2211189 (Refugee)

[2023] AATA 1591

2211189 (Refugee) [2023] AATA 1591 (24 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2211189

CASE NUMBER:  2211188

REPRESENTATIVE:  Miss Shamili Kugathas

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Luke Hardy

DATE:24 January 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the respective decisions not to grant the applicants protection visas.

Statement made on 24 January 2023 at 12:58pm

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion – involvement with the Liberation Tigers of Tamil Eelam (LTTE) – particular social group – illegal departure – failed asylum seeker – LTTE recruitment as a child – detention – physical assault – Martyrs Day remembrance – financially supporting Tamil families – return visits to Sri Lanka – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 91WB, 424A, 425, 499
Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
Lawrie v Lawler [2016] NTCA 03
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326; 90 ALJR 25; 326 ALR 1
Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437 at 451
Selvadurai v MIEA (1994) 34 ALD 347
WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188
Sun v MIBP [2016] FCAFC 52
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants protection visas (PVs) under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, siblings, are both ethnic Tamil Hindu citizens of Sri Lanka. They arrived undocumented in Australia by air [in] May 2022 and were detained under the Act. They lodged separate PV applications on 2 June 2022. The delegate refused to grant the visas on 3 August 2022. The applicants sought merits review and the matter was constituted to me. I find the review applications valid.

3. For the purposes of the review, both applicants have submitted to the Tribunal copies of the delegate’s decisions on their respective applications. Those records contain hitherto uncontested summaries of their oral evidence and of potentially relevant issues raised with them for comment.

4. The applicants agreed to be heard at a combined hearing.

5. The applicants, who were still in immigration detention at the time, appeared before the Tribunal in a combined hearing conducted by video on 15 December 2022. Their adviser, a registered migration agent, also attended the hearing by video.

6. I allowed both of the applicants to remain together in the hearing at all times. There were no objections to conducting the hearing in this way. One of the applicants, [the second applicant], has made claims about sexual harassment, a subject that is understandably more appropriately discussed in private. However, I did not seek detail about the nature and actual manifestations of the alleged harassment beyond asking [the second applicant] to confirm what she had already put in writing. In this particular case, the Tribunal was more interested in the circumstances and context placing the alleged harassers in the applicants’ home.

7. The Tribunal hearing was conducted with the assistance of interpreters in the Tamil-English medium. The hearing ran for four hours with two adjournments. I deemed it appropriate to discontinue the engagement of the first interpreter when he asked if he could proffer a subjective opinion about perceived conduct on the part of the adviser. In this way, the first interpreter appeared to impart impressions of acting outside of the interpreter’s role in the matter. A second interpreter was engaged during the first adjournment and the hearing continued. I have drawn no negative inferences regarding the adviser who, in my view, only endeavoured to enhance communication between her clients and the Tribunal in the context of the video medium. A third interpreter was briefly engaged, this time by telephone, during the second adjournment, due to proceedings needing to continue beyond the second interpreter’s booking.

8. At one stage of the hearing, the applicants’ adviser intervened to suggest that a confusion about dates might be the result of [the first applicant] having a stutter. I have taken this into account, although the specific date issue that attracted this comment from the adviser at the time is ultimately not one that I find in any way significant to the overall review. I do not recall hearing a stutter or stammer at any time in the hearing. No other instances of evidence being affected by such have been suggested.

9. The Tribunal provided an agreed period for the adviser to make submissions arising from evidence given at the 15 December 2022 hearing. In providing this opportunity, I assured the applicants and their adviser that I would not proceed to conclusions and findings until this further opportunity to provide evidence and arguments had been received and considered.

10. In a post-hearing submission, received on 23 December 2022, the adviser informed me that her clients have since been released from detention. She asked the Tribunal to consider providing a further hearing, this time in-person, due to “inadvertent challenges” arising in the course of the video hearing involving “technological delays experienced [and] the use of multiple interpreters in one day.” The adviser asked the Tribunal to consider the request in the event of having “any outstanding concerns … following clarifications provided in this submission” lest her clients be “denied procedural fairness and … an opportunity to comment [on] any further adverse concerns.”

11. The adviser, citing case law[1],  argued that “there are advantages [to] interviewing an applicant which include hearing and seeing interruptions, hesitations and delays in the giving of testimony; and observing body language which can be important [to] interesting communication.” The adviser argued that visual “impressions” can assist a decision maker in assessing the credibility of an applicant. She also suggested that her clients might have been disadvantaged from the start in having to provide the information in their respective PV applications by telephone, explaining that this will have “no doubt inadvertently [led] to important aspects of [a] claim not being presented [in] the first instance.”

    [1] Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326; 90 ALJR 25; 326 ALR 1

12. I have considered whether the use of different interpreters through the hearing might have disadvantaged the applicants in some way but on reflection I am satisfied it did not. I acknowledge that there were some instances throughout the hearing when intermittent audio issues made it necessary for one speaker or other to repeat what had just been said, but I am satisfied that this factor did not prevent the applicants from understanding question put to them or being able to present their claims comprehensibly.

