2016844 (Refugee)

2016844 (Refugee) [2023] AATA 4351 (21 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Chellappah Ambikaipalan
CASE NUMBER:  2016844
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:James Lambie
DATE:21 September 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 21 September 2023 at 1:51pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Court and Federal Circuit Court remittals – imputed political opinion – young Tamil Hindu with suspected links with LTTE – transported Tamil passengers – questioned, assaulted and threatened by people claimed to be army or paramilitary – unlawful maritime departure and arrival – credibility – failure of recording equipment at hearing left some inconsistencies unable to be tested – benefit of the doubt – implausible claims – civil war ended by time of claimed incident – unclear why passengers of interest to authorities – supporting statement from family lawyer unreliable – country information – low risk of official harassment – request for referral for ministerial intervention – no unique or exceptional circumstances – possible for applicant to apply personally – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 36(2)(a), (aa), (2A), 65, 91R, 417, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Shrestha v MIBP [2015] FCAFC 87
SZWBH v MIBP [2015] FCAFC 88
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 23 November 2012 and the delegate refused to grant the visa on 22 August 2013.
The First Tribunal affirmed the delegate’s decision on 31 January 2015. The applicant appealed that decision to the Federal Circuit Court of Australia, which dismissed the application. The applicant then appealed to the Federal Court of Australia, which ordered, by consent, on 24 July 2015 that the Federal Circuit Court of Australia erred in summarily dismissing the proceedings, at the first Court date and without the applicant, in the manner and circumstances specified in Shrestha v Minister for Immigration and Border Protection [2015] FCAFC 87 and SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88, and that to do so was procedurally unfair.
The application was remitted to the Federal Circuit Court of Australia, which set aside the First Tribunal’s decision on 18 October 2018 and remitted it to the Second Tribunal (differently constituted), as the First Tribunal had failed to comply with s.424AA of the Act and the breach denied the applicant a procedural right that may have been significant.
The Second Tribunal affirmed the delegate’s decision on 24 June 2019. The applicant appealed that decision to the Federal Circuit Court of Australia, which set aside the Second Tribunal’s decision on 16 November 2020 and remitted it to the Tribunal as presently (and differently) constituted. The Minister for Home Affairs accepted that the Second Tribunal erred by failing to properly consider a claim of harm arising from the risk of future attacks and from the misuse of new security powers by the army against Tamils, as a result of the Easter Sunday massacres in Sri Lanka.
The applicant appeared before the Tribunal on 30 March and 29 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review and the representative attended the hearing.
RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The Tribunal has obtained the following background information from the applicant’s protection visa application forms, evidence presented to the delegate and the delegate’s decision.
The applicant is a [Age]-year-old national of Sri Lanka. He was born in [City], Uva Province and raised in [Town 1], Eastern Province in Sri Lanka.
In June 2012, the applicant travelled by boat from Sri Lanka to Australia. He arrived at Christmas Island [in] July 2012 and he has remained onshore since.
On 23 November 2012, the applicant applied for a protection visa. The application was subsequently refused by a delegate of the Minister for Immigration and Citizenship in a decision made on 22 August 2013.
On 28 August 2013, the applicant applied for merits review of the delegate’s decision.
As outlined above, the First Tribunal affirmed the delegate’s decision on 31 January 2015. The applicant appealed that decision to the Federal Circuit Court of Australia, which dismissed the application. The applicant then appealed to the Federal Court of Australia, which remitted the application, by consent, on 24 July 2015 back to the Federal Circuit Court of Australia. The Federal Circuit Court of Australia set aside the First Tribunal’s decision on 18 October 2018 and remitted it to the Second Tribunal (differently constituted).
As outlined above, the Second Tribunal affirmed the delegate’s decision on 24 June 2019. The applicant appealed that decision to the Federal Circuit Court of Australia, which set aside the Second Tribunal’s decision on 16 November 2020 and remitted it to the Tribunal as presently (and differently) constituted.
Claims:
The applicant’s claims are summarised in his protection visa application, written claims and the delegate’s decision.
The applicant claims he is of Tamil ethnicity and Hindu religion.
The applicant claims he worked for two years as a bus driver in Sri Lanka. He claims that in April 2012, he picked up Sinhalese and Tamil passengers in [Town 1] to take them to [Town 2].
The applicant claims that one week later, someone approached his boss and asked him who the passengers were. He claims they also came to his house and asked him who the passengers were. He advised he took them to [Town 2] but did not know who they were.
The applicant claims the people returned the following week while the applicant was at work. He claims they threatened him with a pistol, slapped and punched him, and questioned him about the passengers.
The applicant claims that in mid to late May, the people visited his house and his mother advised them that he was out. He claims that after this, he stayed with his aunt until he left for Australia in June 2012.
The applicant fears he will be killed or vanished, like his neighbour a year ago who was accused of supplying the LTTE, as well as harm from the authorities or their allies.
The applicant claims he does not believe that he will be protected.
The applicant claims he cannot be safe anywhere in Sri Lanka, because he has to register and these people will find him.
The applicant fears persecution on the grounds of:
·his race as a Tamil;
·his imputed political opinion as someone who opposes the government and supports the LTTE;
·his membership of a particular social group, ‘Young Tamil men in Sri Lanka’;
·his membership of a particular social group, ‘Young Tamil men suspected of having links with the LTTE’.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
(a)the applicant’s protection visa application forms, which were lodged on 23 November 2012;
(b)the applicant’s identity documents provided to the Department, being copies of his Sri Lankan passport, birth certificate and driving licence;
(c)the protection visa decision record dated 22 August 2013 (delegate’s decision), a copy of which was provided to the applicant and his representatives by the Tribunal on 23 February 2022;
(d)the application for review form dated 28 August 2013;
(e)Department file [Reference] concerning the applicant’s protection visa application, which includes all documents submitted by the applicant in support of his protection visa application, including:
·written submissions from the applicant’s previous representative dated 23 November 2012;
·a statement of claims made by the applicant dated 13 November 2012;
·copies of documents contained in the Second Tribunal, including:
othe Second Tribunal’s decision record dated 24 June 2019;
othe applicant’s representative’s written submissions dated 27 March 2019 and 26 April 2019;
othe second edition of an ‘Information Report on Sri Lanka’ prepared by Dr Lionel Bopage, Michael Cooke, Fr Pan Jordan OP, A. Ranakanthan, Chris Slee and Nalliah Suriyakumaran, published in January 2018;
ovarious news articles containing country information on Sri Lanka published in 2018 and 2019 (and on unknown dates);
oDFAT’s travel advice page for Sri Lanka, which was last updated on 26 April 2019; and
·a copy of the First Tribunal’s decision dated 31 January 2015.
(f)all documents submitted to the present Tribunal in support of the applicant’s review application, including:
·the applicant’s representatives’ written submissions dated 23 March 2023;
·letter of support from [Organisation], dated 23 March 2023;
·the applicant’s representatives’ written submissions dated 12 May 2023;
·“Statement of Truth” from [Mr A], dated 9 May 2023; and
·post-hearing submissions from the applicant’s representatives, dated 17 July 2023;
(g)all documents submitted to the Second Tribunal in support of the applicant’s review application, including (as outlined above):
·the Second Tribunal’s decision record dated 24 June 2019;
·the applicant’s representative’s written submissions dated 27 March 2019 and 26 April 2019;
·the second edition of an ‘Information Report on Sri Lanka’ prepared by Dr Lionel Bopage, Michael Cooke, Fr Pan Jordan OP, A. Ranakanthan, Chris Slee and Nalliah Suriyakumaran, published in January 2018;
·various news articles containing country information on Sri Lanka published in 2018 and 2019 (and on unknown dates); and
·DFAT’s travel advice page for Sri Lanka, which was last updated on 26 April 2019;
(h)all documents submitted to the First Tribunal in support of the applicant’s review application, including:
·written submissions from the applicant’s previous representative dated 27 January 2015;
·a copy of the applicant’s visa evidence card; and
·notes made by the interviewing Departmental officer at the onshore protection interview conducted on 16 May 2013;
(i)country information on Sri Lanka, as set out below.
Country of reference:
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:
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 discussed his claims as summarised in the applicant’s protection visa application, written claims and the delegate’s decision. He confirmed that his claims as so summarised were not in dispute. The Tribunal asked the applicant whether those claims were accurate and complete. He stated they were and that he did not need to change them.
The Tribunal noted that it had provided to the applicant and his representative a copy of the delegate’s decision and they both confirmed having received it.
[The applicant] confirmed that he first arrived in Australia [in] July 2012.The Tribunal asked him to describe the circumstances in which he decided to leave Sri Lanka for Australia. He said that from 2011, when he was about [Age] years old, he had been working as a bus driver in Sri Lanka. In 2012, he said, there was an incident which caused him to fear for his life and, because of the situation in Sri Lanka, he did not believe there was anyone to protect him. He told the Tribunal he worked for a private company which conducted a regular route between [Town 1] and [Location], which was an hour each way. He started at 7am and finished at 3,30 pm, making two return journeys a day. The first and last services were mostly for schoolchildren. There was a two and a half hour break after his first arrival at [Location] and a two hour break from 11.30am to 1.30pm in [Town 1] to allow him to go home for lunch. During these breaks he would also do the loading and unloading for the freight component of the service. This mostly consisted of cement, diesel fuel, vegetables and building materials, stacked at the back of the bus, and steel rods arranged on the floor and covered with matting. The bus seated 38 people.
[The applicant] told the Tribunal there were three checkpoints on the route, manned by personnel of the Special Task Force (STF), who were comprised of army and police. He said there was a heavy security presence because [Town 1] was controlled by government forces, while [Location] had been controlled by the LTTE. There was also a bus stop at each of these checkpoints. He said that security forces would often ride the bus from checkpoint to checkpoint. He said that the bus was occasionally pulled over at checkpoint and searched and that, usually, the search was for smuggled alcohol.
[The applicant] told the Tribunal that, on about [Day] April 2012, he was asked by his employer to drive the bus on a private hire job from [Town 1] to [Town 2]. This was a one-way service of about 35 to 40 km which took about 45 minutes. He told the Tribunal that there were about 25 passengers and, as far as he could tell, they were comprised of both Tamils and Sinhalese. He said that there were checkpoints on the route but that the bus was not stopped and that the trip was uneventful.
[The applicant] told the Tribunal that, approximately one week later, someone visited his boss seeking details about this trip. He said that his boss later told him of this. He claimed that at some time between 12.30pm and 2pm the same day, he was visited at home by two or three men. He said that he knew them to be from the army because of their motorcycle. One of the men was armed. He said that the men asked him about the journey of the previous week, asking who the passengers were, where he had taken them and whether they had any weapons. He said that he told the men where he taken the passengers but that he had no knowledge of who they were or what their bags had contained. He said that the men reacted violently to his response, pushing him to the ground and kicking him. He said that one of the men pointed his weapon at him. He said that he was crying and asking them to stop. He said that people had started gathering around that he thinks that this is what saved him. The men then left, saying words to the effect, “We are leaving now, but we will be back.” He said that, following this incident, he went to see his boss and told him what had happened. He said that he asked his boss who the passengers were, and why the authorities were so worried about them. He said that his boss told him he did not know, only that they had booked and paid for the trip. [The applicant] said that he feared the army personnel would return for him and kill him and that he went into hiding. He said that his brother told him in about May 2012 that the men had returned to the family home looking for him. It was then that he decided that he needed to leave Sri Lanka.
The Tribunal took the applicant to the statement he provided with his protection visa application dated 13 November 2012. The relevant passage of the statement reads:
About a week later [i.e., after the trip of [Day] April 2012], someone went to my boss and asked who the passengers were. They asked for my address and came to my house. They asked about the passengers and where I had taken them. I told them where I had taken them, but I knew nothing about the passengers.
They came back the next week, but I was at work. My bus was at a terminus. They took me behind a shop to question me and slapped and punched me and threatened me with a pistol. They did not tell me who they were, but their motor bike was an army bike.
The Tribunal suggested that there was an inconsistency between this statement and the account he had provided to the Tribunal, which was that he had only been visited by the men on one occasion, at his home. He said that they had come to visit him at home, but that he was not there, and they had later found him at work.
