2205848 (Refugee)

[2024] AATA 2655

2205848 (Refugee) [2024] AATA 2655 (26 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Ms Shamili Kugathas

CASE NUMBER:  2205848

COUNTRY OF REFERENCE:                   Sri Lanka­

MEMBER:Louise Nicholls

DATE:26 June 2024

PLACE OF DECISION:  Sydney

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

Statement made on 26 June 2024 at 3:52pm

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – Federal Court remittal – race – Tamil – imputed political opinion – advocating for Tamil fishermen – assistance to the Liberation Tigers of Tamil Eelam – threats from security services – illegal departure – war crimes evidence to the United Nations – political activities in Australia – fear of torture – decision under review remitted

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 19A
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2

CASES

MIAC v SZGUR (2011) 241 CLR 594
MZXRE v MIAC (2009) 176 FCR 552
SZEPZ v MIMA (2006) 159 FCR 291

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant claims to be a citizen of Sri Lanka and he is [age] years old. He was born in a village in Sri Lanka. He came to Australia by boat as an illegal maritime arrival (IMA) [in] June 2012.

   Procedural History

2. The applicant stated that he departed Sri Lanka by boat and travelled directly to Christmas Island. The boat on which the applicant was travelling was intercepted by Australian authorities and the applicant was detained [in] June 2012. He attended an entry interview on 15 August 2012.

3. The applicant applied for a protection visa on 1 November 2012.

4. The applicant attended an interview with an officer from the Department of Immigration and Border Protection on 13 August 2013 with the applicant’s representative and a Tamil interpreter present.

5. On 27 February 2014 a delegate of the Minister for Department of Immigration and Border Protection refused to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicant met the requirements for that visa.

6. This is an application for review of that decision, and it was made on 5 March 2014. The application was made to the Refugee Review Tribunal, as it was then.

7. On 24 March 2015 the Refugee Review Tribunal (RRT) affirmed the delegate’s decision. The applicant sought judicial review of that decision and on 26 May 2016 the Federal Circuit Court quashed the decision and directed the Tribunal[1] to determine the application according to law. The Court found that the Tribunal had not properly dealt with one of the applicant’s claims for protection, that being, his claim that his livelihood as a fisherman was at risk due to the influx of Sinhalese fishermen in the applicant’s home area.

   [1] On 1 July 2015 the Refugee Review Tribunal along with a number of other Commonwealth tribunals were amalgamated with the Administrative Appeals Tribunal (AAT). Any applications on foot with the former RRT at the date of amalgamation automatically became applications in the Migration and Refugee Division of the AAT.

8. Following the remittal, the Tribunal, differently constituted, reconsidered the application and affirmed the delegate’s decision on 10 April 2017. The applicant sought judicial review of that decision and the Federal Circuit Court upheld the decision. The applicant appealed the court’s decision to the Federal Court which [in] March 2022 quashed the decision of the Tribunal, differently constituted, and directed the Tribunal to determine the application according to law. The Court found the Tribunal had not articulated the applicant’s livelihood claim or make findings on that claim. The Court found that the Tribunal had not engaged with the livelihood claim and did not make any findings on material questions of fact as to the applicant’s situation.

9. The matter is now before the Tribunal pursuant to s.19A(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

10. Where a direction is given to reconstitute the Tribunal, the AAT Act requires the reconstituted Tribunal to continue the proceeding.[2] In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted.[3] This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.

    [2] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015).

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

11. In SZEPZ v MIMA (2006) 159 FCR 291, a Full Court of the Federal Court found that, where an RRT decision has been set aside by a court and the matter remitted for reconsideration owing to a jurisdictional error, it does not follow that all the steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the material that was obtained when the decision that had been set aside was made and is obliged to continue and complete the particular review and not to commence a new review.[4]

    [4] MZXRE v MIAC (2009) 176 FCR 552 at [5] North and Rares JJ.

12. In conducting the review the Tribunal has considered the material provided to the Tribunal and the oral evidence given at the previous hearing held by the RRT.

13. The Tribunal held a hearing in the nature of a directions hearing on 16 April 2024 to ascertain what witnesses and material the applicant was seeking to rely on in relation to his review. The applicant and his current representative attended the Tribunal hearing on that date.

14. The applicant appeared before the Tribunal on 6 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages. The applicant gave evidence about his background, his migration history and his current claims for protection.

15. The applicant was represented in relation to the review.

16. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    Material before the Tribunal

17. The applicant provided several documents with his protection visa application and application for review, including:

    Departmental file [number]

    ·Applicant’s statutory declaration made on 15 October 2012.

    ·Applicant’s temporary Sri Lankan IDP identity card.

    ·Applicant’s untranslated Sri Lankan marriage certificate.

    ·Sri Lankan/UNHCR Return Form with the applicant listed as head of household.

    ·Letter from [Association 1] dated 23 July 2012.

    ·Group submissions made by the applicant’s representative received on 9 November 2012.

    Tribunal file 1404333

    ·Delegate’s decision record dated 27 February 2014.

    ·Transcript of applicant’s response to concerns set out in the delegate’s decision record.

    ·Submissions made by the applicant’s representative received on 27 May 2014.

    ·Post hearing submissions made by the applicant’s representative on 14 March 2015.

    Tribunal file 1608766

    ·Country information on the situation for Tamils in Sri Lanka compiled by a casework coordinator for Amnesty International dated 23 November 2016.

    ·Counselling report prepared by [Agency 1] dated 23 December 2016.

    ·Medical report provided by [Doctor A] on 11 January 2017 and 8 February 2017 and patient referral to [Doctor B].

    ·Submissions made by the applicant’s representative on the constitution of the Tribunal.

    Tribunal file 2205848

    ·Series of letters from the former representative regarding the constitution of the Tribunal and objections to the constitution to various Members.

    ·Submission made by applicant’s former representative 10 July 2023.

    ·Decision adopted by the Committee against Torture under Art 22 of the Convention (unrelated applicant) 4 November 2022.

    ·Referral to [Agency 1] made by the applicant’s former representative 30 June 2023.

    ·Statement by the applicant 9 April 2024.

    ·Letter from [Community Organisation 1] 12 February 2024

    ·Letters and photos from [Community Organisation 1] 5 February 2024.

    ·Letter from [Community Organisation 2] dated 13 February 2024.

    ·Letter from the [Community Organisation 3] 8 May 2024.

    ·Photos showing the applicant’s attendance at protests.

    ·Submissions made by the applicant’s current representative dated 8 May 2024.

    Other documents

18. The Tribunal has before it an affidavit filed in the Federal Circuit Court (as it was) on 24 May 2017 which sets out some details of the applicant’s claims as well as procedural information.