13. The applicants were both visible to the Tribunal at all times during the hearing. That said, I have had utmost regard to case law advising that The Tribunal should exercise particular care if it relies on demeanour in circumstances where a person provides oral evidence through an interpreter or where a person is not before the Tribunal and can only be observed via a video-link.[2] None of my findings in this matter rely on demeanour, or are even in part influenced by the same, one way or the other in any way whatsoever.

    [2] WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188 per Lee, Hill and Marshall JJ at [17] and [18].

14. Concerns raised during the hearing are amongst the subjects discussed in the submission received on 23 December 2022. My view is that this matter is at the stage where I consider what weight to give relevant evidence and whether I am satisfied or not satisfied as to facts already presented, clarified and explained. Inasmuch as the adviser was asking me to conduct a further hearing in the event of evidence raising more questions requiring further answers, I am of the view that the submission does not raise or trigger any new issues, which is to say that I am confident that there is no potential breach of s.425 of the Act. Meanwhile, there is no obligation on the Tribunal to disclose provisional views, findings or conclusions,[3] or evaluation,[4] in regard to a matter before it:

    Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given.  On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.[5]

    [3] Minister for Immigration and Citizenship v SZGUR[2011] HCA 1; (2011) 241 CLR 594, [9]; Lawrie v Lawler[2016] NTCA 03, at [192]

    [4] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[2006] HCA 63; (2006) 228 CLR 152, at [32]

    [5] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[2006] HCA 63; (2006) 228 CLR 152, at [48]; see also Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 at [89]

15. Whereas the adviser has said in the post-hearing submission that there is “no doubt” that telephone instructions from her clients has “inadvertently [led] to important aspects of [a] claim not being presented [in] the first instance[,]” she does not suggest, let alone detail, any specific examples.

16. One matter raised in the post-hearing submission relates to information [the second applicant] gave to a psychologist about her alleged sexual harassment. It is reported that [the second applicant] “was not able to provide great details of her sexual assault due to strong feelings of humiliation and shame[.]”

17. I have considered the request for a further oral hearing in this matter; however, I am confident that the applicants were not prevented by circumstances beyond their control from giving meaningful evidence at the hearing already provided, and that at I can proceed to a sound and well-reasoned decision on the material already before me.

18. I have considered factors raised at hearing and in the subsequent combined submission about technical, psychological and other matters potentially affecting the respective applicants’ capacity to give evidence. Having considered all of the relevant arguments and material supporting them, I am satisfied that neither applicant was prevented from providing cogent evidence due to circumstances outside his or her control.

    CRITERIA FOR A PROTECTION VISA

19. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the "refugee" criterion, or on other "complementary protection" grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

20. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

21. A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to that country: s.5H(1)(b).

22. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

23. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ("the complementary protection criterion"). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

24. 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 issues

25. The key issue in this case is whether, on accepted evidence, either (or both) of the applicants is (or are) entitled to Australia’s protection as a refugee (or refugees) or, if not, on complementary protection grounds.

26. For the following reasons, the Tribunal has concluded that both of the decisions under review should be affirmed.

    Claims

27. [The first applicant], an ethnic Tamil and a Hindu, claimed in a 2 June 2022 statement that he was born in Sri Lanka’s Jaffna Peninsula in [year]. He lived and completed his primary education in Vavuniya until [year]. He then lived and completed his secondary education in Kilinochchi between [specified years]. He claimed he moved back to Vavuniya in 2011 where his family still resides.

28. [The first applicant’s] claims are set out against the back drop of the Eelam Tamil (LTTE) insurgency, that dominated and damaged Sri Lanka’s domestic progress over a number of decades until May 2009 when government forces decimated it, and also in the context of the government’s rigorous pursuit of remnant LTTE cadres and active supporters in the years that followed, up to the present.  

29. [The first applicant] claimed his childhood and education were somewhat disrupted by the civil war, at least in that he had to move from his home in Vavuniya to stay with an aunt in Kilinochchi for a period during the war. He said his aunt’s house was in an area under the control of the LTTE insurgency. He specifical claimed he therefore had to enrol in a new school, but on the evidence provided he would have needed to do so anyway as he had completed his primary education evidently at a designated primary school. He claimed that in 2006 a military operation separated him from his aunt, leaving him to seek shelter with neighbours. This disruption, however, is not reflected in any detail in [the first applicant’s] original PV application where he claims only one address change in [year] from Vavuniya to Kilinochchi, and another in May 2009, when the civil war ended, from Kilinochchi to a named “Refugee” camp.

30. [The first applicant] claimed the LTTE used to send recruiters to his school in Kilinochchi to encourage youths to join the LTTE. He did not suggest that he had had any interest in joining the LTTE at that time. He claimed, however, that he was later recruited by the LTTE as a juvenile in 2008. He described the LTTE having forcibly abducted him whilst he was playing outdoors with friends. He claimed he was held for a time but decided to stay on with the LTTE, while his friends were let go, because he admired and respected the LTTE. He claimed he was given porter-like tasks and was given basic arms training. He said that as the war intensified towards its conclusion in 2009 he decided to desert the LTTE base where he was assigned. He claimed the authorities located him and “herded” him into an Internally Displaced Persons’ (IDP) camp at [Town 1] where he was questioned because he was an able-bodied unaccompanied young male. He does not suggest that he was ever seriously suspected of being an LTTE cadre or active supporter. He claimed a ruse involving a trip to a hospital was used to gain permission to remove him from the IDP camp and reunite him at home with his family in Vavuniya. The authorities evidently did not react to this. [The first applicant] evidently completed his “O” levels in [year] at the age of 16, which is generally the age at which one would complete them after an uninterrupted education.[6]

    [6] see

31. [The first applicant] submitted to the Department a copy of a purported [April] 2009 court order demanding that he be handed over to his mother from the welfare centre in the [Town 1] IDP camp. On the face of it, there was no need for a ruse to get him out of camp and back, as the process was apparently authorised by a court. Meanwhile, this order appears to put him back home in Vavuniya in 2009 rather than in 2011 as claimed in his original PV application.