The Tribunal asked how the army personnel would assume he even knew who the passengers were. [The applicant] said his boss had taken the booking and collected the money. The Tribunal agreed that this was what he had claimed. It asked what had happened to his boss. He said that he was an elderly person and that nothing had happened to him. He agreed with the Tribunal’s suggestion that he was only the driver. He also agreed that it would have been his boss would have been told how many passengers were to travel, and where they were to be taken. The Tribunal asked why nothing would happen to his boss, who had dealt with the organiser of the trip. It asked why [the applicant] could be suspected. He said that the army wanted to know where he had dropped off the passengers exactly and came to him for that information. The Tribunal suggested that the person with all of the relevant information was his boss. He said that was right, and he knew nothing of the other details. The Tribunal suggested that, if the men who had questioned him were from the authorities, he was just not the right person to ask for the relevant details. He said that he knew the destination, so he was the right person to ask about that. The Tribunal suggested that this was all he knew, and all he would have been able to provide was that detail, which was only a tiny part of the picture. It suggested that he did not know the organiser, the purpose of the trip, the identities of the passengers, or what had been paid for the trip. He accepted that this was correct.
The Tribunal asked how many men were in the group that questioned and threatened him at the bus terminus: two, three or four? He said he could not remember. The Tribunal suggested that he would remember, because being threatened by three people is more frightening than being threatened by two people. He said that could not remember exactly, because they took him away from the terminus to a room, and as soon as they arrived there, he was assaulted and threatened. He said, in the shock, he could not tell how many men were involved. The Tribunal asked how many of them armed. He said he saw one officer holding a gun in front of him. The Tribunal asked what they said to him. He said they asked for the details of the trip, including who the passengers were, where he dropped them, and whether they had any weapons with them. The Tribunal suggested that he was able to provide the date and where the passengers had been dropped off. He agreed and said he was able to provide the drop-off place and tell them that most of the travellers had bags, but that was all he knew. He said the men kicked and threatened him, alleging that he knew more. The Tribunal asked how many times he was struck. He said they pushed him down and kicked him with their boots, and then he saw that one of them was pointing a gun at him. He said he put up his hands and asked them to stop. After some time, people had started to gather and they left. The Tribunal asked if they said anything more before they left. He said that he could not remember exactly, but it was something along the lines that they were leaving but they would come back to him about all of this. He said that it was only because the crowd had gathered that they did not take him away.
The Tribunal asked how he was able to fix the date of [Day] April 2012 so exactly. He said this was the date of the incident. The Tribunal suggested that this was not what he had claimed. It took him to paragraph 5 of his statement of 13 November 2012. He agreed that he had claimed that [Day] April 2012 was the date of the bus trip. The Tribunal asked how he had fixed that date because it was the only specific date he had provided. He said it was because of this day that he had all of the later problems. The Tribunal suggested that he did not recall the dates of the later events. The Tribunal asked if he recalled which day of the week fell on [Day] April 2012. He said he did not recall. The Tribunal suggested it was a Thursday and asked what, therefore, were the arrangements for the regular bus route. He said he could not do the regular route that day but that there were other private buses which may have done the route. The Tribunal asked at what time of the day the men came to see him. He said it was between 12.30 and 1.30pm. The Tribunal suggested that his previous evidence had been that he went home for lunch at this time. He said it was not his invariable practice, and that sometimes he had his lunch near the terminus, depending on whether his mother had his lunch ready for him. The Tribunal asked how the men would know that he would be found at the terminus. He said they knew his movements. The Tribunal asked how he could know that. He said they would know from the bus timetable. The Tribunal suggested that his evidence was that he would arrive at the terminus at 11.30 am and then go home and he would not return until 1.30 pm.
The Tribunal asked [the applicant] if he had any idea why the security forces had been looking for these passengers, given that the civil war had been over for some three years. He said he did not know, and that the security men were asking him who they were and if he could identify them. The Tribunal asked if his boss had told him of any problems he had encountered arising from the bus trip. He said his boss had only told him that he had been asked about the trip and who had been the driver.
The Tribunal asked if the men had ever subsequently attempted to contact him by telephone. He said they had not. The Tribunal suggested that they could easily have obtained it. He agreed that his number could have obtained from his boss or his fellow drivers. The Tribunal asked if any of his fellow drivers had had any problems from the authorities. He said that he drove the newest bus and was by far the youngest driver, and that this was why he was allocated the longer trips, and that this therefore was the likely reason he was targeted. He said he had not heard that any other drivers had been questioned. The Tribunal suggested that evidence was then that the security men had come to the family home in about mid to late May 2012, but he was not there. He agreed. The Tribunal suggested that his evidence was that his mother had told them that he was out and that his telephone was not working. He said that was right. The Tribunal asked if they had asked for him at his work. He said he had immediately quit his job after the incident and went to stay with his aunt. The Tribunal suggested that his previous statement was that he had only gone to stay with his aunt after the visit to the family home in May. He said that was correct. The Tribunal asked if was confirming that he did not move in with his aunt until after the visit in May. He said that was correct. The Tribunal asked if the men had never tried to contact him by phone. He said his phone was broken in the incident and he never replaced it. The Tribunal put it to him that his previous statement, at paragraph 9, was:
In mid to late May, they visited my house again. I was not there and they spoke to my mother, who told them I was out and my phone was not working. After they left, my brother called to tell me that they had been and left. Later, I went home. After that, I did not stay home at night; I stayed at an aunt’s house until I left for Australia.
The Tribunal asked how his brother was able to call him. He said his brother called him after the men had visited the home and he then switched his phone off so the men could not find him.
The Tribunal asked [the applicant] if the authorities had continued to attempt to find him. He said they had. The Tribunal asked how he knew this. He said that he had spoken to his parents after he arrived in Australia and they had told him. The Tribunal asked if he had any details. He said that he had spoken to his parents many times, and every time he spoke to them, they told him that the authorities were still trying to find him. The Tribunal asked if there was any reason that he had not previously made such a claim. He said he was not worried because he was living safely in Australia. The Tribunal suggested that his visa status was not settled and these claims, should they be accepted, were highly relevant to his application. He said he did not want to relive his experiences. The Tribunal put it to him that he had professional representation and that, if he maintained that he continued to be sought, it would be expected that this claim would be explicitly advanced.
The Tribunal asked [the applicant] why the authorities in Sri Lanka would have any continuing interest in him. He said that, once they discovered he had left the country, they would suspect him of involvement with the group on the bus. He said they were still interested in that group, and that his details would have been sent to every police station and checkpoint. The Tribunal asked why there would be such a level of interest. He said that, when they become aware he had left the country unlawfully, they would tie that to his connection to the group and relay his details all over the country. The Tribunal said it was not clear how that group was ever of interest to the authorities, or how there could be a continuing interest in it. It suggested that, for example, he had not been of sufficient interest to place under arrest. He said that they only had one opportunity and he was able to escape.
The Tribunal asked if, to his knowledge, there was anything suspicious or illegal about the group on the bus. He said there was something suspicious about them, but he was only concerned about his driving. He said that perhaps there were weapons in their bags. The Tribunal asked if he could explain why it was not safe for him to return to Sri Lanka other than the authorities showing some interest in a bus trip 12 years ago, the reasons for which are unknown. He said that the incident caused him fear and that, as a young Tamil Hindu, he could be shot at any time. He said that a similar thing happened to a neighbour of his, who was three or four years older, and who disappeared. The Tribunal asked when this was. He said it was a couple of years earlier than his own incident. The Tribunal asked if it was in 2010 or earlier. He said he could not remember. The Tribunal asked if it was during the civil war. He said he could not remember.
The Tribunal asked if [the applicant] could explain what he thought he was suspected of, other than being Tamil, Hindu and young, in which respects the Tribunal would assess the country information. He said that his job took him back and forwards through LTTE controlled areas. The Tribunal put it to him that, despite that, his evidence was that he was questioned only once. It asked if there was any suggestion that he had been involved with the LTTE. He said he was not involved with the LTTE. The Tribunal put it to him that country information is to the effect that ordinary Tamils in the north and east of Sri Lanka are at low risk of official harassment. He said that he faced special risks because the security forces were interested in him. The Tribunal asked if there was any material to support his new claims that the security forces have a continuing interest in him. He said it was impossible for his parents to obtain supporting information from the police, but he would consider whether material might come through his local justice of the peace.
Following the hearing, it came to the attention of the Tribunal that, owing to an equipment failure, the audio recording of a period of approximately one hour was irretrievably lost. The missing audio is for the period 10.15am to 11.20am, and covers the evidence described in paragraphs 50 to 52 above, compiled from the Tribunal’s notes. There is also a period in which an adjournment was allowed and the hearing room vacated, during which the recording equipment was left running.
Following the resumption of the hearing at 11.20am, as noted in paragraph 53, the Tribunal took [the applicant] to his previous statement and put some apparent inconsistencies between that statement and his oral evidence to him. Because his oral evidence, recounted in paragraph 52, is derived from the Tribunal’s notes and was not retained by the audio equipment, the Tribunal has decided to draw no inferences or conclusions from the apparent inconsistencies.
The gap in the recording was also brought to the attention of the Tribunal by the applicant’s representatives. The Tribunal afforded the applicant a further hearing, which was held on 29 June 2023. Prior to this hearing, the applicant submitted a further submission from his representative and a document titled “Statement of Truth” from a [Mr A], a Sri Lankan lawyer, dated 9 May 2023. [Mr A] claimed to be known to [the applicant] and his family for many years as their family lawyer. He claimed that, in May 2012, [the applicant]’s mother came to see him to complain that “her son was compelled to transport some young passengers to another place. Consequences to this suspicion some unknown armed group were searching her son’s whereabouts.”
[Mr A] further claimed:
Later she visited to my office and complained to me that around mid April 2022 the para-military group (Karuna-Pillayan Group) who were functioning with Sri Lankan Army visited to her house and inquiring about her son [the applicant] and his present place of residence.
I approached the authority concern and informed me, they replied me that, they have suspicion on him. Therefore they wanted to arrest and inquire her son [the applicant], in relation to his affiliation with LTTE movement. [Errors in original]
The Tribunal asked [the applicant] if he had seen the letter from [Mr A]. He said he had seen it, but that he did not understand its contents in full because it was written in English. It asked if he knew [Mr A]. He said he had met him a long time ago when he was very young. He could not recall how old he was when he met him, but said he knew [Mr A] as the man who always came when his family was buying and selling land. The Tribunal asked if his family did a lot of buying and selling land. He said his parents engaged him to transfer their land into the names of the children, including him. The Tribunal suggested that he had not previously mentioned any transfer of land. He said that, after his arrival in Australia, his parents had grown old and decided to put their land into the names of their children. The Tribunal asked how, then, he had met [Mr A]. He said he had not met him. The Tribunal asked why he had previously claimed to have met him when he was young. He said he knew of him when he was young. The Tribunal put to him that [Mr A], in his letter, claimed to be “known to [the applicant] and his family for a long time as their family lawyer.” He told the Tribunal that [Mr A] knows his family well, but that he did not know him to the same extent. The Tribunal suggested he did not know him at all. He said he had heard about him but had not met him. The Tribunal asked how he had heard about him apart the land transfer he had mentioned. He said that the land transfer took place three years ago, and that before that his parents had mentioned [Mr A]. The Tribunal suggested that his evidence was that his father was a shopkeeper and his mother was a housewife. He said that was correct. The Tribunal suggested that his evidence was also that his father was retired by the time [the applicant] finished school. He said that was right. The Tribunal asked why his parents were meeting this lawyer so often. He said that, apart from the land transfer, he did not know. He said his sister would have gone to see him to get documents certified. The Tribunal asked what documents they might be. He said certification was needed if someone was charged with a traffic offence. The Tribunal asked if this was his evidence or a guess. He said that [Mr A] was known to the family as someone who could certify documents, but that he only heard of him around the time of the land transfer. The Tribunal suggested that, if he was so well known for this function, surely [the applicant] would have met him. He said that members of his family travelled to Batticaloa to see [Mr A] as needed. The Tribunal suggested that, having not met [Mr A], he simply did not know any of these details. He said that the Tribunal had mentioned at the previous hearing that there was no evidence of any continuing official interest in him. He said that he had asked his parents who, having been unable to get any help from the authorities, had approached [Mr A] for assistance.