    CONSIDERATION

19. The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complementary protection.

20. The relevant law is set out in the attachment.

    Country of reference

21. The applicant claims he was born in, and is a citizen of, Sri Lanka. He provided copies of his Sri Lankan identity card and marriage certificate and other identity documents. He has consistently claimed that he is of Sri Lankan nationality, he spoke Tamil fluently and he was familiar with the geography and culture of the northern area of Sri Lanka.

22. Taking into account the available evidence, and noting there is no issue as to identity or nationality, the Tribunal is satisfied that the applicant is a citizen of Sri Lanka and that Sri Lanka is the receiving country for the purpose of s.36(2)(aa) of the Act.

    Background

23. The applicant is an ethnic Tamil from the village of [Town 1], [District 1] in the northeastern coastal area of Sri Lanka. The applicant is a Christian. He lived all his life in [District 1] until he departed Sri Lanka in 2012. He left school in [grade] and generally worked as a fisherman until he left Sri Lanka.

24. The applicant lost his wife and son, his parents and [number] other family members in the tsunami of 2004. After the tsunami he lived in a temporary shelter in [Town 2] until he returned to [District 1] with his [remaining] siblings in 2007.

25. The applicant told the Tribunal at the hearing he has [specified family members]. He has one brother living in Australia and one brother living in [District 1] and working as a local fisherman. His brother lost his wife and children in the 2004 tsunami and has since remarried. [One] sister lives in [District 1] and her husband is a fisherman.

26. The applicant has been living in Australia for 12 years. Earlier he worked in a factory [role specified] but because of his visa problems has not been able to work in recent years. He was initially living in Adelaide and then came to Sydney in 2015. He is living with friends in a shared house in Sydney. His [brother] helps him with financial support.

27. He spends his time cooking for his friends, he calls his sister and visits other Tamil organisations where he spends some time talking with other Tamils.

    What are the applicant’s claims?

28. The applicant’s claims are set out in the statement dated 15 October 2012 accompanying the application for protection. The applicant discussed his claims for protection with the delegate at an interview on 13 August 2013.

29. The applicant has had a number of different representatives since 2012 and they have all made written submissions on the applicant’s claims which have included a discussion of the claims as well as country information.

30. The applicant gave evidence at a RRT hearing held on 13 March 2015. The Tribunal has considered a transcript of the evidence given on that date.

31. On 9 April 2024 the applicant gave an updated statement referring to his earlier claims and his current claims based on his activities in Australia.

32. The applicant gave further oral evidence concerning his claims at the Tribunal hearing held on 16 May 2024.

33. Initially the applicant claimed if he returned to Sri Lanka he faced serious harm from the Sri Lankan CID and Sinhalese fishermen because he was a Tamil fisherman who had been [an official 1] of the [Association 1] and had spoken out in a meeting of Tamil fishermen in his local area against the Sri Lankan government decision to issue fishing permits to Sinhalese fishermen. Following the meeting the CID called him to their local camp and one of the officials threatened him with a gun and told him to cease his objections. As he had been threatened and the situation for Tamil fishermen was getting worse, he decided to leave Sri Lanka when the opportunity arose in June 2012.

34. In his later statement, and in evidence he gave to the Tribunal, he gave further details about his previous contact with the LTTE and the Sea Tigers during the civil conflict and the atrocities and human rights violations that he claimed he had witnessed during the last stages of the conflict. He stated that he had provided to a UN agency regarding his observations. He also stated that he had been involved in Tamil diaspora events and demonstrations since moving to Sydney in 2015. He claims that if he returned to Sri Lanka, he fears he will be seriously harmed by Sri Lankan authorities because of his involvement with the LTTE and the Sea Tigers in Sri Lanka, because of the evidence he has given against the Sri Lankan government to a UN agency, because of his political activities in Australia which includes criticism of the Sri Lankan government and his illegal departure from Sri Lanka.

35. While the application for review was remitted on the basis that two previous Tribunal members had not considered the applicant’s claim that his livelihood as a fisherman was at risk if he returned to Sri Lanka the Tribunal has not specifically considered this claim. It did not arise in the material provided to the Tribunal in 2024 and while the claim was not withdrawn, there was little evidence before the Tribunal to support such a claim. Given that the current evidence of the applicant that his Sri Lankan [relatives] were engaged in fishing in the [District 1] area, it appears that it would be difficult to make out that claim projecting into the future.

    Evidence and claims

36. In the applicant’s initial statement he sets out his personal history, some events which took place during the civil conflict in Sri Lanka between 2007 and 2009, details of his detention in a camp in [camp 1] IDP camp and interrogation by CID[5] while in the camp, claims about his role in the local fisherman’s [group] and conflict with authorities and Sinhalese fishermen over his objection to the grant of fishing licences to Sinhalese fishermen.

    [5] Criminal Investigation Department of the Sri Lankan Police.

37. In the applicant’s evidence to the RRT the applicant gave evidence about his family in Sri Lanka, his role in the local fishing [group] and fisherman’s organisation, the demands made of the applicant and other Tamils in the [District 1] area by the LTTE, his time in the IDP camp and return to [District 1], his role in a meeting arranged by the Army to discuss fishing licences, his repeated questioning at the local CID office and his resignation as [official 1] of a [association].

38. In the statement made on 9 April 2024 the applicant provided an updated statement setting out his current claims.

39. The applicant stated that he relied on all claims previously raised by him. He stated that he only studied up to [grade] and found it difficult to present his claims for protection. He also stated that he has suffered anxiety and tension which has interfered with the ability to present his claims.

40. He stated that he originates from [District 1] which was an LTTE stronghold during the civil war.

41. He stated that it had been 12 years since he departed Sri Lanka and his memory of Sri Lanka was not entirely clear. Memories of what he witnessed during the war continued to haunt and traumatise him. Given his visa status he has not been able to access Medicare and the psychological help he requires. He experiences bouts of severe loneliness and depression and often feels suicidal.

42. He seeks to provide clarification of his initial statement and provide more details about the work he carried out for the LTTE as [official 1] of the [association].

43. He stated he was appointed [official 1] in 2004. As [official 1] of the [association] he worked closely with the Sea Tigers division of the LTTE. After he lost his family members he spent a majority of his time with the LTTE. He organised boats for them, he organised persons to help unload the boats, persons to act as sentries at the LTTE bases and build LTTE bunkers. He also worked as a sentry at bases in [District 1]. He worked closely with various leaders of the Sea Tigers division and named those persons. He also helped during memorial events and celebrations.

44. In May 2009 along with thousands of Tamil civilians he was taken to [a named zone] at [camp 1]. One of the individuals he had worked with at the Sea Tigers unit, [Mr A], became an informant for the CID and was assisting CID identify LTTE members at the IDP camp. [Mr A] sympathised with the applicant because he lost his family in the tsunami. As they were close friends [Mr A] cleared his involvement with the LTTE after the applicant was initially interrogated. The applicant was initially questioned about LTTE operations in the area and was accused of having involvement in the Sea Tigers division. This was especially the case because of his visible scarring. However due to [Mr A’s] intervention he was released in April 2010 and returned to his village in [District 1].