32. [The first applicant] claimed that in ensuing years there were further occasions on which Tamil youths were arbitrarily required to attend questioning by authorities. According to his statement, there was a fear that the authorities would find out he had been recruited as a child in 2008. This claim suggests that the authorities did not actually accuse him at the time of having been an LTTE recruit. In any event, [the first applicant] claims that he legally obtained a passport in his own name in 2013  on a working visa arranged by a friend. He stayed in [Country 1] until 2018. He claimed that he used to observe Sri Lanka’s Martyrs’ Day during his time in [Country 1], lighting a lamp beside a photograph of a slain LTTE leader in his room.

33. [The first applicant] evidently left Sri Lanka legally on a genuine and valid passport in 2013, which would appear to indicate that he was not individually under any suspicion on the part of Sri Lankan authorities including its security apparatus. He evidently re-entered Sri Lanka legally on the same passport in 2018. He apparently moved back into the population at large without much ado, if any at all. This too would appear to indicate that, as at 2018, nine years after the end of the civil war, during which Sri Lankan authorities took intense interest in seeking out former LTTE cadres and remnant LTTE loyalists, [the first applicant] remained of no potentially relevant interest to the Sri Lankan authorities whatsoever.

1. [The first applicant] claimed he was only back in Sri Lanka a month when a work opportunity saw him depart again legally on the same genuine and valid passport he had previously used. He travelled to [Country 2], where he told me he did not work, and then to [Country 3] where he started working without a work permit. He claimed he gave his passport to a deceptive broker who promised to help him obtain a work permit, only to lose it when the broker absconded with it. He claimed he contacted Sri Lankan consular staff who issued him with the kind of single-use travel document commonly issued to citizens abroad who have lost their passports and need to travel home. [The first applicant] told me the trave document was issued to him in about ten days. he did not suggest that there was any undue or unexpected delay. He claimed he was told he should book his own travel.

2. [The first applicant] claimed that he arrived back in Colombo airport on or around [a day in] April 2019. In his statement, he said

   Because I returned on a one day passport, I was taken by the CID into an interrogation room and questioned about why I went to [Country 1], and why I went to [Country 3] … They asked me about whether there were any LTTE activities in [Country 3], and I told them that I did not know, and that I only went to [Country 3] to work … different officers would come and question me … They took a photo of me and fingerprints and asked where I would be residing in Sri Lanka. I provided them with my address in Vavuniya. I was held for around five hours while I was questioned ... After I returned to Vavuniya, the CID came to our house to check if I actually was living there … in Vavuniya I carried out private [occupation 1] jobs.

3. [The first applicant] told me he recalled being questioned for four hours, but I consider the difference inconsequential. More significantly, it would seem, the Sri Lankan authorities had evidently no serious, potentially relevant concerns about [the first applicant] after interviewing him at the airport, releasing him the same day into the community and checking that he had been truthful abut where he would be residing.

4. According to his statement of claims, however, [the first applicant] said all this later changed, and for the worse.

5. [The first applicant] claimed that his family lived next door to a former LTTE cadre called [Mr A] who had just been released for ten years’ imprisonment. He claimed that [Mr A] used to provide charitable donations such as groceries to families of deceased or severely injured LTTE cadres. He claimed that his brother-in-law, the husband of the other applicant in this case, [the second applicant], used to send money back from Australia where he currently resides, to help with the purchase of groceries for such families.

6. [The first applicant] submitted to the department a photocopy of a [July] 2022 letter from the Grama Niladhari’s Office in the [Division 1] Division. To help me understand what these institutions are, I found information in a World Food Programme report[7] from 2009:

   Sri Lanka is geographically divided into 25 districts. Each district is sub-divided into DS-divisions (Divisional Secretary divisions) and each DS-division is sub-divided into GN-divisions (Grama Niladari divisions). Each GN division is consisted of several villages.

   [7] “Identification of DS Divisions of Sri Lanka Vulnerable for Food Insecurity,” World Food Programme, 2009,

7. This information directed me to other reference material indicating that a Grama Niladhari is a Sri Lankan public official appointed by the central government to carry out administrative duties in a grama niladhari division, the latter being a sub-unit of a divisional secretariat. I understand that these offices come under the Home Affairs Division of the Ministry of Home Affairs and that there are over 14,000 grama niladhari divisions within 331 divisional secretary’s divisions throughout the country.

8. The local Grama Niladhari in this instance is a person identified as [name]. His letter, evidently written around three months after [the first applicant] left Sri Lanka for Australia, reads as follows:

   Herby [sic] I certify that [the first applicant] and [Mr A] had been helping people in my area during the hard time of covid in 2020 and 2021, they mainly assisted people by providing essential goods to war affected families, ex-militants families and war affected widows. I wish them good luck.

