveillance of returnees can contribute to a sense of mistrust of returnees within communities.

109. The Tribunal considered country information that it had obtained from the Report of the UN Special Rapporteur on Sri Lanka. Relevantly, the Special Rapporteur noted the following:
·There were credible reports of white van abductions by CID up to April 2016 although it was acknowledged that these were more numerous during the war and in the post-war period;
·There are also credible reports that suspects were detained under the PTA for days and sometimes weeks to extract confessions. The physical abuse of detainees was transitory, such as blows with batons and bats, which heal without medical treatment. Most torture survivors reported that the torture ceased after they confessed, after which they were placed in detention to a remand prison;
·People suspected of being involved in terrorism or national security issues are more likely to be detained and tortured;
·The conditions of detention were inhumane because of overcrowding in the prisons and the lack of adequate medical care; and
·While there was a constitutional right not to be arbitrarily detained, safeguards such as custody hearings, the right of legal counsel and the role of the judiciary and prosecutors were identified as being deficient.

110. The Tribunal considered country information that it had obtained from the UK Home Office Report on Sri Lanka:
Executive Summary
Following the defeat of the Liberation Tigers of Tamil Eelam (LTTE) in May 2009 nearly 10,000 LTTE cadres are believed to have surrendered with many undergoing a period of rehabilitation in dedicated rehabilitation centres. The government described the rehabilitation process has having been successful with rehabilitees being given educational and vocational training, but some sources were critical of the government’s efforts. Whilst some cadres have been able to secure employment with the government or the security forces others have found difficulty in securing jobs even though provisions are in place where the government are able to cover 50% of wages for those employed in the private sector. Some former cadres remain under monitoring and some face ostracism from their own community.
Since the end of the civil war the focus of the Sri Lankan government has changed and between 2015 and late 2019 under the new government, led by President Sirisena, there were improvements in the general feeling of personal freedom within the country.
Most Tamils do not suffer persecution simply for being a Tamil but there remains some discrimination towards them and other minority groups.
Tamil Diaspora groups are important within Sri Lanka in so much as they often send remittances home, but they do not have a specific political platform or representatives within the country. It is likely that some monitoring of political diaspora groups occurs outside of Sri Lanka although this was likely to be of the more prominent members. Several sources stated that they were aware of members of such diaspora groups returning to Sri Lanka and facing no issues on return.
The Transnational Government of Tamil Eelam (TGTE) are a proscribed group in Sri Lanka due to their links with the LTTE and because they are seen as pursuing an independent Tamil homeland. The TGTE advocate for a separate Tamil state but do not have widespread support within Sri Lanka, as most Tamils have more pressing concerns such as housing, employment, return of land and accessing information about relatives who disappeared during the war. It’s possible that high profile members of the Tamil diaspora may face risk on return although the Attorney General’s Department stated that they would only be at risk if they had committed a crime within Sri Lanka and members of the Criminal Investigation Department (CID) stated that mere membership of a proscribed group would not be enough to make a person of interest.
Returnees are likely to be questioned by immigration officials especially where they arrive on an emergency travel document. They are not arrested but may face questioning about how they left Sri Lanka and whether they were aided by smugglers. If the person is found to have links to the LTTE or if wanted for previous crimes committed in Sri Lanka may face further questioning by the CID based at the airport. This process can take a long time as checks need to be made with the persons local police and there is no central police database.

[20] May 2018 DFAT report, para 5.32; November 2019 DFAT report, para 5.37.
166. Remand and bail: The Tribunal notes that the applicant has family in Sri Lanka with the potential to provide bail. He still communicates with his family. However, the Tribunal notes country information that detainees may be released on the basis of personal surety, or sometimes bail is required from a family member. It is therefore far from certain that the applicant will have to arrange bail, even if he pleads not guilty. Third, whether the applicant can arrange bail depends on the financial capacity and priorities of family members, and potentially also on whether the court requires them to attend court in person. The applicant may also have cash himself from earnings whilst in Australia. The Tribunal notes that the applicant has his parents and other relatives in Sri Lanka. It also notes that he has been in Australia and may have some disposable cash. On the evidence as a whole, the Tribunal finds that, even if the applicant pleads not guilty and the court requires more than a personal surety, he will be able to arrange bail and, if required, for a family member, to attend the court in person. Having regard to all these factors, the Tribunal finds there is no real chance of the applicant having to remain on remand for a prolonged period.