45. After he was released from the IDP camp he continued to work as a fisherman and was again appointed [official 1] of the “[Association 1]”. He represented Tamil fishermen in the area. Tamils they faced many hurdles including discrimination and harassment from the Sri Lankan authorities.

46. In about April or May 2010 the Sri Lankan army organised a meeting with the fishermen in the area and told them that [number] Sinhalese fishermen will be granted permits in their area to fish. This meant that the livelihood of Tamil fishermen would be affected. The applicant voiced his concerns against this at the meeting. That night two men came to his house when he was not there and spoke with his sister and told her he had to report to the army camp in [District 1]. The next day he received a call from the CID and was reminded to come to the camp that morning at 9am. He waited a number of hours; his photograph was taken and he was told to stop opposing the army and to remember that the LTTE no longer exists. He was threatened with a gun and told to keep quiet and mind his own business. If he did not do so, he will be the next to appear on the missing persons list. He was told to resign as [official 1].

47. Despite resigning from the [association], the Sri Lankan authorities continued to interrogate him on several occasions and each time he became increasingly fearful for his safety. He was asked to report to the CID 2 to 3 times a week and he did this until around five months prior to coming to Australia. He does not remember exactly how many times he reported. On each occasion he was threatened and abused and reminded he must live under the Sinhalese authorities. The applicant knew that if he remained in Sri Lanka, he would continue to have conflict with the Sri Lankan authorities.

48. The applicant stated he had been greatly traumatised by what he had witnessed in Sri Lanka. Between 2007 and May 2009 he worked alongside the Sea Tigers division of the LTTE. He witnessed a lot of bloodshed as a result of aerial attacks including many family members. He witnessed the purposeful attacking of civilians in temporary shelters and no fire zones by the Sri Lankan government. There were countless occasions when he had to assist injured individuals. He saw the Sri Lankan military preventing them from assisting the injured and causing them to die. He also witnessed the Sri Lankan government orchestrating attacks on Tamil individuals who were lining up for food. He saw the blasting of a temporary hospital at a school in [a named town] where more than 100 people were killed. He was one of the few survivors of this attack. He has witnessed the death of thousands of Tamil civilians. There was blood and corpses and blown-up humans everywhere and these memories constantly haunt him.

1. In 2012 the [Community Organisation 2] were approaching Tamil individuals to provide evidence of any war crimes they have witnessed. He was requested by a Tamil community member, [Person A], whether he would be willing to provide evidence to the [Agency 2] as part of the international war crimes evidence project which was presented to the United Nations [Agency 3]. She was aware through word-of-mouth that he was involved with the Sea Tigers unit and had been in the area where the conflict ended. The applicant provided this evidence at the end of 2013. He provided a testimony of the war crimes committed by the Sri Lankan authorities and the genocide that occurred which included the incessant purposeful shelling of Tamil civilians and temporary structures including hospitals. The [Agency 2] coordinated the visit for United Nations [Agency 3] members to come to Sydney and he provided direct evidence to the [agency] in Sydney at the [Agency 2] office in Sydney. Present was a Tamil interpreter, two people from the [UN agency] and one lawyer from the centre. He was given a ticket as evidence of his participation but has since lost this ticket.

2. He did not provide these claims previously to Immigration or the AAT as he was only asked questions about what happened in Sri Lanka. He did not understand that it was important for his claims for protection. His current lawyer was introduced to him by [Person A] and she told his lawyer of his participation in this program. His lawyer stressed the importance and significance of this to his claim to protection and this is why he is raising this claim now. The applicant referred to the support letter from the [Community Organisation 2] dated 13 February 2024 which confirmed his participation in this evidence collection.

3. The applicant stated that he supports the aims of the LTTE and an independent Tamil state in which Tamils can live freely and not be persecuted. He stated that the Sri Lankan government operates as tyrants and there has been no accountability for the genocide that occurred to Tamils.

4. The applicant moved from Adelaide to Sydney in around 2015 and started attending annual Martyrs Day celebrations held on 27 November. He also attends [two other annual remembrance events]. He also has attended protests against the Sri Lankan government and [specified] protests held [at Location 1] [in] February 2024. He referred to photos of his participation in this protest and a support letter from the [Community Organisation 1] dated 12 February 2024. Images of his attendance have been published on the [Community Organisation 1’s] [social media] account.

5. He fears harm by Sri Lankan authorities specifically the CID and the TID because of his involvement with the LTTE during his time in Sri Lanka. Individuals that worked in the Sea Tigers unit act as spies and informants for the Sri Lankan government and he is fearful that they have since informed the government that he had extensive involvement with the Sea Tigers unit.

6. During his time in Australia, he has acted against the Sri Lankan government and provided war crimes witness evidence against them to the United Nations. He fears that given the government’s sophisticated intelligence and spies that they are aware of who has provided such evidence and are aware of his political activities in Australia. He fears he will be arrested at the airport as soon as he arrives, and he will be taken away and tortured as they will seek to obtain information from him about the movement and its members as well as his activities in Australia.

7. He fears the Sri Lankan authorities will view him as an individual who possess skills and knowledge that would be a strength to any group, and they would see him as a threat to the regime. He possesses a lot of knowledge about the movement, its operations and its members and will be interrogated by the authorities. He also has a strong political opinion against the Sri Lankan government and fears harm as a consequence of this opinion. His prolonged absence from Sri Lanka and his arrival in Colombo will alert the authorities to his arrival.

8. The applicant gave evidence at the Tribunal hearing on 6 May 2024. The Tribunal explained the reasons for the remittal of his application and advised him that evidence and material provided to the Tribunal would be taken into account in considering his application.

9. The Tribunal observed that the applicant appeared somewhat dispirited when he gave oral evidence, however he gave responsive evidence and was able to talk about his claims at the Tribunal hearing although there was a level of simplicity in his oral evidence which was not consistent with previous written statements made by him.

10. There are many possible reasons for this; the applicant gave evidence that he had a limited education and the Tribunal considers his representative would have assisted in framing his written claims. Further he has given instructions and provided evidence several times over a long period of time and has claimed that he has some mental health concerns which may have impacted on his ability to provide a detailed account of events in his oral evidence.

11. The applicant gave evidence about his background and family. He arrived in Australia by boat in 2012. He belongs to several organisations in Sydney. He belongs to a social/charitable organisation of persons who originate from the [District 1] area. There are about 30 members and they raise funds for the underprivileged. He also is a member of the [Community Organisation 3] which he joined in 2016.