   Thank you.

   [signed]

9. Examining this letter, I find no reason to assume that it is a fake, notwithstanding the reported ease with which letterhead and stamp chops can be contrived in Sri Lanka by unauthorised users. In addition, I find no reason to consider the author untruthful. All of this is to say that I am prepared to accept that this is a letter sought by the applicants from their local Grama Niladhari that genuinely, if somewhat generally, bears witness to activities more or less described in the applicants’ PV applications. However, this material attracts three reasonable observations. The first is that an official in Sri Lanka’s national administrative structure has signed his name here to a benevolent acknowledgement of the charitable activities [the first applicant] has more or less described in his PV application, essentially inviting inferences to the effect that they are not controversial from the state’s point of view. The second is that the neighbour [Mr A] (here similarly enough named [Mr A name variant]) does not appear to be controversial as far as this testimonial is concerned. The third is that the letter does not help to suggest that there was any potentially relevant action taken or perpetrated against either [the first applicant] or his neighbour in the period during or since 2020 and 2021. The letter leaves the Tribunal potentially inferring that [the first applicant’s] charitable activities were publicly known, more than tolerated by the state and generally quite far from controversial.

10. [The first applicant] claimed that he observed the annual 27 November Martyr’s Day remembrance from 2019 onwards. He said these observances were organised by a group called the [name] organisation. He claimed that his participation in the lamp and candle lighting ceremony on 27 November 2021 was leaked by way of an article and photographs to an offshore a website called [Website 1]. He provided a copy of the article to the Department along with a URL link. One can see two photographs of [the first applicant] in the article. In one of the images he appears to be praying over a flame; in the other he is standing next to a flame lit on a stick. The photographs appear to have been taken in a yard and/or indoors. According to the text of the article, bells were rung in many temples in Vavuniya while people lit lamps at home. The article also says that police imposed a ban on gathering in public places. It goes on to refer to [Mr A], who is identified as a former convict, saying he paid tribute in front of his home “despite the threats of investigators.”

11. [The first applicant] claims that [Mr A] also observed the occasion on 27 November 2021 and that one of the photographs features him lighting a lamp. [He] evidently indicated to the delegate which photograph that was and the delegate observed that the respective  photographs of him and [Mr A] in the [Website 1] posting appeared to show them in very different locations, leaving it unclear whether the two even attended the event in the same place or the same time. Independently, I consider this a reasonable observation.

12. What may be an additional article or a continuation of the first entry repeats the information about the [named] Committee having organised observances, adding that they included the lighting of a lamp by “[name],” a former Tamil Tiger (LTTE) [leader]. The information about the ban on public ceremonies is repeated, again leaving it to appear that this material is from a separate source. This entry then describes memorial observances for Tamil “Fallen Heroes” having been held “at a place exclusively organised by the management committee of the [named].” A third entry repeats the information about the celebrations having taken place in an “exclusive location.”

13. All this material was translated in July 2022. There is a reference in the translation to a date “7 months ago” which, if it was downloaded just prior to translation, suggests that the article, or the three posts it appears to comprise, was/were posted on [Website 1] in late November 2021. The submitted photocopies of the Tamil-language original do not show the date or age of this material perhaps because the NAATI translator’s banner obscures them.

14. [The first applicant] claimed he was apprehended [later in] November 2021 by CID officers and taken to an army camp where he was detained and interrogated over a period of about five or six days. He claimed he was asked why he had participated in the “Martyrs’ Day” observance and also beaten with batons. He claimed the CID officers accused him of having been with the LTTE back in Kilinochchi ([between specified years], or 2010). According to his evidence, this is the first time Sri Lankan authorities ever accused him of either recent or historical involvement with the LTTE. [The first applicant] claimed he denied having ever had any involvement with the LTTE and had only lit a lamp on Martyrs’ Day because he was asked to do so by the families he had been trying to help feed during the Covid crisis. He clamed he was asked the source of his funds for that charitable work and he said his sister’s husband sent it from Australia. He said the CID officers decided to let him go, transporting him to a road where they left him to find his own way home.

15. [The first applicant] claimed that after his release, CID officers and soldiers visited his home twice a month to question him and his sister [the second applicant]. He said they sued to question [the second applicant] about her husband sending money from Australia. There is no suggestion in the 2 June 2022 statement that they questioned anyone else in the household at that time. He said that the visiting officers would take [the second applicant] into “a room” alone and question her. He said [the second applicant] became fearful for her safety.

16. [The first applicant] claimed in the 2 June 2022 statement that in April 2022 everyone in his village protested publicly against the national government’s economic mismanagement. He described the slogans in the protest having included “Go Home Gotaya,” being a sentiment calling for the resignation of Gotabaya Rajapaksa, who was at that time the president of Sri Lanka and who did resign and flee the country a few months later. He claimed that the day after he joined his village in this mass protest, two men dressed in civilian clothes came to his house and told him to report  for questioning (somewhere else, apparently) the following day. He seemed to imply that these men were from the CID. It struck me as odd, in the claimed circumstances, that the CID did not adopt the practice that [the first applicant] appeared to describe as the normal one in his case, being to take him off for questioning immediately upon finding him.