167. Conditions in detention: It has been suggested that individuals who are held in prison in Sri Lanka for anything other than a very short period of time ‘face a real chance of suffering cruel or inhuman and degrading treatment’ because of the extremely poor conditions of prisons in Sri Lanka.
168. The Tribunal accepts that the applicant faces a real chance of being detained at the airport for several hours, and then on remand for possibly a few days. The Tribunal finds on the available evidence that there is no real chance of the applicant being held in detention for more than a few days, including the period on remand before he appears before a Magistrate.
169. It is undisputed that ‘prison conditions in Sri Lanka do not meet international standards, including due to old infrastructure, overcrowding, and a shortage of adequate health and sanitary facilities. The Tribunal acknowledges that the applicant’s detention during police investigations and while on remand will involve a loss of liberty, which is one of the examples of serious harm set out in s.36(2A) of the Act. In MIBP v WZAPN, the High Court rejected the Federal Court’s finding that under s.91R(2)(a), any loss of liberty, regardless of its duration, would amount to serious harm.[21] It held that whether the likelihood of detention rises to the level of serious harm requires a qualitative judgement, including an evaluation of the nature and gravity of the loss of liberty. In the present case, the Tribunal finds that the applicant’s detention at the airport and on remand, even if he arrived on the weekend and had to wait before he could appear before a magistrate and/or if he had to await for a guarantor to appear in court, would involve only a few days in overcrowded or unsanitary conditions.
[21] MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610 overturning WZAPN v MIBP [2014] FCA 947 (North J, 3 September 2014).
170. Having regard to his treatment as a whole, including the duration of the applicant’s stay, the Tribunal finds that this does not rise to the level of serious harm, such as a threat to his life or liberty, or significant physical harassment or ill treatment, or any other form of serious harm.
171. Returnee from the west: No reliable evidence to show that the Sri Lankan authorities in fact perceive returnees from Western countries as being anti-government, or alternatively rich, or that they proceed to extort them was presented or gleaned from available country information. For completeness, the Tribunal finds that there is no real chance of the applicant being subject to persecution by the Sri Lankan authorities or others in the community, for such reasons.
172. Pending court case: DFAT advises that those charged are required to appear in court in the place of their offending, and that the frequency of court appearances varies widely. Delays can be protracted, as court cases proceed only when all members of a people smuggling venture have been located. Once again, whether the applicant remains on bail for years pending the conclusion of any court process remains uncertain and will depend on whether or not he opts to plead guilty to charges of illegal departure. However, the Tribunal finds that the expense and inconvenience of court proceedings do not amount to serious harm.
173. Penalties: DFAT has consistently stated that the Sri Lankan authorities distinguish between fare-paying passengers and the facilitators and organisers of irregular migration. DFAT reports advice from the Sri Lankan Attorney-General’s Department that no mere passenger on a people smuggling venture has been imprisoned under the I&E Act. There is no material before the Tribunal to the contrary. The Tribunal finds, on the available material, that if the applicant pleads guilty he will have to pay a fine; and that if he pleads not guilty, he will likely spend years awaiting a final court date, with the eventual outcome also being a fine.
174. Having regard to the totality of the treatment that the applicant will likely face as a person charged under the I&E Act – including possibly in a worst case scenario several days in detention, in overcrowded, unsanitary conditions; a possible requirement to post bail and comply with bail conditions (such as reporting); and the possible uncertainty/expense of a protracted court process - the Tribunal is not satisfied that he faces a real chance of serious harm amounting to persecution. The Tribunal also finds that the I&E Act applies to all Sri Lankans. It has found no persuasive evidence that it is selectively enforced or applied in a discriminatory manner. The Tribunal concludes that the Sri Lankan authorities’ investigation, prosecution and punishment for illegal departure under the I&E Act is the result of a law of general application and does not constitute persecution.
Wealthy Family
175. The Tribunal considered the applicant’s claim that he hails from a wealthy family, that his father worked for [Company 1] and his mother’s family owned a [business].