12. The Tribunal discussed the previous statements made by the applicant and other material to support his claims as well as his current claims for protection. The Tribunal pointed out that in his original statement he talked about his role as [an official] of a local fishing union in his area and threats made against him by the CID. He claimed that he had been forced to resign as [official 1] of the union because he had spoken out against the issue of fishing licences to Sinhalese fishermen. The Tribunal pointed out that in that statement he had not provided detail about any of his later claims of his involvement with the LTTE Sea Tigers.

13. It noted that in later statements he stated what he had observed during the last stages of the war and contact he had with Sea Tigers. He stated he had not given these details earlier because he did not know what the effect of giving this information. He feared it might affect his siblings living in Sri Lanka. He agreed he had not provided the full details of his claim at that early stage.

14. He was later told by others that the information he provided was confidential and would not be leaked to Sri Lankan authorities. He came to know that he needed to tell the truth.

15. The Tribunal put it to him that in 2015 when he first appealed to the Federal Circuit Court one of the documents he signed gave a detailed and comprehensive account of what he claimed had happened to him in Sri Lanka. He agreed his lawyers helped him with that document. The Tribunal pointed out that the details in that document were not before the delegate or the Refugee Review Tribunal.

16. The Tribunal asked him about his contact with the Sea Tigers. He stated that after he lost his family in 2004 he was with Sea Tigers until 2009.  He stated he was the [official 1] of the local [association] and as such had a lot to do with the Sea Tigers. He stated he organised boats for them and organised sentries. He was not a fighter but helped in organising small boats to transport the fighters and supplies.

17. After the war ended some of those whose boats had been used by the Sea Tigers were unhappy and complained and then the Army became involved. When asked to explain he stated that some members did not like their boats being used and then connived with the Army and gave information about people involved with the Sea Tigers.

18. In 2010 the Army held a meeting of the [association] and he found out that Sinhalese fishermen had asked for permission to fish in Tamil areas. The applicant refused and his problems started. After that they asked his sister to ask him to come to the camp where he questioned by CID about his previous contact with the Sea Tigers. He thought some informants had told the CID about his previous involvement with the Sea Tigers. When he was first questioned, they put a pistol to his head. The Tribunal put it to him that the delegate and Tribunal had questioned some inconsistent evidence he had given about the number of times he had been questioned. He told the Tribunal he thought he had been questioned about 25 times and felt as though the CID would not leave him alone. He claimed most of his problems arose after he objected to the issue of fishing licences to Sinhalese fishermen. Later in the hearing he stated he had been called in for questioning 4 to 5 times, however, it was not clear whether he meant 4 to 5 times a week or overall.

19. The Tribunal asked him about his statement that he had observed war crimes during the civil war. He stated he was a witness to many things which happened between 2007 to 2009. In 2007 there had been lot of shelling on residential areas and bombing those areas. There was no food and he was in charge of boats transferring injured people to makeshift hospitals. He said he saw the Army shelling people for 24 hours and he had witnessed thousands of people dying.

20. When asked about the claim that he gave evidence to a UN body he was not able to identify the specific agencies or people involved but was able to give a very clear account of his experience in providing evidence to the people collecting evidence. He told the Tribunal that he came to Sydney from Adelaide in about 2013 and he described the process with some particularity. His recounting of his observations of the human rights violations had taken most of the day before this body because he had to take frequent breaks due to the distressing nature of his evidence. The people taking his evidence took notes. They contacted him two or three times after that to clarify some matters and asked him if he was available to give evidence in the future if required. He was not given a copy of his statement but was given a ticket to confirm his attendance but has since lost the ticket. He does not know what happened to his evidence but assumes it was forwarded to the UN but does not know if it was made public. At the time he was concerned that if the Sri Lankan government discovered he had given this evidence that they might put his brother in gaol but that has not happened. He stated that his brother and sister are older than him and had no contact with the LTTE so he does not think his activities would put them at risk.

21. He still worries that the Sri Lankan government will find out about the evidence he has given and together with his work with diaspora groups this will put him in danger. The Tribunal questioned how they would know he had been involved and he stated that his photograph had been taken at the [Location 1] protest and it might be sent to the CID who would investigate his current and former activities.

22. He claimed he had attended a few protests and commemoration days in Sydney and was also concerned this might put him at risk. He also stated that a video of protests has been published in the [Community Organisation 1’s] [social media] account. People from Sri Lanka have seen the video and called him to tell him they had seen him in the video. He stated he had gone to these protests despite not being sure about his visa status because so many people died, Tamils should not forget and they must talk about the things which happened in the past.

23. The Tribunal discussed the country information set out in the latest DFAT country report which had been published prior to the hearing. It noted that the report indicated that attendance at these events will not necessarily put people at risk of harm unless they are high level or very active members of the diaspora groups. The applicant disagreed and stated that the government were still arresting people involved in commemorations and protests in Sri Lanka. He referred to a recent incident reported in Batticoloa where people involved in commemoration activities had been arrested.

24. The Tribunal discussed other matters set out in the DFAT report including the current President’s expressed desire for greater inclusivity of the Tamil community and the relaxation of restrictions on commemorations. The government was reaching out to members of the Tamil community in Sri Lanka. While there were still improvements to be made the country was heading in the right direction. The report also noted that low profile members or supporters of the LTTE face a low risk of monitoring and harassment in Sri Lanka. Some groups which were previously banned have been taken off the proscribed list.

25. The applicant did not agree with the country information in the DFAT report. He noted that the Prevention of Terrorism Act had not been repealed. He claimed there was separate justice for Tamils and Sinhalese, many Tamils were missing and there has been no accountability for the missing. He claimed that persons from foreign missions or NGO’s were not allowed in the north. The Tribunal put it to him that this was not correct, and the evidence clearly indicated that there was freedom of movement in the north despite a continued military presence. The applicant stated the fishing community was still affected and that there was a checkpoint near his old home near the beach in [Town 1].

26. The applicant’s representative made several submissions on the claims made by the applicant and the country information referred to by the Tribunal. She submitted that the country information in the DFAT report was contradicted by other reports and she claimed that DFAT were not entirely objective in its analysis of the current situation.

27. As far as she was aware,  the evidence the applicant gave to the UN was collated as part of a class action. She submitted that it is possible that the Sri Lankan government may be aware of who gave that evidence in 2013/2014.

28. She submitted that the Tribunal when the applicant’s profile was considered cumulatively, he would face a real chance of serious harm if he returned to Sri Lanka.

    Assessment of claims

29. The Tribunal accepts that the applicant is [an age]-year-old Tamil male and is a Christian. It accepts he was born and grew up in [Town 1] which was a village in the [District 1] of north-eastern Sri Lanka and that after he left school he worked as a fisherman in his local area.

30. The applicant has consistently claimed that he lost many family members, including his wife and son in the 2004 tsunami and the Tribunal accepts this evidence.

31. The Tribunal accepts that [District 1] was an LTTE stronghold before the end of the civil war in May 2009.

32. The evidence before the Tribunal indicates that he has sought medical and psychological advice for a variety of mental health conditions. He has been seen by counsellors from the [Agency 1] counselling organisation but has not been able to access Medicare or psychological help recently due to his visa status.