17. [The first applicant] claimed that, out of fear of being tortured, he fled for Colombo and did not return to Vavuniya. He claimed that due to his absence, “men would come and question [the second applicant] about my whereabouts and her husband’s residence in Australia.” He added, “Because I had fled they assumed I was guilty of something.” He claimed that out of fear of the possibility of sexual assault [the second applicant] joined him in Colombo.

18. [The first applicant] claimed that his mother “organised with an agent to make illegal arrangements for us both to depart Sri Lanka.” He said the arrangement the agent made was to “pay the officer at the counter.” He said the agent “provided us with specific instructions on what specific counter to go to.” [The first applicant] said he had given different information about his departure from Colombo to Australian officials on arrival at Sydney airport because the agent had told hm not to describe the details to anyone.

19. At his PV interview, [the first applicant] described his last passage through Colombo airport rather differently, saying that an officer stopped him at the airport whereupon there was a telephone call from the applicants’ agent to the officer right there and then. [The first applicant] claimed to the delegate that a bribe was offered on the spot and he and [the second applicant] were then allowed to continue departing legally. He implied they would not have been allowed to depart without the bribe offered by the agent.

20. [The first applicant] claimed that he and his sister flew from Sri Lanka to [Country 1] on their valid and genuine passports on [a day in] May 2022. He claimed an associate of his agent took away his and his sister’s passports in [Country 1] and gave them fraudulent passports for their onward flight to Sydney.  He claimed he and [the second applicant] disposed of these purportedly fraudulent passports in the Sydney airport toilets.

21. [The first applicant] claimed to have been told by his mother that the CID continued to visit the family home asking and him and [the second applicant]. He claimed his mother was so scared that “she told them the truth … that we are now in Australia.”

22. [The first applicant] said in his statement that after coming to Australia he found out that [Mr A] has been acting as an informant. He claimed fear of what [Mr A] might have told the authorities about him. Apparently relevant to this claim, he submitted a translated photocopy of another post to [Website 1] or a similar website. The translation reports a request by police for [Mr A] to assist with information, discussed in more detail below. Interestingly, the applicants’ adviser states in a covering email that this and the other post to [Website 1] both describe the Martyrs’ Day celebrations on 26 November 2021; however, the content of the posting about the police request evidently relates to an entirely different occasion, being an 18 May 2021 commemoration and therefore specifically not the one that fell on 27 November 2021.

23. At his PV interview, [the first applicant] evidently told the delegate he found out about [Mr A] being a state informant prior to coming to Australia.

24. The text of this article appears to have been posted [in] February 2022. It features a link to a YouTube video (unavailable to the Tribunal in English) and three photographs of a something handwritten, purportedly [earlier in] February 2022 on what is purportedly an official police “message form” pro forma. The translation of the posted article reads in part as follows:

    The [Security Branch 1] has asked a former political prisoner, who lives in Vavuniya, to provide the names and details of who he commemorated in his home on the 18^th of May …

    The order issued to [[Mr A]] … by the [Branch 1] stated the following:

    In connection with the investigation being carried out by the [Branch 1], you gave a statement saying “I lit a lamp to commemorate the Genocide Day on 18/05/2021 and paid tribute to the deceased.” You said that you did that because your family members and close relatives had died due to the war and hence you wanted to commemorate them. While giving this statement, you said that you will hand over the details of the family members and relatives, who passed away during the war, to the [Branch 1].

    Therefore you are being informed that the list of names and full details must be handed over to the [local Branch 1] before 22/02/2022.

    Meanwhile, it should be noted that this former political prisoner had paid tribute to the deceased in his home on the 18^th of May without violating any court orders.

25. It strikes me as odd, in the claimed circumstances, that what this article calls a “Police Order” is written on what purports to be a “message form” in which the sender in Colombo and the intended recipient in Vavuniya are purported both to be officers identified seemingly by police ranks and serial numbers in the [Branch 1].

26. In any event, this posting to the Tamil news website, from a source only identified as “[name],” attracts a number of observations apart from the one about it having nothing evidently to do with 27 November 2021. The first of these is that neither the article nor the material it purports to quote, in themselves, either separately or cumulatively support the suggestion that [Mr A] is an “informer” as it merely suggests that he is the subject of an investigation. The second is that the information purportedly being sought relates exclusively to deceased relatives, as explicitly mentioned twice in the article. The third observation I make is that it says or implies nothing at all that would seem potentially to implicate [the first applicant]. Fourthly, the authorship, competence and authority of this posting to the website is unknown as is the extent to which its content was fact-checked by anyone. However, in any event, and sixthly, it appears to report that [Mr A] was doing nothing at all illegal on 18 May 2021, which makes it seem incongruous that the [Branch 1] has been investigating which deceased persons he was commemorating on that day.

27. To the extent that [the first applicant] has claimed fear of [Mr A] describing to authorities the charitable activities that he and [the first applicant] undertook together in the community, t also seems reasonable to observe that those activities appear already well-known to the Sri Lankan authorities, as evidenced in the well-wishing letter from the Grama Niladhari’s office.