The Tribunal put to [the applicant] [Mr A]’s claim that [the applicant]’s mother had approached him in mid-April 2022 about inquiries being made by a paramilitary group. It asked why he had never previously mentioned this. He said his mother had gone to [Mr A] because, for safety reasons, she could not go to the police. The Tribunal took [the applicant] to [Mr A]’s claim to have approached “the authority concerned” and asked if he had any idea which “authority” that might be: the paramilitary group or someone else. He told the Tribunal he did not know. The Tribunal said that there was very little information available to it about the Karuna-Pillayan Group, other than a suggestion it was a splinter group of the LTTE. [The applicant] told the Tribunal that he had heard it was a group that separated from the LTTE. The Tribunal suggested that perhaps the Army was never after him at all. He said he did not know what was happening currently, but at the start the Karuna Group had joined with the Army. The Tribunal suggested that it might not be able to determine on the evidence who it was that made the threats against [the applicant] in 2012. He said he had come to know from his parents who was responsible. The Tribunal asked, in respect of his claims to be in fear, who it was that he feared. He said the people who pointed a gun at him were from the Army. The Tribunal asked why a breakaway Tamil group was now said to be looking for him. He said that the breakaway group had joined with the Army.
The Tribunal returned to [the applicant]’s former claims and asked if was correct to say that he feared harm on returning to Sri Lanka because the authorities would assume that he had links with the LTTE and/or because of his Tamil ethnicity. He said that he would be suspected of helping the LTTE because he is a Tamil Hindu.
The Tribunal referred to some country information provided by [the applicant]’s representative to which it would have regard, but that it also had country information from the Department of Foreign Affairs and Trade. It put to him that DFAT’s 2021 assessment was that physical violence against Tamils is not common and that ordinary Tamils in the north and east of Sri Lanka are at low risk of official harassment. It put to him that DFAT assesses that about 13% of Sir Lankans are Hindu and that they constitute a majority in the north of the country and are able to practise their faith freely throughout Sri Lanka. It said that it would consider the country information to help assess whether a person with his profile, viz., a young Tamil Hindu with perhaps suspected links to the LTTE, could be found to have a well-founded fear of persecution. He said that country information was for 2021 but that he left the country in 2012 when there were high risks, and that because of those risks he illegally left the country. The Tribunal suggested that the country information in relation to illegal departures was that, in most cases, the consequences were quite minor. He said the group who had attacked him in 2012 would attack him when he returned. The Tribunal said it would be assessing the current risks. It further suggested that DFAT was not aware of any returnees from Australia being charged under the Prevention of Terrorism Act.
[The applicant] told the Tribunal the country information related to people who had not been persecuted, but he would be arrested on return because he had left the country because of the persecution he had suffered and the authorities will focus on his reasons for leaving. The Tribunal put it to him that his claims relate to one incident in 2012. The Tribunal suggested it was now no longer clear whether the claimed perpetrators were from the Army or some other militia. He said that he recognised the motorcycle as one used by the Army.
The Tribunal received closing submissions and post-hearing submissions from [the applicant]’s representatives, discussed 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, they 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 es-on-Assessment-of-Credibility.pdf
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.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
The applicant’s claims to have been assaulted
[The applicant] has consistently maintained his claims to have been questioned and assaulted by some men in about late April or early May 2012.
The Tribunal has had regard to the following country information on Sri Lanka relevant to the applicant’s claims. His claims are, in their essence, brief. They are encompassed within the period of about a week and involve two events: that he was the driver of a bus on a short chartered trip to [Town 2] with 25 passengers on about [Day] April 2012; and that he was questioned about the trip and assaulted about a week later.
[The applicant]’s account of the short journey of [Day] April 2012 seemed generally plausible and was consistent with his previous accounts. I do not, however, accept the gloss given to it by [Mr A] that [the applicant] drove through, or within, LTTE-controlled territory, the civil war having ended in May 2009, and the LTTE’s military capability in the Eastern Theatre having collapsed in July 2007. [The applicant]’s evidence was that he started driving buses in 2011. However, I accept that there was a government security presence in the area and that there were checkpoints along the routes he drove.
[The applicant]’s account of his encounter with the group of men seeking information about this journey was broadly consistent with the accounts he had previously given. There was some inconsistency as to the preliminary inquiries or encounters he had had before the incident forming the basis of his claims. However, owing to the failure of the recording equipment at the hearing and as stated at paragraph 64 above, I have given him the benefit of the doubt in that respect.
Nevertheless, the purpose of the inquiries giving rise to the claimed incident and the affiliation of those said to be responsible for it are not clear from the evidence presented to the Tribunal. The applicant was not able to explain to the Tribunal what information he could be expected to provide in his role as an employed driver, when all of the relevant information (other than the destination) was clearly held by his employer and the organiser of the journey. The Tribunal cannot accept that, if [the applicant] were genuinely under suspicion for aiding a terrorist or criminal operation, he would not simply have been arrested and questioned at a security facility. His own evidence was that attempts had been made to locate him prior to the incident. To question and beat him in public before a growing crowd, as he claims, is not consistent with him being a suspect in a security-related investigation.
As to the affiliation of those responsible, [the applicant] maintained that he thought they were from the Army although this assessment appeared to rely very heavily only on his claimed recognition of a motorcycle. [Mr A] asserted unequivocally that [the applicant] was being sought by the Karuna-Pillayan Group, and this continued as late as April 2022. However, the country information provided by the applicant’s representatives, and the other public information available to the Tribunal, do not indicate any activity by this group after 2011.[3] The reports of activity by the Group, also known as the Tamil Makkal Viduthalai Pulikai (TMVP), or of its constituent factions, indicate that it or they no longer controlled armed cadres by February 2012.[4] The information cited is to the effect that any activity by the remaining armed cadres of the TMVP following the end of the civil war was allegedly in the nature of extortion and opportunistic criminal behaviour, although the sources concede there is limited evidence for even this after 2010. The representatives’ submission that this group, or factions of it, remain a threat relies upon the abandonment in 2020 of proceedings in respect of offences alleged to have occurred in 2005.[5]
[3]
[5] ;
As to the inquiries [the applicant] claims were made about him after this incident, the Tribunal is doubtful that they occurred as alleged, or at all. [The applicant]’s accounts contained no specifics until the production of [Mr A]’s statement. He then adopted those details. However, the Tribunal does not consider [Mr A]’s evidence to be reliable because:
·His claim to have known [the applicant] for many years was not supported by [the applicant] when questioned about it by the Tribunal, and the Tribunal does not accept that [the applicant]’s parents required the services of a lawyer over many years;
·His claim that [the applicant] was compelled to conduct the journey is not supported by [the applicant]’s own account;
·His claim that [the applicant]’s mother approached him in May 2012 for legal assistance for [the applicant] would, if accepted, be an important piece of corroborative evidence for [the applicant]’s central claims, but it was not raised by [the applicant] in his evidence to the Tribunal before the lodgement of [Mr A]’s statement, nor at any previous time, despite that claim (on [Mr A]’s evidence) being reasonably available to him;
·His positive claim that the TMVP/Karuna-Pillayan Group was responsible for the incident and continued to search for [the applicant] for a further ten years in not supported by the available country information. Further, [the applicant] made no mention of this group in his evidence to the Tribunal before the lodgement of [Mr A]’s statement, or at any previous time, despite that detail (on [Mr A]’s evidence) being reasonably available to him.
Overall, I consider [Mr A]’s statement to be lacking in credibility. I consider [the applicant]’s reliance upon it renders his overall claims less, rather than more, plausible.
In [the applicant]’s favour, the Tribunal is prepared to accept that he had an encounter with a group of men in about April or May 2012, during which those men questioned him about the bus trip and used violence against him. However, on the evidence before it, the Tribunal cannot be satisfied whether the perpetrators were authorised or rogue elements of the Sri Lankan Army, elements of a militia, or criminals acting in furtherance of their own interests. On balance, the Tribunal tends to discount the possibility that they were Sri Lankan Army personnel authorised to investigate the bus journey because the applicant’s identification of them as Army personnel is tenuous, and they did not act with the confidence and impunity expected to characterise an authorised operation. For example, a report forming part of [the applicant]’s representatives’ submissions states:
These abductions are a tried and effective method of retaining control over the Tamil population through an atmosphere of fear and deterrence. Fear prevents people from testifying against the armed forces. Its aim is to make life unbearable for Tamils so they will leave the country.
The abductors operate in the open . By never hiding their faces they emphasise their impunity and their confidence they will never be held accountable.[6]
[6] Bopage, et al, Information Report Sri Lanka (2^nd edition), January 2018, p 52
The Tribunal also considers it unlikely that the men were members of TMVP or the Karuna-Pillavan Group in view of the available county information, which does not support the continued existence of a militia or armed cadres after February 2012 (and likely much earlier). If the applicant’s claims in respect of the incident are to be accepted, the Tribunal considers the likely perpetrators to be rogue elements of the Sri Lankan armed forces engaged in an opportunistic attempt at extortion, or some other unidentified element with a similar aim.
In these circumstances, the Tribunal does not accept that [the applicant] continues to be sought by any element of the Sri Lankan security apparatus or by any militia either associated with the Government of Sri Lanka or with the capacity to work independently. Accordingly, it does not accept that [the applicant] has a well-founded fear of persecution by reason of his connection with the bus journey of [Day] April 2012, any subsequent investigation, or any other matter associated with it.
As to [the applicant]’s other claims, the Tribunal has considered them in view of the country information extracted and discussed below.
Tamils
The Department of Foreign Affairs and Trade’s latest country information report on Sri Lanka[7] reports the following on Tamils:
[7] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Sri Lanka’ (23 December 2021) at pp 18-20.
3.4 According to the most recent census (2012), Tamils are the second largest ethnic group in Sri Lanka (15.3 per cent of the population). Tamil political parties are active, with the largest coalition of parties operating under the umbrella of the Tamil National Alliance (TNA). In the 2020 parliamentary elections, the TNA won 10 seats (of a total 225) during the landslide victory of President Rajapaksa’s Sri Lanka People's Freedom Alliance (SLPFA). There are two Tamil parties in the Government’s ruling SLPFA coalition: the Tamil Makkal Viduthalai Pulikal (TMVP) (formerly known as the Karuna group), and the Eelam People's Democratic Party (EPDP), which have a combined total of three seats in the Sri Lankan Parliament. There is one Tamil cabinet minister as of November 2021: Minister for Fisheries, Douglas Devananda of the EPDP. This represents a decline in political influence for Tamils from the previous Sirisena Government.
3.5 Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs, though other sources suggest this is because many Tamils speak neither Sinhala nor English. Even the Tamil-dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil-speaking police officers and military personnel in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities. In April 2021, Sri Lanka Police announced plans to recruit 2,000 Tamil speakers for the north and east, given that very few of the mostly Sinhalese officers (with around 700 police officers working in the Northern Province and 1,100 in the Eastern Province) speak fluent Tamil. All police basic training is reportedly conducted in Sinhala limiting accessibility to most Tamils.
3.6 DFAT assesses there is no official discrimination on the basis of ethnicity in public sector employment. Rather, Tamils’ under-representation is largely the result of language constraints and disrupted education because of the war.
3.7 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.
Monitoring, harassment, arrest and detention
3.8 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 Liberation Tigers of Tamil Eelam).
3.9 Members of the Tamil community and NGOs report 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, including those related to the war, such as missing persons, land release and memorialisation events (see Civil society organisations and government critics and Media).
3.10 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 (see Liberation Tigers of Tamil Eelam).
3.11 LTTE cemeteries in the north and east were destroyed by government forces during and after the war. Some have subsequently been restored. It is illegal to commemorate the birthday of LTTE leader Prabhakaran (26 November), or Maaveerar Naal (‘Great Heroes’ Day’ in Tamil, 27 November), although some Tamils are known to defy this ban. The public display of LTTE symbols, including the LTTE flag and images of Prabhakaran, is also banned.
3.12 Tamils have been arrested in 2021 under the Prevention of Terrorism Act (PTA) for commemoration of the war (see Prevention of Terrorism Act). In May 2021, on the eve of commemoration of the end of the civil war in Mullaithivu district, the location at which various estimates suggest up to 40,000 civilians died in the closing phase of the war, authorities placed the district under strict COVID-19 quarantine isolation. According to local sources, Tamils who tried to commemorate the day were harassed or arrested by police. For example, 10 Tamils including two women were detained from 19 May 2021 until at least late July for holding a socially-distanced candle-lit vigil on a beach in Batticaloa, Eastern Province. On 19 May 2021, the Government of Sri Lanka, including President Rajapkasa, celebrated the same occasion as War Heroes Day.
3.13 DFAT assesses that surveillance of Tamils in the north and east continues, with particular surveillance of those associated with politically-sensitive issues. DFAT also assesses that physical violence against those being monitored is not common, and that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment.