176. The Tribunal considered country information it had obtained from the DFAT Report:
Reconciliation
2.48 … In the most high-profile case, the current Chief of the Defence Staff (head of the Sri Lankan military), Admiral Ravindra Wijegunaratne, was remanded in custody on 28 November 2018 for allegedly threatening a witness and attempting to remove the lead police investigator in a case involving the abduction and murder of 11 Tamil youths by Navy personnel in Colombo in 2008 and 2009… The bodies of the 11 men, who came from wealthy families and were allegedly abducted for ransom, have never been found.
Extrajudicial Killings
4.4 In 2015, five police officers, including a Deputy Inspector General, Vaas Gunawardena, were charged with the 2013 murder of a wealthy businessman in Gampaha District (Western Province). The murder was allegedly carried out on the orders of a rival businessman. In January 2019, two businessmen, Manjula Asela and Rasheen Chinthaka, were reportedly abducted and killed by local police in Galle (Southern Province). Four police officers, including the officer-in-charge of the Southern Province Special Investigations Unit, were arrested in relation to the matter. A motive for the killings is not known. Investigations were ongoing at the time of publication.
Enforced or Involuntary Disappearances
4.9 Extortion and kidnapping for ransom was common during the war, particularly in the north and east. While they are still known to occur, their incidence has decreased considerably in the post-war period. Where extortion and kidnapping for ransom occurs, the motive is usually business-related. DFAT assesses that wealthy Sri Lankans face a low risk of extortion or kidnapping for ransom.

177. The Tribunal accepts the above Country information.
178. The Tribunal finds that the applicant does not have a well-founded fear of persecution now or in the reasonably foreseeable future, if he returns to Sri Lanka, for reason of having a wealthy family, be that real or imputed.
Mental Health Issues
179. The applicant claims that he suffers from post-traumatic stress disorder and exhibits abnormal behaviours. He also claims that he suffers from lethargy and suffers from stress and anxiety and has difficulty with his concentration and memory.
180. The Tribunal has taken a great deal of time considering the applicants claims about his mental health. It has reviewed at length all of the medical reports provided to it.
181. The Tribunal accepts that the applicant has the mental health issues referenced above and for which he is receiving treatment.
182. The Tribunal also accepts that his wife has a number of mental health issues and is receiving the most intense of treatments.
183. The Tribunal notes Country Information in relation to the healthcare situation in Sri Lanka, noting information from the Home Office Report, Country Policy and Information Note, Sri Lanka: Medical Treatment and healthcare, Version 1.0, July 2020.
184. Ironically, the Home Office Report cited the DFAT Report.
185. The Tribunal considered country information it had obtained from the DFAT Report:
Health
2.25 Sri Lanka inherited a well-developed health care system at independence. The health care system has a long record of strong performance, including in maternal and child health and infectious disease control. On 9 July 2019, the World Health Organization (WHO) announced that Sri Lanka had eradicated measles. Investment in the health sector has increased since the end of the war, and Sri Lanka currently spends about 3 per cent of GDP on health annually. The public health system offers universal free health care; however, regional disparities exist in the quality of care and facilities, particularly between urban and rural areas. Health outcomes are worse in the north and east, partly because of the delay in rebuilding destroyed infrastructure and diminution of human capital during the war. Some medicines and treatments are available only from private providers. Some specialist services are available in Colombo and district-level hospitals, including in the north and east. There are few hospitals in the war-affected interior areas of the east, and those in need of treatment must travel to district hospitals in Ampara and Trincomalee.
2.27 The government is devoting progressively greater attention and resources to mental illness. A National Mental Health Policy, adopted in 2005 and subsequently renewed in 2015, sits alongside a National Mental Health Action Plan. The Ministry of Health operates the National Institute of Mental Health in Colombo. The only state-run hospital dedicated to treating mental illness, it has 1,200 full-time staff and 1,500 beds. The National Institute of Mental Health admits over 8,000 patients annually. It operates a National Mental Health Helpline, launched in October 2018, and offered psychosocial support to those affected by the 2019 Easter Sunday terrorist attacks.