28. [The first applicant] concluded his [May] 2022 statement of claims saying he feared that in the event of return or removal to Sri Lanka he would be harmed due to being a Tamil, and one who had lived in previously LTTE-controlled areas, as well as for his past LTTE involvement, the assistance he has given to “Martyr Families” in Vavuniya, his “close” relationship with [Mr A], his having lit a lamp on “Martyrs Day” 2021 and his political opinion favouring the LTTE and opposing the “Sri Lankan regime.” 

29. At his interview with the delegate, [the first applicant] evidently repeatedly claimed that the date on which he attended lamp-lighting commemoration in 2021 was 18 May of that year. He argues that this was due to confusion in the moment.

30. Arguments addressing concerns raised by the delegate appear in a 21 July 2022 submission from [the first applicant’s] adviser. One of the things discussed was the means by which the applicants departed Sri Lanka through Colombo airport. The submission introduced new evidence about the pair having been taken aside to a room where they were questioned . In this version of events, [the first applicant] called his agent who spoke to “the officers” and “re[-]sent’ a picture of the applicants whereupon they were allowed to depart. One way to see the two somewhat different versions of events as having some consistency is to allow that the original departure plan, involving simply going to a designated passport officer’s desk, hit some kind of snag, at great potential risk to the applicants, and had to be put back on track at short notice. However, if this is what happened, none of the information about being taken aside and having to call the agent was suggested in [the first applicant’s] [May] 2022 statement.

31. [The first applicant’s] adviser relied on a report from 2006 to argue that it is plausible for a person to effect otherwise impossible departure from Sri Lanka on the payment of a bribe. The adviser’s information seems old, although a 2019 report[8] from the UK Home Office cites “[r]epresentatives from the Department of Immigration and Emigration stat[ing] it would not be possible to bypass checks at the airport without the complicity of immigration officials.” The UK Home Office, then, does not rule out that a regular exit by potentially wanted persons could be contrived with the help of co-opted airport officials. It is for the applicants to satisfy the Tribunal that this is what occurred in their respective cases.

    [8] “Report of a Home Office fact-finding mission to Sri Lanka Conducted between 28 September and 5 October 2019” UK Home Office, 20 January 2020,

1. At the Tribunal hearing, [the first applicant] told me his most recent passport had been issued in 2019. He acknowledged that authorities never cancelled it, say, to curb his movements by preventing him from using it to leave Sri Lanka. He confirmed that he had had no problems leaving Sri Lanka for [Country 1] in 2013 or returning in 2018.

2. [The first applicant] said that after he returned to Sri Lanka in 2019, his troubles began in November 2021 after he attended the remembrance ceremony. I asked him where the ceremony he attended took place. He told me that it was in an “open place” like a “playground.” Essentially, he told me it was a public place. His evidence at the hearing was different from the information in the [Website 1] article in which his face evidently appeared, where it says that commemorations were held in people’s homes and in “exclusive,” i.e., private, locations.

3. [The first applicant] told me there were ten to fifteen people at the ceremony he attended on 27 November 2021. He said the gathering was prohibited by the state. I questioned why it took place in an “open place” like a “playground.” [The first applicant] said it was decided to stage it there because it had wide local support. On the one hand he said nobody warned his group that it might be dangerous to hold the ceremony in an “open place” like a “playground” and, on the other, he claimed he already knew it was a “prohibited” event. His evidence here as to his knowledge and state of mind at the time of the ceremony struck me as being somewhat inconsistent.

4. Independent country information indicates that there has been some ongoing controversy about the observing of Martyrs’ Day in Sri Lanka. Large, public observances of Martyrs’ Day have been banned in some parts of Sri Lanka. I found evidence, however, of court orders allowing commemorations in the Jaffna region.[9] As to the situation in November 2021, there is reporting[10] [11] of security deployments having prevented access by mourners to the sites of former LTTE cemeteries and some other large public spaces in recent years whilst not interfering with lower-key gatherings:

   [9] “Three magistrate courts in Jaffna refused to ban Maveerar Naal commemorative events,” The [Sri Lankan] Times Online, 23 November 2021,

   [10] “Tight security in North over LTTE Maveerar Day events,” The Sunday Times [Sri Lanka], 28 November 2021,

   [11][11] “Sri Lanka Govt. launches crackdown on Tamil remembrance,” Sri Lanka Brief, 27 November 2021,

   Tight security was maintained throughout the Northern Province yesterday with temporary checkpoints and patrolling of military personnel in streets as residents and organised groups held events to commemorate those killed in the separatist war.

   Remembrance events were mostly held in homes and in a few selected public places with people lighting oil lamps and candles to remember the dead.

   The events coincided with November 27 “Maveerar” or Martyrs Day observed by the Liberation Tigers of Tamil Eelam (LTTE) since the early 1980s to commemorate its fallen cadres.

   [Photo caption:] Civilians conduct[ed] a commemorative event at an abandoned cemetery at Velani in Jaffna yesterday.

   Some civil society-led organisations and youth groups organised similar events among their close circles yesterday evening.

   In Valvettithurai, more than a hundred people gathered at the Theeruvil grounds  to commemorate their loved ones with flowers, garlands and candles but they were not allowed by security forces. However,  a handful of people were allowed to take part in the event.