The Situational Update on Sri Lanka, from the Department of Home Affairs (27 July 2023), reports:
The government has made moves towards improving relations with Sri Lanka’s Tamil community. The government has held talks with Tamil political groups, and has indicated that it intends to fully implement the 13th amendment to the Constitution, which would give more powers to the provinces over land, the police, education, health, agriculture, housing and finances. While the government continues to acquire land in the north and east to expand military camps, in June 2023 President Wickremesinghe ordered that the Department of Archaeology halt the acquisition of land in the north and east and clashed publicly with the head of the department, who later resigned, during a discussion on land claimed by Tamil private citizens but designated ‘forest land’ by the department. In August 2022, the government announced that the national anthem would be sung in Tamil as well as Sinhala at Sri Lanka’s Independence Day celebration in February 2023, reversing a decision made by the previous government to discontinue the practice. On 1 August 2022, the government published an Extraordinary Gazette lifting a ban on six Tamil diaspora organisations: Global Tamil Forum (GTF), the Canadian Tamil Congress, the Australian Tamil Congress (ATC), the Tamil Eelam People’s Federation, the Tamil Youth Organisation, and the World Tamil Co-ordinating Committee. The government also lifted a ban on 316 individuals including GTF spokesperson, Suren Surendiran [footnotes omitted].[8]
[8] Department of Home Affairs, Country of Origin Information Services Section, Situational Update Sri Lanka (27 July 2023), p 7
[The applicant]’s representatives cited parts of the DFAT report (as well as other country information), emphasising the political use of ethno-nationalism, surveillance of Tamils in the north and east, the imputation of LTTE sympathies and hyper-vigilance against resurgent separatism. The Tribunal accepts that these features exist in Sri Lanka in varying degrees. It notes, however, that the risk of monitoring, harassment or arrest appears to be strongly correlated to a perception of political activism and/or LTTE history and that, absent those perceptions, there is a low risk of official harassment for ordinary Tamils in the north and east.
[The applicant]’s risk of a real or imputed connection with the LTTE is considered further below. He has made no claim of a history of political activism, other than via the letter dated 23 March 2023 from [Organisation]. The letter states that [the applicant]’s activities with the group have been in the nature of general charitable works to the benefit of the wider Australian community. There is nothing claimed that can be identified as specific to Tamil activism, other than in proving assistance for “funeral arrangements for any Tamil refugee.” Accordingly, and also in view of the country information extracted at paragraph 94 above, the Tribunal does not consider that his membership of this group would make him the subject of any interest or concern to Sri Lankan authorities.
The Tribunal has also considered the prospect that [the applicant] faces a risk of harm by reason of his Tamil ethnicity related to the reaction to the 2019 Easter Sunday terrorist attacks, and under the Prevention of Terrorism Act, as amended or replaced.
In relation to the terrorist attacks, the Department of Foreign Affairs and Trade reported in December 2021:
The 2019 Easter Sunday suicide bombing terrorist attacks, carried out on 21 April 2019 by local Islamic extremists (National Thawheed Jammath (NTJ) and Jamaat-al Mullathu Ibrahim (JMI)) and inspired by Daesh (ISIL/Islamic State), targeted three luxury hotels in Colombo (Western Province) and three Christian churches in Colombo, Negombo (Western Province) and Batticaloa (Eastern Province). More than 250 people were killed in the bombings with another 490 injured. A Commission of Inquiry has investigated the bombings but, as at the time of publication, the Commission’s report had not been publicly released. The Catholic Church in Sri Lanka has repeatedly raised concerns about the ongoing lack of justice for victims and the Government’s handling of the investigations. The Commission’s work and broader efforts to seek accountability have become highly politicised, including due to allegations of links between intelligence personnel and the groups that carried out the attacks, and of negligence by high-ranking officials including former President Sirisena.
The Sri Lankan Government claims it has killed or apprehended all those directly involved in the 2019 Easter Sunday terrorist attacks. Nearly 2,300 individuals were arrested in connection with the attacks, up to 300 of whom reportedly remain in police custody at the time of publication. The Sri Lankan Government proscribed the NTJ, the JMI and a third local Islamic extremist group, Willaayath as Seylani (WAS), as terrorist entities. According to media reporting, in May 2021, the Sri Lankan Ministry of Defence said it had no information about any current terrorist threat in Sri Lanka …
The Government no longer restricts travel to the north and east. It removed security checkpoints on major roads in 2015, although some were re-established following the 2019 Easter Sunday terrorist attacks. DFAT understands some security checkpoints re-established in the north post 21 April 2019 have since been removed. Local sources report that roadblocks were significantly re-established in 2020-21, ostensibly to combat COVID-19 and drug trafficking. However, sources note these roadblocks are common in the north and east, and far less common around Colombo, which does not reflect relative COVID-19 risks in these locations.[9]
[9] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Sri Lanka’ (23 December 2021) at p 17
The most recent situational update from the Department of Home Affairs[10] does not cite the 2019 events as a current issue for Tamils in Sri Lanka. [The applicant]’s representatives submitted no material more current than the two reports extracted above. Accordingly, I cannot be satisfied that either the reaction to, or the perpetration of, the 2019 terrorist attacks give rise to a well-founded fear of harm on the part of the applicant.
[10] Department of Home Affairs (27 July 2023), op cit