2.28 Improving access to mental health services, including at the community level, is a government priority. As part of this effort, the government has deployed cadres of mental health workers to the district level and rolled-out a Training of Trainers in Mental Health and Psycho-Social Wellbeing Programme in the Northern Province. District-level hospitals have mental health facilities and some non-governmental organisations (NGOs) (e.g. Women In Need and Women’s Action Network) provide psychosocial support services, including in Tamil-populated areas. The International Committee of the Red Cross (ICRC) provides psychosocial support to the families of missing persons, including peer-to-peer counselling in the north, east and south. The families of missing government soldiers receive some psychosocial support from the Ministry of Defence. The Office on Missing Persons (OMP, see Reconciliation), established in September 2017, will provide mental health and psychosocial care for the families of missing persons as part of its functions.
2.29 According to local sources, there is significant, ongoing need for psychosocial support in the north and east, particularly for former combatants, the families of missing persons and those affected by the 2004 Indian Ocean tsunami (which also affected people in the south and west). Despite some improvements, mental health services, overall, are considered inadequate, particularly in former conflict areas, and there remain ongoing challenges in accessing mental health care. Mental illness is not widely discussed in Sri Lankan society and carries stigma at the community level. This, in turn, deters victims from revealing and seeking treatment for mental illness. Some families seek traditional methods to “cure” mental illness, including through use of local healers.
2.30 DFAT assesses that, while there has been some improvement in the availability and quality of mental health services, they remain inadequate overall, particularly in war-affected areas, where demand is greatest. DFAT further assesses that traditional attitudes toward mental illness act as a significant barrier to treatment.
2.31 Collective trauma, inadequate mental health support and high unemployment, especially among young people, have contributed to an increase in alcohol and substance abuse, suicide, and domestic and societal violence in the post-war period. Local sources told DFAT that alcohol and substance abuse was a growing problem in the north and east.

186. The Home Office Report also cited a research report of Dr Jayamal De Silva and Dr Nadeeka Chandraratne of February 2020 which stated that commonly used medications for depression are available all over the country. And newer medications are also registered and available from private sector pharmacies.
187. Country Information indicates that medical support and medications are available in Sri Lanka. There is no evidence or claim that the applicant will personally be denied access to medical treatment or medications.
188. The absence or inadequacy of medical treatment in the country of return does not generally amount to a violation of Article 7 (of the International Covenant on Civil and Political Rights) and will therefore not generally meet the definitions of serious harm or cruel or inhuman treatment or punishment or degrading treatment or punishment.
189. The Tribunal also considered whether there is potential for persecution of the applicant because of the disability that he has acquired in Australia.
190. No submissions were offered in relation to this issue and the Tribunal has been unable to locate any country information that might support its contention. The DFAT Report alludes only to the stigma of mental illness.
191. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution now or in the reasonably foreseeable future, if he returns to Sri Lanka, for reason of his mental illness.
Cumulative claims
192. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of his connection to his distant relatives, imputed pro-Tamil or pro-LTTE political opinion, his Tamil ethnicity, his Hindu religion, as a failed asylum seeker or returnee who left Sri Lanka illegally, his family’s wealth status, his mental health issues or any other reason if he returns to Sri Lanka now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Sri Lanka. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?
193. The Tribunal has considered the applicant’s claims under complementary protection.
194. Having regard to the Tribunal’s findings of fact above the Tribunal does not accept that the applicant left Sri Lanka as a consequence of his connection to his various relatives involvement with, and/or death at the hands of the SLA, imputed pro-Tamil or pro-LTTE political opinion, his Tamil ethnicity, his Hindu religion, his family’s wealth or his mental health condition, or any other reason.
195. The Tribunal finds that the applicant would not be faced with unreasonable difficulties finding accommodation or employment in Sri Lanka if he was required to return as his family still live in Sri Lanka.
196. In view of the above findings, and on the basis of MIAC v SZQRB wherein the Federal Court held that the “real risk” test imposes the same standard as the “real chance” test, it follows that the Tribunal is not satisfied that there is a real chance that the applicant will suffer significant harm for any of the reasons claimed if he returns to Sri Lanka now or in the reasonably foreseeable future.