33. The Tribunal accepts the applicant’s evidence that he was the [official 1] of two local [associations] from 2004 until 2009. He gave some specific details about the nature of these organisations and where his branch fitted into a larger [association].

34. The Tribunal accepts that the applicant had contact and involvement with the LTTE Sea Tigers from the date he returned to his village after the 2004 tsunami until the time that the applicant left [Town 1] in April 2009. He initially claimed that in this role he was forced to carry out LTTE instructions from time to time and helped the LTTE during Martyrs Day commemorations and ensured other fishermen attended these events and paid taxes. He confirmed this in his evidence to the RRT.

35. In the affidavit filed in support of his application for judicial review in 2015 the applicant stated that his fishing shed in his village was close to the Sea Tigers camp and during the LTTE controlled period he had to pay taxes and provide his vehicle or boat for their use whenever ordered by them like the other fishermen and businessmen in the area.

36. In his later statement and in his oral evidence, he claimed that he was involved with the Sea Tigers and was heavily involved in organising boats for the transfer of fighters and injured persons, organising sentries and building bunkers. In his later statements he did not claim that he was forced to undertake these roles.

37. The Tribunal considers that the applicant did have contact with the Sea Tigers in his role as [official 1] of the local fishermen’s [association] and due to his occupation as a fisherman in beach area of [Town 1 variant]. It accepts that he would have had no choice but to provide his boat and other assistance as required by the LTTE during the period when they controlled that area. This is consistent with country information which indicates that all residents of LTTE controlled areas were expected to provide support to the LTTE during the conflict. The most recent Department of Foreign Affairs (DFAT) country report on Sri Lanka[6] notes that:

    3.93 DFAT is unable to determine how many Tamils had connections to the LTTE. In-country Tamil sources told DFAT that ‘everybody’ in the north-east had a connection with the LTTE of some sort, through friends or relatives who were part of the LTTE, through interactions with the LTTE administration or through being LTTE members themselves, including people who were forcibly recruited. These connections are strongest in the Vanni region, where the war was concentrated in the final stages, and which was an LTTE redoubt. According to in-country sources, the population in Vanni had no choice other than to work for the LTTE, whether in a military or administrative capacity. In-country sources reported that people in Batticaloa, which the LTTE controlled, engaged with the LTTE administration as a matter of course – they said they could not avoid the LTTE, whether they liked it or not.

    [6] DFAT Country Information Report Sri Lanka May 2024

38. The Tribunal considers that the applicant’s later statements and evidence was somewhat exaggerated and were intended to indicate that he had been heavily involved with the Sea Tigers and that such involvement would put him at risk of serious harm from the Sri Lankan authorities if he returned to Sri Lanka. However, the Tribunal does not accept that he was a member or a combatant of the LTTE but rather was a compliant local resident who followed LTTE instructions while they were in control.

39. The Tribunal accepts that the applicant observed the shelling of civilians and the consequent death and injuries of many individuals during the civil war particularly in the later stages of the war when the Sri Lankan Army were closing in on the LTTE in the [District 1] area. It accepts he was a witness to shelling and bombing attacks on hospitals and health centres. In particular he gave evidence he was involved in the attempted evacuation of injured civilians from the beach by [Agency 4] and the shelling of those civilians by the Sri Lankan Navy in April 2009 and was aware of the consequent death of 100 people and injuries to 50 others. The Tribunal also accepts that he was injured by shelling during that incident. He claimed and the Tribunal accepts that he was traumatised by his experiences and that he is still affected by these memories.

40. The Tribunal accepts that the applicant left the [District 1] area with some of his family members and were taken to the [camp 1] which was controlled by the Sri Lankan Army towards the end of the civil war. It accepts the applicant was questioned by the CID while he was resident in the camp and asked about whether he had any involvement in the LTTE. He was released from the camp in April 2010. He and his family members returned to their village where they found their house had been destroyed. Their house was rebuilt with the assistance of the [Agency 4].

1. The applicant claims he was released from the camp without being mistreated despite his work with the Sea Tigers through the intervention of his friend and CID informant, [Mr A]. The applicant did not raise this claim until he provided a statement in 2024. The Tribunal considers it unlikely that his release was facilitated by the intervention of [Mr A] but accepts it could possibly be true. In any event, the applicant was released and the Tribunal considers his release indicated that the Sri Lankan authorities were satisfied that he was not an LTTE combatant or member and had not participated in any significant way to the LTTE during the civil war other than for providing the assistance that all Tamils in LTTE controlled areas were expected to provide during that period.

2. The Tribunal accepts that the applicant continued to work as a fisherman in [District 1] and was appointed as the local [official 1] of the [Association 1] which was one [part] of a larger [association]. It accepts that he attended a meeting of the [association] members and the Sri Lankan Army and that he voiced objections to the proposed issue of fishing licences to [number] Sinhalese fishermen. In his initial statement he did not specify the date this meeting took place but told the RRT it took place in 2010, in the affidavit attached to his application for judicial review he gave fairly extensive detail about the reasons for the calling of the meeting and the persons involved in that meeting. In that document the applicant stated that the meeting took place in 2012. In the latest statement the applicant stated the meeting took place in April or May 2010.

3. The fact that there is some discrepancy about the date of the meeting might indicate that the applicant is either not being truthful about the meeting and its aftermath or that he has not been able to accurately recall when that meeting took place. Having heard the applicant give evidence and noting that this claim has been consistently made throughout the application and review process the Tribunal considers that the applicant does not have an accurate recall of the date of this meeting. However, it does accept the meeting took place but notes that he has claimed it took place in 2010 on a number of occasions. The applicant departed Sri Lanka by boat in 2012. The Tribunal accepts that the applicant voiced his objection at the issue of fishing licences to Sinhalese fishermen at the meeting and that following his objection he was called to the CID camp, questioned and threatened with harm if he continued to voice his objections. It accepts that he resigned after being told to resign or he would be seriously harmed.

4. He claimed and the Tribunal accepts that he was called into the CID several times after he was initially questioned and warned. There was some concern by the delegate and previous Tribunal Member that there was some inconsistency in the number of times the applicant had stated he had been questioned. The Tribunal accepts that the applicant does not have a precise recall of exactly how many times he had been questioned and does not consider that the inconsistency is significant. It accepts that the applicant was called into the CID several times and he found the interest of the CID quite intimidating and, together with economic factors, this led to his decision to depart Sri Lanka by boat.

5. The Tribunal, taking account of the letter provided by the [Community Organisation 2], accepts that in 2013 the applicant was approached by members of [their organisation] and asked if he would give evidence to the [Agency 2] of his experiences in Sri Lanka during the civil war.