   Several people and local politicians gathered in Chaati, Velanai at an abandoned LTTE cemetery, but security forces and police barred people from entering the site and allowed only a few people to go inside.

   Police also prevented people who gathered on the Mullaitivu beach to mark the day and arrested one person who refused to obey police directives.

   Throughout the province, many shops were closed and transport services were limited as political parties and civil society forums urged the people to observe low key commemorative events due to the court orders issued by various courts and the pandemic situation.

5. According to some reporting, the so-called “crackdown” was more of a military presence engaged in limiting the scale of commemorations in various locations. The Tamil Guardian reported[12], with multiple, unredacted photographs of mourners lighting lamps and candles, that in spite of the limitations described above, or arguably working within them, Tamils in their thousands observed Martyrs’ Day commemorations across Northern Sri Lanka on 27 November 2021 without hindrance:

   Private commemorations to mark Maaveerar Naal were held across the North-East on November 27th, amidst a Sri Lankan military crackdown and fears of intimidation, harassment and arrest.

   In Kilinochchi, there were reports that the Sri Lankan military had blocked access to destroyed LTTE cemeteries, where locals had gathered in previous years to pay tribute to those that gave their lives in the Tamil liberation struggle.

   Instead, private commemorations were held in temples and homes.

   In Mannar, Tamil National Alliance MP Charles Nirmalanathan lit a flame and candles before a banner to commemorate Maaveerar Naal.

   In Vavuniya, former political prisoner Yumana S. Aravindan paid homage to fallen fighters.

   Families of the disappeared in Vavuniya also held a small commemoration ceremony.

   The events across the North-East took place amidst a crackdown by the army that saw a heavy military presence and at least one arrest.

   [12] “Maaveerar Naal: Kilinochchi, Mannar and Vavuniya,” Tamil Guardian, 1 December 2021,

6. The Tamil Guardian article, cited above, features a photograph of [a participant] holding a small candle inside a white-painted, seemingly private room, and placing it amongst five others. Whereas this article was published around four days after the 27 November 2021 commemorations in Vavuniya, there is no suggestion that anyone commemorating Martyrs’ Day anywhere in or near Vavuniya was arrested, let alone detained.

7. Independent information about Martyrs’ Day 2022 suggests a further relaxation of conditions for mourners, presenting observances in locations both large and small, public and private, according to photographs and comments that appeared in the Tamil Guardian on 27 November 2022[13]:

   Maaveerar Naal was marked at Eechankulam, the only Thuyilum Illam to have been built by the Liberation Tigers of Tamil Eelam (LTTE) in the Vavuniya district.

   A commemorate event was also held in Kalikkaadu in remembrance of the Maaveerar.

   Lamps were also lit at Vavuniya city hall to commemorate the fallen.

   Students at Vavuniya university also held a remembrance event to mark the day.

   [13] “Maaveerar Naal marked in Vavuniya,” Tamil Guardian, 27 November 2022,

8. As noted, [the first applicant] claims he attended an observance in a public “playground.” In such circumstances, it would appear to have been easy for local authorities to disperse such a gathering were they inclined to do so; on [the first applicant’s] evidence, they did not.

9. I asked [The first applicant] for more detail about the commemoration he claims to have attended. He said that there were about fifteen participants and around ten observers. I asked him why he referred to this ceremony as a “prohibited event.” I put to him that, in such circumstances, it seemed odd that Tamil community news sources published unredacted photographs of mourners on the occasion, as to do so might have put at risk the liberty of those depicted. In response, [the first applicant] changed his claim about the event he attended being “prohibited.” He said that it was permitted by the authorities for family members of martyrs to commemorate them, but not for persons who had no relatives amongst the dead. He did not support this new claim about exclusion of non-family members with any material whatsoever. I put to [the first applicant] that his evidence still seemed inconsistent because he had initially indicated that the event was “prohibited” without exceptions, but was now saying it was permitted with exceptions. He then said it was a prohibited event, and that “we lighted lamps without others knowing.” I asked [the first applicant] why, in the claimed circumstances, an unredacted photograph would have been published on [Website 1]. In reply, he said it was taken without his knowledge. This response did not adequately explain why a pro-Tamil website would have published his photograph seemingly indiscriminately. I put to [the first applicant] that it seemed incongruous for the specific event he attended to have been both prohibited and not prohibited, and he said that it was indeed prohibited, that fifteen persons took part and that he was one of them. On the overall evidence before me, [the first applicant’s] evidence here seemed to involve fanciful improvisations. 

10. I asked [the first applicant] if he was aware of anyone else at his gathering or any other in Vavuniya being arrested and he said he was not aware of whatever might have happened to any of the others who attended the same ceremony he attended. I asked him of he had not been curious and he said that he went into hiding after his arrest and detention in late November and early December 2021. He said that at that time he was fearful of making any enquiries.