197. During the course of the Second Tribunal hearing (the first hearing during October 2017), a number of statements were tendered. One of those statements was of the applicant, who stated that he had formed a relationship with a woman who was also an applicant for a protection visa and that they had a child between them. The applicant claimed that these matters had made his position more vulnerable in relation to him ever returning to and living in Sri Lanka.
198. In providing evidence to the Second Tribunal, he stated that his relationship with his partner would also be a cause of persecution if he returned to Sri Lanka. When asked why by the Second Tribunal, he replied there were people against his partner and the CID had visited her mother.
199. Before the second hearing of the Second Tribunal (in June 2018), the applicant had provided a marriage certificate of his marriage to his partner, birth certificates of his two children, a copy of the subclass 790 SHEV granted to his wife, together with a statement from his wife as to their relationship and the nature of her claims for the SHEV.
200. However, the Second Tribunal did not consider this particular claim.
201. The Tribunal considered the claims of the applicant’s wife for her SHEV, which are summarised as follows:
202. The applicant’s wife claims her family was displaced when she was young. She claims they moved around often to safeguard their lives, so they did not receive a continuous education.
203. The applicant’s wife claims that when she was about [age]-years-old, she witnessed her father and uncle get taken by the Sri Lankan army while on their way to work. She claims she witnessed them get tied to a tree, covered in petrol and burnt to death.
204. The applicant’s wife claims that before her mother left to work in [Country 2] in 1998, she organised for her to be unofficially married to her first husband. At [age]-years-old, she was too young to register the marriage, so they took a photograph as a sign of the marriage. She claims that in about 2001, her mother returned and bribed someone to officially register the marriage, as she was still too young. She claims her mother did this so she would have a man to look after her.
205. The applicant’s wife claims her mother then left Sri Lanka again. She claims that on [date], her first husband took her to his mother’s house [where] she gave birth to her first child. She claims they remained there for about six to seven months, after which she, her husband and his parents moved to [another location]. She claims they moved because the area had a lot of bombing and it became unsafe.

206. The applicant’s wife claims that in about May 2004, her brother was shot dead by the Sri Lankan army while he was at the beach with [friend]s. She claims her brother’s body was not found for a number of days and that the hospital provided a report showing that he had been shot. She claims one of his friends witnessed her brother get shot by a Sri Lankan army officer and he told them what he saw when he came to their house. She claims this friend was killed three or four days later.
207. The applicant’s wife claims that her first husband went to [Country 2] for work in November 2004. She claims her second child was born on [date]. She claims her husband was killed in a work accident in [Country 2] [in] November 2005.
208. The applicant’s wife claims that in about June 2008, she and her cousin travelled to [Town 1] to collect money from a bank that her mother had sent over. She claims that local Sri Lankan army officers arrived, questioned them and took them to the army camp outside [Town 1]. She claims they were interrogated by five Sri Lankan army officers, separated and then raped separately.
209. The applicant’s wife claims she told her mother what happened and her mother returned to Sri Lanka within two weeks’ of the incident. She claims they went to the local police station to make a complaint and that the police did not register an official complaint or take her statement. She claims the police told them they could not do anything as they work under the army.
210. The applicant’s wife claims that the day after she made the complaint, Sri Lankan army officers came to their house when she was not home and arrested her mother, sister-in-law, mother-in-law, sister’s sister-in-law and another relative of her sister’s husband’s family. She claims they were taken to the army camp outside [Town 1].
211. The applicant’s wife claims that after this incident, different army officers regularly harassed them, searched their house and accused them of being LTTE members. The applicant’s wife claims that the army officers have not ransacked their house since she left Sri Lanka. She claims they ask her mother where she is and tell her mother that she should return to Sri Lanka.
212. The applicant’s wife claims that she was admitted to hospital four or five times with psychiatric issues and that on one occasion she tried to kill herself.
213. The applicant’s wife claims that in 2013, her sister was killed. She claims her niece, who is her sister’s daughter, witnessed the [incident]. She claims both of her sister’s children were present.
214. The applicant’s wife claims that shortly after her sister was killed, she received a message on her phone saying that there was a nice photograph of her sister on [social media]. She claims the photograph was of her sister [details deleted].