100. The Department of Foreign Affairs and Trade reports the following on the Prevention of Terrorism Act 1979 (‘PTA’):
The PTA was enacted as a temporary measure in 1979 to counter separatist insurgencies. It was made permanent in 1982 and remains legally in force. 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. Prior to the 2019 Easter Sunday terrorist attacks, the PTA was used mainly to target those suspected of involvement with the LTTE. It was used only sporadically between 2016 and April 2019 following the then-government’s commitment to repeal and replace the PTA under HRC Resolution 30/1 (2015). During the civil war, authorities detained more Tamils under the PTA than any other ethnic group. The PTA has been used for many years to detain people in prolonged and often arbitrary detention. According to the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, in his 2017 report, 70 people had been in detention without trial for over five years and 12 had been in detention without trial for over 10 years. According to the HRCSL, as of 31 January 2018, about 15 per cent of PTA suspects had been in detention for 10 to 15 years, and about 41 per cent had been in detention for five to 10 years. As at 2021, many of these detainees are still being held.
DFAT is not able to verify the precise number of individuals currently held under the PTA. One local source estimated that 300 Muslims and 60 Tamils are being held under this legislation. A large number of Muslims were detained under the PTA following the 2019 Easter Sunday terrorist attacks. In 2021, the Sri Lankan police were still arresting Muslims in connection to the bombing. For example, in April 2021, opposition MP Rishad Bathiudeen and his brother Riyadh were arrested by CID for allegedly assisting the terrorists responsible for the 2019 Easter Sunday terrorist attacks. The brothers have claimed the arrest was political. The Government has not explained the nature of their alleged connection to the bombing. The brothers have since been released on strict conditions of bail.
The Government has used the PTA for purposes with arguably limited connection to terrorism. In May 2020, police arrested Ahnaf Jazeem, a 26-year-old teacher and Tamil poet, based on allegations that his poetry collection promoted ‘religious extremism’. In December 2021, Jazeem was charged under the PTA and released on bail. Human rights observers have reported other cases with respect to Muslims, including: Hejaaz Hizbullah, a Muslim human rights lawyer in custody since 14 April 2020 and eventually charged with an offence under the International Covenant on Civil and Political Rights (ICCPR) Act; and, Ramzy Razeek, a retired government official, detained in April 2020 for posting on Facebook about religious extremism.
The PTA has also recently been used against Tamils. Media reported a Tamil man was arrested by Eravur police in April 2021 for allegedly sharing a photo of LTTE leader Prabhakaran, while Jaffna Mayor, V. Mannivannan, was arrested by TID in April 2021 under accusations of attempting to resurrect the LTTE, allegedly because the choice of uniforms for a municipal environmental enforcement team resembled those of the LTTE. DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA.
In 2015, President Sirisena committed to repeal and replace the PTA with improved counter-terrorism legislation. This proposal, which was criticised by some human rights defenders as being as bad or even worse than the PTA, lapsed with that Government. In June 2021, the European Parliament adopted a resolution urging the EU Commission to consider temporary withdrawal of the Generalized System of Preferences preferential trade agreement from Sri Lanka, if it did not reform the PTA. In its response the Sri Lankan Ministry of Foreign Affairs rejected the claim that detention under the PTA had resulted in arbitrary detention but nevertheless promised to ‘revisit’ provisions of the Act to propose ‘necessary amendments’.
In March 2021, the Government added ‘de-radicalisation regulations’ to the PTA which allow for arbitrary administrative detention of individuals for up to two years without trial. The Government also proscribed 300 Tamil and Muslim groups and individuals allegedly ‘linked to terrorism.’ On 5 August 2021, the Supreme Court, in response to Fundamental Rights Petitions filed by several activists, issued an Interim Order suspending the operation of Prevention of Terrorism (De-radicalization from holding violent extremist religious ideology) Regulations No. 01 of 2021. These petitioners argued that individuals arrested under these new regulations could be subject to potentially indefinite detention under the guise of rehabilitation, without judicial review. A court hearing of the matter remains stalled at the time of publication.
In September 2021, during the UN Human Rights Council Session, the Sri Lankan Government announced a Cabinet sub-committee had been convened in June to ‘review’ the PTA within three months. Its report was not available at the time of publication, however, according to media reports, the committee presented its report to the President on 15 November 2021.[11]
[11] Australian Department of Foreign Affairs and Trade, op cit, at pp 42 -43