6. The applicant stated in writing and in his oral evidence that he travelled to Sydney from Adelaide and spoke with persons who were collecting evidence on behalf of an agency and the evidence was to be presented to one of the UN bodies. The applicant stated in his statement that he gave evidence to [another UN agency] but neither he or his representative could clearly identify the name of the agency which took his evidence, what took place after he provided his evidence and whether the evidence was included in a report given to one of the UN agencies reporting on the civil war in Sri Lanka. However, the Tribunal questioned the applicant at some length about his experience and formed the view that he had given accurate and truthful evidence about the process of giving evidence in Sydney. It accepts that he had observed many civilians dying and being injured in the later stages of the war and that his personal experience was quite traumatic. He described seeing shelling and bomb blasts, human remains and attacks on non-combatants. It has also considered country information set out later in this decision which notes that the [agency] has undertaken a project to collect and investigate evidence of human rights violation during the civil was in Sri Lanka. This is consistent with the evidence provided by the applicant.

7. The applicant provided a letter from the [Community Organisation 2] dated 13 February 2024 which supports his evidence. The author of that letter stated that the applicant liaised with [their organisation] to give evidence of war crimes committed by all parties during the civil war in Sri Lanka to the [Agency 2]. The applicant was also referred to the investigators from the UN [agency] who visited Australia in November 2014 to meet with witnesses to take statements mandated by the [Agency 3].

8. The Tribunal accepts that the applicant met with representatives of the [UN agency] in 2014 and that he spent the day giving evidence about his observations and experiences in the later stages of the civil war. The Tribunal notes the country information which indicates that the [Agency 2] was engaged in collecting evidence regarding war crimes and human rights violations in Sri Lanka. In its fact sheet on the project[7] it noted

   ….

   [Details deleted.]

   [7] [Details deleted.]

9. There is no evidence before the Tribunal which indicates what happened to the applicant’s evidence. In the latest report of the United Nations [agency] the report refers to its continuing work on accountability. The report notes that the [agency] was requested to [investigate the civil war period] in Sri Lanka. The report notes that

   [Details deleted.][8].

   [8] [Source deleted.]

10. The report discusses the continuing work of [the UN agency] in investigations to address gaps in factual basis of some violations as well as linking material to violations and crimes to specific individuals. It also states that it places a high priority on victim centric approaches and is acutely aware of the real threats facing those speaking out about violations of the past. Its approach has been to assess the level of threat and risk of harm to victims, witnesses and other persons engaged with them.

11. The Tribunal accepts the applicant’s evidence that he has attended a number of protests and commemorations organised by Tamil diaspora groups in Sydney since 2016. This evidence is supported by a letters from [Community Organisation 3] dated 8 May 2024 and a letter from the [Community Organisation 1] dated 12 February 2024. The Tribunal accepts that he has attended annual Martyr’s Day commemorations on 27 November each year, [and two other annual remembrance events]. It accepts he attended a protest [at Location 1] [in] February 2024 and his photograph was included in a [social media] entry by the [Community Organisation 1] dated [in] February 2024.

100.   The evidence before the Tribunal indicates, and the Tribunal accepts, that the applicant left Sri Lanka by boat without a Sri Lankan passport. The Tribunal accepts that the applicant departed illegally as he did not have a passport when he departed. DFAT[9] reports

[9] DFAT Country Information Report Sri Lanka May 2024.

5.36 The Immigrants and Emigrants Act (1948) (the I&E Act) governs exit from and entry to Sri Lanka. Returnees who departed Sri Lanka irregularly by boat are considered to have committed an offence under the I&E Act (1948). Sections 34 and 35 (a) of the I&E Act (1948) make it an offence, respectively, to depart Sri Lanka other than via an approved port of departure and/or without a valid passport. No offence under the I&E Act (1948) applies for returnees who departed Sri Lanka legally. It is not a crime for a Sri Lankan citizen to seek asylum abroad.     

Does the applicant meet the refugee criterion?

101.   Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is satisfied that if the applicant returns to Sri Lanka now or in the foreseeable future he faces a real chance of persecution for reasons of his perceived anti-government political opinion.

102.   The Tribunal accepts that the applicant is a male Tamil from the [District 1] area of Sri Lanka and that during the civil war he had contact with and assisted members of the LTTE. However, for reasons set out earlier in this decision the Tribunal considers that the contact and assistance he gave the LTTE was of the same nature as other civilians located in LTTE controlled areas during the civil war, that is, they had no choice but to comply with LTTE directions and demands. The Tribunal notes that the applicant was released from an IDP camp without being arrested, detained or mistreated for any LTTE connections. The Tribunal considers that at the time of release the Sri Lankan authorities had no adverse interest in the applicant for any real or perceived LTTE connections. The Tribunal does not consider that if the applicant returned to Sri Lanka he would face serious harm for reasons of being a Tamil male from the north who had contact who had provided low level assistance to the LTTE in LTTE controlled areas during the civil war.

103.   The Tribunal accepts that in or about 2010 the applicant came to the notice of Sri Lankan authorities due to his involvement in a local [association] and because of his strong voiced objections to the issue of fishing licences to Sinhalese fishermen in what had traditionally been Tamil fishing areas. At the end of the civil war fishing licences and the encroachment of Sinhalese fisherman in Tamil fishing territory became a sensitive subject and tensions arose as more Sinhalese fishermen were granted fishing licences. Many in the Tamil community lost their traditional fishing livelihood with areas being used by Sinhalese fishermen with the assistance of the Sri Lankan military[10]. The Tribunal accepts that the Sri Lankan authorities were monitoring the applicant from 2010 due to his profile in the Tamil fishing community and because of the objections he had raised against Sinhalese fishermen being granted fishing licences in the [District 1] area. However, given the time which has now passed since he was involved in the [association] the Tribunal does not accept that the applicant would face a real chance of serious harm for either his previous profile or activities if he returned to Sri Lanka now or in the foreseeable future.

[10] Endless War: The destroyed land, life and identity of the Tamil people in Sri Lanka Oakland Institute 7 March 2021.

104.   The Tribunal claims that he had mental health issues in the past and he provided reports from [Agency 1] and a medical practitioner which refer to depression and anxiety. He has not provided any current medical reports or other evidence, however, the Tribunal accepts that the applicant was suffering from loneliness, depression and anxiety and there is nothing to suggest that these conditions are being treated or have resolved. There is no country information before the Tribunal which might suggest that a person with the mental health conditions described by the applicant would face serious harm or be targeted for reasons of being a person with those mental health conditions.

105.   The Tribunal accepts that if the applicant returns to Sri Lanka he will travel on a temporary travel document as there is no evidence that he is a Sri Lankan passport holder. DFAT notes

5.38 On arrival at Colombo Airport, failed asylum seekers go through immigration, where their identities are verified. For returnees with a valid passport, this process is swift; for those returning on a temporary travel document, the process will take longer. According to in-country sources, failed asylum seekers returning on charter flights were processed much quicker, as their identities had been verified in advance.