215. The applicant’s wife claims in around Christmas time in 2015, she received what she thought was a telephone call from her mother. She claims it was actually police officers, who threatened her to come back to Sri Lanka immediately or they might arrest her mother.
216. The applicant’s wife claims her mother has [siblings], [a number] of whom do not want to have any contact with her mother because they fear being harmed if they associate with her (the applicant’s wife’s) immediate family members.
217. The applicant’s wife claims that in July 2017, the Sri Lankan police attended her mother’s house on three separate occasions and asked for details of her husband’s name and date of birth, details of her children, demanded payment of money, threatened her mother with the issue of a court summons for her arrest, and requested a copy of her medical report from the hospital when she was assaulted and proof that she is living in Australia. She claims her mother provided them with details of her husband and children.
218. The applicant’s wife claims that [in] August 2017, the Sri Lankan police visited the applicant’s mother’s house. She claims the applicant told her that the police wanted his mother to encourage her to speak to them on the phone. She claims the applicant’s mother lives in a gated community, but the police climbed the fence, entered the compound and tortured his mother.
219. The applicant’s wife claims that later in August 2017, the police returned to the applicant’s parents’ home in Sri Lanka, pushed down the door and grabbed the applicant’s father by the throat. She claims they threatened the applicant’s parents to get her to return to Sri Lanka and present herself at court. She claims the applicant’s parents told the police that she and the applicant had separated in an attempt to distance her from their family.
220. The applicant’s wife claims these incidents have placed a lot of strain on her relationship with the applicant.
221. The applicant’s wife claims that she fears she will be harmed by the local police in [Town 1] if she is forced to return to Sri Lanka.
222. The Tribunal understands the concerns of the applicant relating to the events of July 2017. It was claimed that as a consequence of the applicant’s wife’s complaints to police about her rape and then to the Human Rights Commission, and then subsequent complaints to police in relation to assaults upon her by a Sinhalese family (neighbours) and the Human Rights Commission by she and her mother (about the treatment of her and her mother by the police in relation to the assault charges), the applicant’s own mother was assaulted by police and then his father was assaulted.
223. It was the applicant’s wife’s claim that as a consequence of what has happened to her, she has brought shame on her family. That shame has resulted in [a number] of her mother’s [siblings] cutting she and her mother off – they no longer wish to have contact with them.
224. The police have refused to assist her in a complaint against her neighbours for having assaulted her. Instead, the police have been instrumental in bringing charges against her in relation to the same incident, by reason of the neighbours having bribed them.
225. The police have relentlessly pursued the applicant’s wife to return to Sri Lanka and to face court.
226. These claims have been accepted by the department in its granting to the applicant’s wife of a SHEV.
227. The applicant is fearful that as his own parents have been assaulted by the police, and threatened in relation to his wife’s return to Sri Lanka (or non-return as the case may be) then it is a natural extension that he too will be assaulted or worse by the police if he returns to Sri Lanka, because of his wife’s refusal to return.
228. The police have his details as being married to the wife. The police have taken action against the applicant’s parents.
229. The Tribunal is mindful of the applicant’s fragile mental condition. His conditions, including PTSD and depression and anxiety.
230. The Tribunal has considered a psychologist report prepared by [Mr C]. a professional qualified to provide the clinical opinions that he has provided. The author of the report is a clinical psychologist with over 20 years’ experience in the public and private sectors and he provided a comprehensive report concluding that the applicant has had a history of trauma with diagnoses of PTSD, Depression and Anxiety. [Mr C] noted that the applicant continues to experience nightmares, recurring traumatic memories of his past, experiences poor sleep, inability to focus, headaches, little or no appetite and has no enjoyable hobbies or activities. The Tribunal has decided to give [the] report significant weight. The Tribunal accepts the observations and conclusions of [Mr C]. The Tribunal is satisfied that the applicant is psychologically vulnerable and that his vulnerability ought be a significant issue in determining the review.
231. The Tribunal accepts DFAT’s advice and found that there are penalties for leaving Sri Lanka illegally that can include imprisonment and a fine. The Tribunal accepts that if he were to return to Sri Lanka, there is a real risk that the applicant would be interviewed and questioned by the Sri Lankan authorities, as well as being detained.