101. The most recent country information available to the Tribunal on the PTA is that:
In March 2023, the government introduced the Anti-Terrorism Act (ATA), intended to replace the Prevention of Terrorism Act (PTA). However, after widespread criticism that the proposed legislation contained a vague and overbroad definition of terrorism, and gave police and the military sweeping powers to stop, question, search and arrest anyone without a warrant if they believed they had ‘reasonable grounds’, the bill was not passed and was recalled for further consultations.[12]
[12] Department of Home Affairs, op cit, at p 5

102. The Tribunal notes that the Department of Foreign Affairs and Trade is not aware of any returnees from Australia being charged under the PTA. The Tribunal considers that, while the PTA has historically been used extensively against Tamils, there is no information before it that would suggest that [the applicant] is, or has ever been, at risk of being charged or detained under its provisions. .
Liberation Tigers of Tamil Eelam (LTTE)
103. The Department of Foreign Affairs and Trade’s latest country information report on Sri Lanka[13] reports the following on the LTTE:
[13] Australian Department of Foreign Affairs and Trade, op cit at pp 24-28.
3.39 At its peak in 2004, the LTTE had an armed force of approximately 18,000 combatants. The LTTE was proscribed as a terrorist organisation by a number of countries, including Australia. It was supported by foreign funding, primarily from the Tamil diaspora, and both voluntary and forced recruitment of Tamils. Funding from the Tamil diaspora was sometimes attained through means of intimidation and coercion, including threats against local family members and kidnapping for ransom. Within Tamil Eelam, the LTTE imposed its authority in a brutal fashion, reportedly murdering Tamil rivals and critics.
3.40 Towards the end of the war, in 2009, government security forces arrested and detained a large number of LTTE members. Most were sent to government-run rehabilitation centres. A smaller number were prosecuted through Sri Lanka’s court system. Security forces also questioned or monitored many civilians for possible LTTE activity, and for civil resistance or anti-government sentiment. Although not officially mandated, in many areas the military took a visible and active role in civilian life. The previous Sirisena Government publicly committed to reducing military involvement in civilian activities, but observers have expressed concern that this has reversed and the military’s role is growing again.
3.41 While the LTTE was comprehensively defeated, Sri Lankan authorities remain concerned over its potential re-emergence, and to separatist tendencies in general. Sources report that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members, supporters and other separatists, including ‘stop’ and ‘watch’ electronic databases. DFAT understands these databases remain active. ‘Stop’ lists include names of those individuals who have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals whom the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities.
3.42 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 the party did not win any seats, its participation demonstrated the relative openness of the electoral process. The party did not contest the 2020 parliamentary elections.
3.43 The LTTE has not carried out any attacks since 2009; however, individuals linked to the LTTE have been involved in what are alleged to be thwarted attacks. 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. Local sources told DFAT that the Tamil community had abandoned militancy and was committed to addressing its grievances through political means.
3.44 The International Truth and Justice Project (ITJP), an NGO which documents torture and sexual violence by the security forces in Sri Lanka, claims that, while ex-LTTE cadres exist, they are no longer affiliated in any way with an extant LTTE, and are subject to harassment and discrimination by the Government. The Sri Lankan Government may not accept that the LTTE is finished, arresting several Tamils in 2021 under the Prevention of Terrorism Act (PTA) for alleged LTTE-supportive behaviour (see Prevention of Terrorism Act). In July 2021, a Tamil man was deported from Qatar to Sri Lanka at the request of Counter-Terrorism Investigation Department (CTID) for allegedly promoting the LTTE. In its May 2021 decision on the refugee status of Tamil activists in the UK, the UK Upper Tribunal found that the present Government of Sri Lanka was possessed of a ‘determination to prevent any form of resurgent separatism’.
High-profile former LTTE members
3.47 ‘High-profile’ former LTTE members are individuals who held senior positions in the LTTE’s military wing and civilian administration. The LTTE’s former leadership face the highest risk of monitoring, arrest, detention or prosecution, regardless of whether they performed a combat or civilian role during the war. Although most of the LTTE’s leadership died during the war, a number surrendered or were captured and sent to rehabilitation centres or prosecuted/detained. Some former leaders may have left Sri Lanka before, during or after the war (see Former LTTE members living outside Sri Lanka). Others considered ‘high-profile’ include individuals suspected of terrorist or serious criminal offences during the war, or of providing weapons or explosives to the LTTE. Other former leaders, such as Karuna Amman (previously a leader of the TMVP, now a member of the Sri Lankan Freedom Party (SLFP), part of the President’s ruling coalition), defected and are allied with the Government.
3.48 DFAT assesses that the number of high-profile former LTTE members living in Sri Lanka is small and that the vast majority would already have come to the attention of the authorities. DFAT also assesses that any remaining high-profile former LTTE members who came to the attention of the authorities would likely be arrested, detained and prosecuted through Sri Lanka’s criminal courts and, once they had completed their prison sentences, be subjected to some form of rehabilitation. The average judicial process in Sri Lanka, including appeal, is protracted (see Judiciary). High-profile former LTTE members would likely continue to be monitored by the Sri Lankan authorities following their release from prison and completion of any rehabilitation process.
Low-profile former LTTE members
3.49 ‘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 now, particularly if suspected of having a combat function during the war, would likely be detained and may be sent for rehabilitation. 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
3.50 Some Tamils with actual or 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. Testimonies provided to ITJP show that such harassment can include: frequent visits by police, visits to family members, threats and seizure of mobile devices.