5.39 Depending on the circumstances of their departure from Sri Lanka (i.e. if they departed legally or illegally), personal history (i.e. if they have a criminal background in Sri Lanka) and whether they are travelling on temporary travel documents, failed asylum seekers may face further questioning from Sri Lankan Immigration, the SIS, Navy Intelligence (SLNI) and the police (CID). These agencies check travel documents and identity information against immigration and intelligence databases and records of outstanding criminal matters. This process should identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. DFAT is not aware of recent returnees being mistreated during this process.

…5.41 Once their identities have been established by immigration, failed asylum seekers who departed Sri Lanka illegally are escorted to an immigration office at the airport for further questioning; this typically takes between 30 and 45 minutes. They are then transferred to the SIS and SLNI for questioning. This is a longer process; the SIS and SLNI are specifically interested in information about the organisers and facilitators of the illegal venture in which they took part. Once intelligence agencies have completed questioning, these returnees are transferred to the CID for further questioning and then charged with breaking immigration law.

….

5.47 DFAT is not aware of failed asylum seekers being subjected to mistreatment during processing at Colombo Airport and subsequent court hearings.

106.   With respect to offences under the Immigrants and Emigrants Act DFAT notes that

5.48 Penalties for breaking the I&E Act (1948) by leaving Sri Lanka illegally can include imprisonment of up to five years and a fine, although DFAT is unaware of a prison sentence being given solely for illegal departure. While passengers of illegal maritime ventures are bailed and released, those identified as being complicit in the organisation of a venture are charged with more serious offences and typically refused bail and remanded in custody.

….

5.50 While people convicted of the offence of illegal departure may theoretically face a custodial sentence, in-country sources told DFAT that, in practice, a fine was always imposed. At the time of publication, this fine was LKR50,000 (approximately AUD230). The severity of the fine does not increase for those who have departed Sri Lanka illegally on more than one occasion. The fine can be paid in up to three instalments. According to in-country sources, people were remanded for up to 14 days if unable to pay this fine. DFAT is unable to verify how prevalent detention in such circumstances is – the decision is at the discretion of the individual magistrate. Sri Lanka also imposes a five-year travel ban on people charged with illegal departure.

107.   The Tribunal accepts that if the applicant returned to Sri Lanka he would be questioned at the airport as an illegal departee and may be convicted of illegal departure. It does not accept he would face serious harm for reasons of illegal departure on its own.

108.   The Tribunal accepts that the applicant has given evidence of his experiences during the later stages of the civil war which involved the shelling, bombing and consequential death of Tamil civilians. The Tribunal also accepts that the applicant has been involved in activities arranged by Sri Lankan diaspora groups which advocate against the government of Sri Lanka and could be described as pro Tamil and possibly pro separatist activities.

109.   The UK Upper Tribunal noted in its guidance decision in of KK and RS (sur place activities: risk) Sri Lanka [2021] UKUT 130 (IAC), “Whilst there is limited space for pro- Tamil political organisations to operate within Sri Lanka, there is no tolerance of the expression of avowedly separatist or perceived separatist beliefs.’ (paragraph 536(3))”. The Tribunal held that the Sri Lankan government will generally have obtained information on a person travelling on a travel document on the following matters

·i. whether the individual is associated in any way with a particular diaspora organisation;

·ii. whether they have attended meetings and/or demonstrations and if so, at least approximately how frequently this has occurred;

·iii. the nature of involvement in these events, such as, for example, whether they played a prominent part or have been holding flags or banners displaying the LTTE emblem;

·iv. any organisational and/or promotional roles (formal or otherwise) undertaken on behalf of a diaspora organisation;

·v. attendance at commemorative events such as Heroes Day; vi. meaningful fundraising on behalf of or the provision of such funding to an organisation;

·vii. authorship of, or appearance in, articles, whether published in print or online;

·viii. any presence on social media;

·ix. any political lobbying on behalf of an organisation;

·x. the signing of petitions perceived as being anti-government’ (paragraph 536(10)).

110.   DFAT[11] notes that Tamils returning from abroad may be monitored if they have a particular profile.

[11] DFAT Country Information Report Sri Lanka May 2024.

3.101 In-country sources reported that Tamils returning from abroad were able to be arrested for committing a crime before emigration. In-country sources said they were not aware of recent returnees being arrested for political reasons, including for suspected links to the LTTE.

3.102 Depending on their profile, authorities may monitor members of the Tamil diaspora, including on their return to Sri Lanka. Persons who hold leadership positions in Tamil diaspora groups, particularly groups deemed to hold radical views by the Sri Lankan Government; persons who were formerly part of the LTTE, particularly in high-profile roles; persons suspected of raising funds for the LTTE during the war; and persons who actively advocate for Tamil statehood are of particular interest to the authorities. Those Tamils living abroad with high-profile links to the LTTE and/or proscribed by Sri Lanka as terrorists are unlikely to return to Sri Lanka voluntarily.

111.   When discussing media freedom DFAT notes that there is significant freedom of expression in Sri Lanka and that journalists may criticise the government without fear of retaliation. However, this is conditional on the avoidance of certain topics.

3.130 ……According to in-country sources, Tamil journalists reporting on human rights in the north-east (including alleged historical human rights violations, missing persons, land disputes and war commemorations) continued to experience harassment.

112.   The Tribunal has considered each separate claim made by the applicant and in general finds that each on its own would not satisfy the Tribunal that the applicant would face a real chance of serious harm for either being a Tamil male from the north who had provided low level support to the LTTE in an LTTE controlled area, as a person who was of adverse interest to the Army, CID and Sri Lankan government authorities for reasons of his objections to the issue of fishing licences to Sinhalese fishermen, for his participation in Tamil diaspora activities in Australia, for reasons of his mental health condition or for returning to Sri Lanka as a failed asylum seeker who has departed Sri Lanka illegally. Even if the Tribunal considered these claims cumulatively, given the current country information on the situation in Sri Lanka, it would not necessarily find that the applicant would face a real chance of serious harm when those claims are considered together.

113.   As discussed with the applicant, the country information in the current DFAT report as well as information from other sources[12] indicates that a person with such a profile would not face serious harm amounting to persecution if he returned to Sri Lanka now or in the foreseeable future. Since the election of President Wickremesinghe in July 2022 the situation for the Tamil community has improved and DFAT notes

[12] [Source deleted.]

….Upon election, Wickremesinghe acknowledged Sri Lanka’s ethnic and religious diversity, and the importance of finding solutions to the issues facing the Tamil community, including with respect to land and economic development. These efforts were ongoing at the time of publication, although progress was limited.