232. As determined above, on the evidence before it, the Tribunal is not satisfied that the harm that the applicant faces, including being interviewed questioned by the authorities, as well as being detained is essentially and significantly related to a Convention ground. Consequently, the Tribunal finds that the applicant does not meet the refugee criterion in s.36(2)(a).
233. The applicant has grave concerns about being questioned and detained upon his return to Sri Lanka. He believes that given the police are aware of his identity as the husband of his wife, and that his own parents have been assaulted in relation to his wife’s situation, then he will be a target for detention. Further, as discussed above, the Tribunal acknowledges that the applicant, having illegally departed Sri Lanka, will be subject to being interviewed and detained.
234. Although the Tribunal has found that the applicant has no adverse profile, his psychological vulnerabilities mean that being interviewed and questioned by the Sri Lankan authorities and/or detained, in his case creates a real risk of significant harm.
235. The Tribunal has given regard and weight to DFAT’s advice that in practice, most cases of returnees who departed illegally result in a fine and not imprisonment. The Tribunal gives weight to DFAT’s advice that the Sri Lankan Attorney-General’s Department’s claim that no mere passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally. The Tribunal gives weight to the advice that fines are issued to deter people from departing illegally in the future and that the fine amounts vary from LKR 3,000 to LKR 200,000. However, the Tribunal cannot exclude the real possibility that the applicant would be questioned, potentially detained and/or imprisoned. In his case, and due to his psychological vulnerability, this amounts to significant harm as contemplated by the Act.
236. The Tribunal must consider the risk of future harm to the applicant. The Tribunal accepts, that given he departed Sri Lanka illegally, and given the claims of his wife which have been accepted by the department in giving her a SHEV, that the Sri Lankan authorities are still pursuing his wife and have been prepared to harm her mother, sister, and now his own parents, that these are all factors that might indicate an increased risk of him being targeted upon return.
237. The Tribunal considered country information as follows.
238. The UK Home Office cited a Human Rights Watch report to the effect that police use of torture against criminal suspects cannot be dismissed as a wartime phenomenon, finding that even after the decisive defeat of the LTTE the police continued to routinely engage in torture to extract confessions. It reported that police used torture and other forms of coercion as a shortcut to obtain confessions and to facilitate convictions, including for very minor alleged offences.[22]
[22] UK Home Office Country Policy and Information Note Sri Lanka: Tamil Separatism June 2017
239. The United Kingdom Upper Tribunal has found that if ‘a person is detained by the Sri Lankan security services, there remains a real risk of harm requiring international protection’.[23]
[23] GJ and Others (Post-civil war Returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) at para 356(4)
240. On the evidence before it, the Tribunal is satisfied that although the applicant has a limited adverse profile, his own personal circumstances namely his psychological vulnerabilities mean that there is a real risk of significant harm occurring to the applicant if he were to be returned to Sri Lanka. The Tribunal is satisfied on the evidence that the applicant will suffer significant harm as defined in s.36(2A). The Tribunal is satisfied that in the applicant’s case and because of his psychological vulnerabilities, being questioned, interviewed, or detained, or imprisoned by the Sri Lankan authorities amounts to significant harm as contemplated by the Act. The Tribunal is persuaded that as the perpetrators of the harm feared by the applicant are the Sri Lankan authorities, the Tribunal finds that state protection would not be available to the applicant and relocating internally within Sri Lanka would not remove the threat of harm.
241. The Tribunal is satisfied in this case that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer intentionally-inflicted significant harm that would cause him severe pain and suffering.
242. Having considered all of the applicant’s most recent claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, in the circumstances of his relationship to his wife and the claims made by her that resulted in the grant of a protection visa, the Tribunal is satisfied that the applicant will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Sri Lanka now or in the reasonably foreseeable future.
Conclusion: Refugee Criterion
243. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
244. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that he will suffer significant harm.
Overall conclusion:
245. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
246. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
247. There is no suggestion that 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. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
248. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.
Michael Hawkins AM
Member

[2021] AATA 3311

29 June 2021

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Remedies

Statutory Construction