3.51 Local sources also claimed the authorities – usually undercover police officers or intelligence agents – sometimes used more subtle methods, for example inviting individuals to tea in public places and asking questions about their activities. Such 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. 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).
3.52 DFAT assesses that, while they may be monitored, Tamils with former links to the LTTE, and who are not politically active, 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
3.53 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.
3.54 Some members of the Tamil diaspora played a central role during the war, as a source of funding, weapons and other material support for the LTTE, and as political advocates for an independent Tamil state. Some Tamil diaspora groups continue to hold public demonstrations in their countries of residence for an independent Tamil state. High-profile leaders of pro-LTTE diaspora groups, particularly diaspora groups banned under Sri Lankan law, may come to the attention of Sri Lankan authorities because of their participation in such demonstrations. The Sri Lankan Government continues to assess that elements of the Tamil diaspora remain committed to a separate Tamil state. The UK Upper Tribunal in its May 2021 ruling on Tamils engaged in activities in the UK found that a range of political activities such as ‘attending meetings and demonstrations, holding flags or banners displaying the LTTE emblem, attendance at commemorative events, meaningful fundraising, any presence on social media, signing petitions’ may be perceived by the Government of Sri Lanka as threatening and it may trigger official harassment upon return.
3.55 In March 2021, the Sri Lankan Government proscribed a number of Tamil diaspora groups including the Australian Tamil Congress and the Tamil Youth Organisation (Australia), as well as a number of individuals based in Australia, the UK, Germany, Italy, Malaysia and several other countries. The Australian Tamil Congress and the Tamil Youth Organisation are not proscribed in Australia, while the LTTE remains a proscribed organisation in Australia.
3.56 Approximately 95,000 Sri Lankan Tamils live as refugees in Tamil Nadu, India.
3.57 DFAT assesses Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their security risk profile. DFAT assesses that following Tamils would be of particular interest to the authorities: 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. Those Tamils living abroad with links to the LTTE are unlikely to return to Sri Lanka voluntarily.
Family members of LTTE
3.58 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. The ITJP, based on interviews with Tamils who have fled the country and are resident overseas, states that family members of former or suspected former LTTE cadres have been subject to harassment and detention.
Societal discrimination
3.59 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 be pressured to 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. 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.
3.60 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, particularly the women, is high. Many, even those who 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. Reluctance by employers to hire known former LTTE members, for fear of inviting monitoring by the authorities, is also reported as a factor. In-country sources said that the lack of economic options experienced by former LTTE members meant that some had become paid informers for the authorities. 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 any at all.
3.61 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.
3.62 DFAT assesses that members of the LTTE suspected of serious human rights violations against other 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.

104. In his evidence, [the applicant] did not make any explicit claim that he had been suspected of any involvement with the LTTE. At the time of the incident forming the centre of his claims, the civil war had been over for some three years and the LTTE had ceased to exist as a military force. There is no suggestion in the evidence before the Tribunal that, notwithstanding his express claims, that he had in some other way been involved with the LTTE. Even had he been involved in some way with the LTTE, there is nothing before the Tribunal to suggest that he would be a person of any particular interest to the authorities should be return to Sri Lanka.
Hindus
105. The most recent country information report from the Department of Foreign Affairs and Trade reports the following on Hindus:
About 13 per cent of Sri Lankans are Hindu, including most Tamils. Hindus account for a majority of the population in the Northern Province, and practise their faith freely there and elsewhere in Sri Lanka. Local sources told DFAT that the Department of Archaeology routinely sided with Buddhist monks claiming Hindu archaeological sites in the north and east as Buddhist sites. DFAT is not aware of any organisations in Sri Lanka that systematically document violations against Hindus and, as such, cannot verify this information.[14]
[14] Ibid at p 23

106. [The applicant]’s representatives submitted material in support of their claims that the Government tended to favour Buddhists over Hindus in disputes about temple sites. However, the material presented to that effect did not appear objective or independently verifiable. The Tribunal therefore prefers DFAT’s assessment that these claims cannot be verified. It cannot be satisfied on the evidence before it that [the applicant] faces a real risk of harm in Sri Lanka by reason of his Hindu faith.
Youth
107. [The applicant] claimed that he feared persecution in Sri Lanka by reason of being “Tamil, Hindu and young.” The Tribunal notes that he was relatively young at the time he claims the relevant incident occurred, at which time he was [Age] years of age and accepts that if, as the Tribunal considers likeliest if the incident did occur, he was the victim of an opportunistic criminal attempt, then his relative youth may have been a factor. However, [the applicant] is now [Age] years of age and this claim can no longer be maintained as a risk factor.
State protection
108. The Department of Foreign Affairs and Trade’s latest country information report on Sri Lanka[15] reports the following on state protection:
[15] Ibid at p 44
5.1 Sri Lanka has no laws or government policies that hinder access to state protection on the basis of religion or ethnicity. All citizens have access to avenues of redress through the police, judiciary and the HRCSL. In practice, these avenues may be limited by linguistic barriers and by a lack of resources. Some Tamils in the north and east lack confidence in police and security officers and may therefore be less likely to use these avenues to seek redress.
Police
5.2 Sri Lanka Police is responsible for enforcing criminal law and maintaining general law and order in the country. It operates under the purview of the Ministry of Law and Order. It has a notional strength of around 85,000 members, and maintains an additional 8,100-member paramilitary Special Task Force. Like the military, most members of the Sri Lanka Police, including in Tamil-populated areas, are Sinhalese. In a historic first for Sri Lanka, in October 2021, three female Senior Superintendents of Police were promoted to the rank of Acting Deputy Inspector General as part of a series of reforms to encourage greater female advancements in the police force.
5.3 Language remains a significant barrier to effective policing, particularly in the north and east. Police recruitment is national and officers rotate throughout the country during their careers. Most police officers are Sinhalese and only around 20 per cent of police officers in the Northern Province speak Tamil. There is an ongoing effort to recruit more Tamil-speaking police officers.
5.4 The Assistance to and Protection of Victims of Crime and Witnesses Act (2015) established the National Authority for Protection of Victims of Crime and Witnesses, and a Victims of Crime and Witnesses Assistance and Protection Division within the police. Domestic and international civil society groups have raised concerns about the Act with respect to the appointment process for the National Authority, and the lack of independence of the Division from the police hierarchy, which could lead to conflicts of interest in cases of victim and witness intimidation by police.
5.5 CID officers (for example, Nishantha Silva and Shani Abeysekara) who had investigated crimes involving the military, police or the Rajapaksa family have been harassed or forced to flee the country. Their investigations have been severely criticised as politically motivated victimisation by the PCOI, which itself is criticised by observers as a politically motivated institution designed to protect the present government.

109. The Tribunal has also given consideration to the country information as to the impact of the 2022 economic and political crisis in Sri Lanka on state protection:
Police have been affected by the economic crisis at the same time as crime rates have increased. In 2022, police were required to maintain order at fuel queues, impacting on their ability to conduct other forms of policing. Reports indicate that crime, including gender-based violence and crimes against children, is increasing. In 2022, 523 homicides were reported, compared to 273 in 2019. More than 200 homicides were reported in the first five months of 2023. At the same time, government services, such as domestic violence shelters, have limited capacity to respond. In August 2022, police were short 15 billion rupees (almost AUD61 million) to pay for services and equipment already supplied. Fuel shortages, and lack of funds to buy fuel when it is available, also impacted on the ability of police to respond to complaints made to 119, the police emergency hotline.[16]
[16] Department of Home Affairs, op cit, p 9

110. The Tribunal considers that, although the impartiality and effectiveness of policing and security in Sri Lanka may be subject to searching criticism, there is insufficient evidence before it to be satisfied that [the applicant] would need recourse to state protection in respect of his claims to fear harm should he be returned to Sri Lanka in the reasonably foreseeable future.
Internal relocation
111. The Department of Foreign Affairs and Trade’s latest country information report on Sri Lanka[17] reports the following on internal relocation:
[17] Australian Department of Foreign Affairs and Trade, op cit, p 46
5.13 The Constitution provides for freedom of movement for all Sri Lankan citizens, and no official restrictions apply to internal relocation. Access to government services through the local village level office (grama niladhari office) is available to Sri Lankans who relocate; a person intending to relocate to another district only has to register himself/herself with the grama niladhari office and in the house-holders list, and obtain a police clearance.
5.14 In practice, relocation can be difficult. An absence of family connections or a lack of financial resources can limit internal relocation options. An absence of language skills can act as an additional barrier to internal relocation for those Sri Lankans for whom Sinhala is not their first language, as it may limit access to education and employment in some part of the country. Continued military occupation of private land, difficulties establishing title to land, and uncleared land mines or unexploded ordnance also complicate internal relocation, particularly in the north.
5.15 Sri Lankan security forces maintain effective control throughout Sri Lanka and individuals are unlikely to be able to relocate internally with anonymity. In particular, the Sri Lankan military, intelligence and police continue to maintain a high level of awareness of returned IDPs to the north and east. The Government has reduced the level of monitoring, but some individuals have reported that their movements continue to be observed.
5.16 Sri Lankan authorities retain comprehensive countrywide ‘stop’ and ‘watch’ lists of those suspected of involvement in terrorist or serious criminal offences (see Liberation Tigers of Tamil Eelam (LTTE)). Individuals on either list will not be able to avoid adverse attention from security forces. However, DFAT assesses that individuals seeking to relocate internally to minimise monitoring or harassment by local-level officials for petty issues can safely do so.