3.6 Political grievances between the Tamil minority and the Sinhalese majority led to civil war (1983-2009 – see Country overview). Tamils judge the Rajapaksas pursued policies hostile to the community, including actively undermining transitional justice and reconciliation processes and entrenching impunity for alleged serious human rights violations from the war era. President Wickremesinghe has taken a more conciliatory approach and committed to advancing reconciliation, including through the creation of a Truth and Reconciliation Commission and full implementation of the 13th amendment to the constitution (adopted in 1987, the 13th amendment established Provincial Councils with authority over a range of administrative functions, although these powers have not been fully devolved).

3.7 In-country Tamil sources told DFAT that Tamils continued to face human rights challenges, although the level of state harassment and mistreatment had decreased significantly since 2015. In-country sources said the level of state hostility toward Tamils had eased under the Wickremesinghe Government, and that Tamils did not feel as threatened. In-country Tamil sources reported the security presence at Tamil war commemorations had reduced since the change in government, although some commemorations were disrupted, and arrests made, in November 2023.

….

3.15 Tamil war memorialisation was restricted under the Rajapaksas. The Wickremesinghe Government has taken a more permissive approach to some commemorations. May 18 commemorations (when Tamils memorialise those killed in the final stage of the war) largely passed without incident in 2022 and 2023. Maaveerar Naal (‘Great Heroes’ Day’, 27 November) commemorations likewise generally passed without incident in 2022 (according to in-country sources, security monitoring of these events, including in Jaffna, was minimal). However, some Maaveerar Naal commemorations, including in Vavuniya and Batticaloa, were disrupted by police in November 2023 and, according to Human Rights Watch, nine Tamils were arrested under the PTA.

114. The country information indicates that the government has made moves towards improving relations with the Tamil community including giving powers to the provinces over land, education, health, agriculture, housing and finances, reinstating the singing of the national anthem in Tamil as well as Sinhalese, the lifting of bans on previously proscribed Tamil organisations and individuals. [13]. The government has also made efforts to release land occupied by the military in the north and promised to halt land acquisitions in the north by government departments[14].

[13] '‘Himalayan Declaration’ Lays Bare Deep Divide Among Sri Lankan Tamil Groups', Mark S. Cogan, The Diplomat, 24 January 2024, 20240124114825 ;'Prez-Tamil N-E MPs: Govt. vetoes foreign judges, to consider int’l observers’ reports', The Morning, 20 July 2023; 'Sri Lankan President Wickremesinghe Woos Tamils Ahead Of 2024 Election –Analysis', P. K. Balachandran, Eurasia Review, 19 May 2023; 8; 'How Ranil Wikramasinghe is reaching out to Tamils', R Prasannan, The Week, 19 February 2023; 'Sri Lankan President Pledges Full Implementation of 13th Amendment', Rathindra Kuruwita, The Diplomat, 6 February 2023, 20230207091731; 'No reconciliation if Ranil rejects federalism: TNA', Mirudhula Thambiah, The Morning, 2 February 2023; 31 'Ban on Tamil diaspora units lifted', The Morning, 15 August 2022, 8; 'Amendment to the List of Designated Persons under Regulation 4(7) of the United Nations Regulations No. 1 of 201', The Gazette of the Democratic Socialist Republic of Sri Lanka, 1 August 2022

[14] DFAT Country Information Report Sri Lanka 2024 p.20; [Source deleted.]

115.   However, the Tribunal considers that the applicant’s provision of evidence to the [UN agency] regarding human rights violations and possible war crimes in the later stages of the civil war does put a different complexion on the applicant’s claims. While the Tribunal is confident that [the agency] does everything it can to protect the interests of witnesses in its evidence project there is always the possibility that the applicant’s attendance to give evidence has become known by others in the diaspora community and possibly by informants. The Tribunal notes that war crimes and missing persons are areas of particular sensitivity with the Sri Lankan government, and it has not agreed to UN resolutions to allow international bodies to make recommendations or be involved in any accountability mechanisms. DFAT notes

3.13 Security forces continue to monitor public gatherings and protests in the north-east (this was also the case for Aragalaya protests in the south in 2022). Security forces monitor and question individuals and groups suspected of promoting Tamil statehood or pursuing politically sensitive issues related to the war. This includes those advocating for missing persons and the release of military-occupied land; those organising and participating in civil war commemorations; those who engage with HRC processes (e.g. attending HRC sessions in Geneva); and those who regularly interact with representatives of the international community.

116.   The Tribunal considers that if the applicant returns to Sri Lanka he will return as an illegal departee and the country information indicates he will be questioned about his departure and his background. In May 2024, DFAT said it was not aware of recent returnees from Australia being identified as being of interest because of an association with the LTTE, or for activities undertaken or views expressed while abroad. If the Tribunal were considering the applicant’s previous activities in Sri Lanka or even attending diaspora events in Australia this information would be pertinent. However, this information does not expressly consider the situation for persons who have given evidence to the [agency] or other UN bodies.

117.   The Tribunal considers that if it were known, or if he had disclosed, that he had given evidence to the [agency] then it is possible that the applicant may be detained and questioned further. Country information on longer term detention by police or CID indicates that Sri Lanka still has a culture where torture is still used as a routine part of policing. While the risk of torture has decreased since the end of the war, DFAT assesses that it is still used[15].

[15] DFAT Country Information Report Sri Lanka May 2024. P.4.29

118.   Overall, the Tribunal considers it is unlikely that the applicant will face a real chance of serious harm either taking his claims into account singularly or cumulatively, but it cannot discount the possibility that the applicant may be questioned, detained and mistreated on his return for giving evidence regarding previous war crimes and human rights violations he had witnessed during the later stages of the civil war. Accordingly, the Tribunal is satisfied that there is a real chance the applicant will face serious harm for reasons of his political opinion if he returns to Sri Lanka now or in the foreseeable future.

119.   The Tribunal is satisfied that the applicant has a well-founded fear of persecution for one of the reasons set out in the Refugee Convention.

THIRD COUNTRY PROTECTION

1. Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. Section 36(3) provides that where a non-citizen has a right to enter and reside in any country apart from Australia, Australia is taken not to have protection obligations in respect of that person if he or she has not availed himself or herself of that right, unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) preclusion will not apply. Sections 36(4), (5) and (5A) apply where the applicant has a well-founded fear of being persecuted or a real risk of suffering significant harm in the third country, or a well-founded fear of being returned to another country where they will be persecuted or there would be a real risk of them suffering significant harm.

121.   There is no evidence before the Tribunal which suggests that the applicant has a right to enter and reside in any country apart from Australia.

122.   For the reasons given above, the Tribunal finds that s 36(3) does not apply in the circumstances of this case.

CONCLUSION

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

DECISION

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

Louise Nicholls
Senior Member

RELEVANT LAW

125.   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

126. 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).

127.   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.

128.   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.

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

1. 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.

131.   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.

132.   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.

133.   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.

134.   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.

135.   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

1. 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’).

2. ‘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.

138.   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

139.   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.