112. While the Tribunal does not accept that [the applicant] has established a compelling need to relocate should he return to Sri Lanka, it considers that, should he wish to relocate there is nothing to suggest it would be impracticable to do so.
Treatment of returnees and conditions for returnees
113. The Department of Foreign Affairs and Trade’s latest country information report on Sri Lanka[18] reports the following on treatment of returnees and conditions for returnees:
[18] Ibid at pp 47-50.
Exit and Entry Procedures
5.17 Unsuccessful asylum seekers, both those subject to removal or departing voluntarily, are returned to Sri Lanka either using commercial or charter flights. In some cases, they may be accompanied by security escorts. On arrival in Colombo, returnees will be presented to Sri Lankan Immigration where they will be interviewed by the Chief Immigration Officer. Depending on the circumstances of their departure from Sri Lanka and their personal history, they may be interviewed by other agencies including CID, Sri Lankan State Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI). These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Those who have departed illegally will be referred to CID at the airport and charged accordingly. Once charged they are taken to the courts at Negombo where they are bailed and released.
5.18 DFAT is not aware of returnees in 2021 being detained for matters other than illegal departure (such as, for former membership of the LTTE). However, due to COVID-19, returnees have been returned to Sri Lanka in smaller numbers overall than in previous years. According to the IOM, in 2021 up to September, there had been 107 returnees, 19 of these from Australia. Local sources also report that Tamils overseas are much less likely to return voluntarily to Sri Lanka under the current Government.
5.19 The IOM meets Australian-assisted voluntary returnees (i.e. not deportees) after immigration clearance at the airport and provides some cash and onward transportation assistance, along with legal assistance provided by the Sri Lankan Legal Aid Commission for those charged with illegal departure. Prior to departure from Australia, Australian Border Force provides removed returnees with cash to assist their return.
5.20 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. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.
Offences under the Immigrants and Emigrants Act
5.21 The Immigrants and Emigrants Act (1948) (the I&E Act) governs exit from and entry to Sri Lanka. Returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the I&E Act. Sections 34 and 35 (a) of the I&E Act make it an offence, respectively, to depart Sri Lanka other than via an approved port of departure, such as a seaport or airport, and/or without a valid passport. Returnees who departed Sri Lanka legally are not required to face a court, as no offence under the I&E Act applies. Sri Lanka has a mature people smuggling industry. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine, though DFAT is unaware of a prison sentence being given for illegal departure by itself. Facilitators or organisers of people smuggling ventures, including captains and their crew, are charged with more serious offences and typically refused bail.
5.22 Those charged are required to appear in court in the location where the matter was first heard, reportedly Negombo Courts, near the airport, which involves legal and transport costs. While the frequency of court appearances depends on the magistrate, DFAT understands that most individuals charged under the I&E Act appear in court every 3-6 months, regardless of their plea, for bail hearings. In addition to their own court hearings, those charged may be summonsed as witnesses in cases against the facilitators or organisers of people smuggling ventures. The cases of those charged with illegal departure may take years to resolve, requiring on-going court appearances (and illegal departees have no reasonable prospect of a defence). It is unclear to DFAT why such cases take so long. One source suggested that cases are taken forward in court only when all members of a people smuggling venture have been located; while another local source suggested it was simply due to the workings of the Sri Lankan justice system. For many returnees, this means they are subject to the slow processes of the Sri Lankan legal system; some returnees told DFAT that it was difficult and stressful having to return periodically to Colombo for a further hearing in a case where they were uncertain of the outcome.

5.23 While those convicted of the offence of illegal departure may theoretically face a custodial sentence, in practice, local sources suggest, a fine is always imposed and typically this fine is LKR 50,000 - 200,000 (AUD350-1400). Sources suggest those who are unable to pay the fine are permitted to pay in instalments but, if still unable, may be imprisoned for 14 days.
5.24 The severity of the fine for those charged under the I&E Act does not necessarily increase for those who have departed Sri Lanka illegally on more than one occasion. DFAT notes that, while the fines issued for passengers of people smuggling ventures are often low, the cumulative costs associated with regular court appearances over protracted lengths of time can be high. Anecdotal evidence suggests there is an acceptance within the Tamil community that illegal maritime ventures to Australia in search of asylum would be futile at this point in time.
5.25 The minimum age of criminal responsibility in Sri Lanka is 12 years. Under Sri Lankan law, anybody over the age of 12 at the time of their alleged offence is treated as an adult. Children over the age of 12 can therefore be charged with breaking the I&E Act, so long as they were 12 or older at the time of the alleged offence. No charges are imposed against children under 12 years of age or those persons who were younger than 12 at the time of the alleged offence.
5.26 DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure.
Conditions for Returnees
5.27 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 of origin or a third country. Between 2002 and September 2021, the IOM has facilitated the return of 876 Sri Lankans from Australia. 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.
5.28 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 voluntary returnees receive reintegration assistance in the form of transport 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. The IOM provides eligible returnees with livelihood assistance and makes regular visits to monitor the welfare of returnees.
5.29 Multiple local sources said that some returnees, especially those 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 CID. DFAT understands that most returnees, including failed asylum seekers, are not actively monitored on an ongoing or long-term basis. DFAT is unable to verify whether monitoring, where it occurs, is specific to former LTTE cadres. Some 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, but DFAT cannot determine if this is the case for all such returnees.
5.30 Bureaucratic inefficiencies present a significant challenge to reintegration for returnees. Refugee returnees, particularly those who returned without UNHCR or IOM facilitation, can experience delays in obtaining necessary identification documents and proof of 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. 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.
5.31 Some refugees and failed asylum seekers reported being pressured upon return to their communities, chiefly for being beneficiaries of financial reintegration assistance. Others experienced resentment upon return because they spent family funds on what proved to be a futile attempt at irregular migration. 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 significant societal discrimination following their return.
5.32 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.

114. [The applicant] claimed that he would immediately come to the attention of authorities on his return by reason of continuing investigations and/or official suspicion concerning the [Day] April 2012 bus journey and the incident of the following week. For the reasons given in paragraphs 91, 96 and 104, the Tribunal is not satisfied that he is of any security or criminal interest to Sri Lankan authorities. It does, however, accept that he may be subject to a relatively small fine as a consequence of leaving the country unlawfully. The assessment of DFAT, which the Tribunal accepts, is that, in the event he is charged, he would be entitled to bail. The Tribunal does not accept that the applicant has a well-founded fear of persecution by reason of having left Sri Lanka unlawfully.
Cumulative claims
115. 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 being a young Hindu Tamil (or any of these), or of being of criminal or security interest to the Sri Lankan authorities, 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?
116. The Tribunal has considered the applicant’s claims under complementary protection, in particular, those relating to the operation of the PTA, hypervigilance as a result of the Easter 2019 terrorist attacks, and the condition of state protection. It has also considered the extent to which the risk of any claimed or reasonably expected harm might be exacerbated by the 2022 economic and political crisis in Sri Lanka. In these and other respects, the Tribunal has noted the country information at Chapter 4 of the DFAT report.
117. The Tribunal has also considered the effect of the 2022 economic and political crisis generally, in terms of its effect on the applicant’s capacity to subsist. The economic conditions prevailing in Sri Lanka affect the population generally. The Tribunal considers that [the applicant], at [Age] with usable skills and language abilities, would not be in a position of unusual vulnerability should he return to Sri Lanka. He has made claims to have an anxiety condition but has not presented any current medical report to that effect. In any event, access to medical assistance is an issue faced by the population generally.
118. 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 is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he 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
119. 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 of the Act.
Conclusion: Complementary Protection
120. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not 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:
121. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s 36(2)(a).

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 not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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).
Request for referral for ministerial intervention

124. [The applicant]’s representatives have requested that, should the Tribunal be unable to make a favourable decision on this application, that the matter be referred to the Minister for intervention.
125. The Tribunal notes that under s 417 of the Act the Minister has a discretionary power to intervene in a matter and grant a visa to an applicant where he or she considers it would be in the public interest to do so.
126. The Minister’s Guidelines indicate the matters that should be brought to his or her attention. In particular, they refer to:
Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:
…
·compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to that person;
·exceptional economic, scientific, cultural or other benefit that would result from the person being permitted to remain in Australia;
·circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.[19]
[19] PAM3: Act – Ministerial powers – Minister’s guidelines on ministerial powers (s 351, s 417 and s 501J)

127. [The applicant]’s representatives submitted:
We also reiterate the positive benefits that the applicant has made to Australia during his time here. The Applicant has lived and worked in Australia for over 10 years and has worked throughout this time training to be [an Occupation]. This came to special use following the Queensland floods, where the applicant volunteered his skills in assisting those rebuilding their homes. He continues other charitable work with [Temple] in Queensland, and participates in the social and sporting events.
He has made many connections and friends throughout Australia during his ten years here, and it would result in significant harm to his community is he is forced to depart.

128. Although the submission does not directly refer to it, I have also considered the letter from [Organisation] described at paragraph 96 above.
129. While the Tribunal acknowledges that [the applicant] has made contributions to the community, there is insufficient material to support a conclusion that this amounts to any exceptional benefit that might result from him remaining in Australia. There is no medical or other expert evidence before the Tribunal to support a claim that he would suffer any serious and irreversible harm or hardship if the visa is not granted.
130. Accordingly, the Tribunal declines to refer this application to the Minister for ministerial intervention. It notes that it is open to the applicant to pursue that course should he wish.
DECISION
131. The Tribunal affirms the decision not to grant the applicant a Protection visa.
James Lambie
Senior Member

[2023] AATA 4351

21 September 2023

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