11. I asked [the first applicant] to explain what he meant by being in “hiding” after his arrest, questioning and release, as this claim did not appear in his original statement of claims or, evidently, in his testimony to the delegate. In response, he said he went into hiding in “different provinces.” Not long after he made this claim, he changed his evidence, saying that he used to reside in his family home for around three days a week and then stayed elsewhere for four days a week; in this way he indicated that he did not spend the whole time in hiding. I asked him if he could not have found out through his parents about whether anyone else he knew might have been arrested, as surely there would have been gossip. In response he said he never asked his mother because she was old. He also said that because the CID “tortured” him during his four- or five-day detention, he was scared to enquire. I asked [the first applicant] for detail about where he resided during the four days a week when he did not reside at home and he said he worked on those days. His original statement of claims says his work at the time was “local,” so his claim about “hiding” in “other provinces” appeared contradicted. I put to [the first applicant] that he had apparently never claimed to have gone into hiding upon release from detention by the CID in his evidence to the Department, and he said, “We were in hiding.” I drew his attention to the apparent discrepancy and he said, “I was hiding.” I asked him why he had not said so to the Department, including the delegate, and he said, “I missed certain things.” 

12. [The first applicant] told me the authorities used to visit his family home around twice a month to check that he was residing there. I asked if it had not been foolish, in the claimed circumstances, to be absent rather than simply to reside there, since the purpose of the visits was to simply to check that he was at home. In reply, he said he hid because he was “fearful.”  He said that if the authorities came to the house while he was hiding, his mother would say he was out working, which he said was true. He said the authorities sometimes accepted this and sometimes did not. I asked him what the officers would do on those occasions when they did not accept his mother’s explanation for his absence, and he said, “They’ll call me.” This did not strike me as a particularly strict reaction from the CID in the claimed circumstances. Again [the first applicant’s] evidence here struck me, in the claimed circumstances, as being a somewhat far-fetched improvisation.

13. I expressed concern to [the first applicant] that there seemed to be no independent evidence of his arrest and detention, not even any reports to pro-Tamil news sites. In response, he said that it was CID officers who arrested him [in] November 2021and that when the CID arrests a person the arrest does not appear in the news. This response potentially explained the CID’s reticence to release information about detainees and suspects, but it did not satisfactorily explain why pro-Tamil news sites, including those based abroad, would not report such things when attention to publicising arrests in some detail seemed the norm.

14. [The first applicant] said that his brother-in-law started sending money in 2020 to help him distribute charitable donations to Tamil families. He said his “torturers” interrogated him about this too during his four-or five-day detention. He said they explicitly referred to this activity as evidence of his being an affiliate of the outlawed LTTE. However, if these officials were aware of, and concerned about, that conduct and what it represented, as claimed, it seemed odd to me that they waited until late 2021 before calling him to account for it. Also, it seemed odd to me that anyone drew the inference about this charity activity being any kind of veiled LTTE activity in the first place. The letter from the local Grama Niladhari implied, if tacitly, that the activity was not only innocuous but much welcomed.

15. I asked [the first applicant] about the February 2022 news site post, the one referring to [Mr A] having been asked by police to name the dead who he had commemorated in May 2021. I sked why the authorities would have instigated such an investigation some nine months after the event. In response, he said that whoever supports the LTTE is in trouble. Is reply did not satisfactorily address the point of my question. I asked why the police would need to ask [Mr A] to provide information in this way if he was, as claimed, a police informer. In reply, he said, “Yes. He’s working with them secretly.” I put to [the first applicant] that in such circumstances, the police would not need to issue a demand in writing as suggested in the news post. In reply, he said that [Mr A] is also a politician and that this is why he is a police informer.

16. I put to [the first applicant] that I had asked him so many questions about the posts to [Website 1] because it seemed to be a site that might simply publish posts unfiltered and without checking provenance and factuality of material posted. In response, he said all the material submitted was genuine. 

17. As noted, [the first applicant] claims that he joined in the mass demonstrations against former president Gotabaya Rajapaksa in April 2022. He claims he fled Vavuniya for Colombo because he was singled out and told by CID officials to present for interrogation the following day. I put to him that, according to his claims, the CID discovering that he did not report for interrogation on that day, and was no longer at home, would have raised an alarm. I expressed some concern that, in the circumstances, they did not cancel his 2019 passport. In reply, he said that only a court order could have made it possible for the authorities to cancel his passport. He provided no information to support this claim. He also said that his passport was not cancelled because he was only being observed by the “local CID.” Essentially he gave two explanations that seemed capable of cancelling each other out: he seemed to suggest, on the one hand, that it would not matter if the local CID were better connected nationally as it would still be subject to an order of a court, and, on the other, that the critical thing missing in his case was a more comprehensively-integrated CID surveillance network. Meanwhile, given that the CID is Sri Lanka’s Central Intelligence Department, it struck me as fanciful to suggest that CID officials in the country’s former LTTE stronghold were not wholly integrated within the national network. I am of the impression that [the first applicant] improvised the two explanations as to why he was left with a passport capable of getting him out of Sri Lanka.

18. I asked [the first applicant] why he spent six to seven months still residing in Sri Lanka, and in Vavuniya in particular, after the November-December 2021 detention and interrogations when all the while he had a passport capable of letting him leave at any time. In reply he said he had been expecting during that period that his problems with the authorities would “be solved.” He said this was why he was “hiding” and “watching.” I have considered this response, but it seemed very difficult to regard [the first applicant’s] continued routine of staying at home except when he was working as anything at all consistent with the notion of “hiding” from state authorities, let alone in different provinces as claimed.

    [The second applicant]

19. [The second applicant] claimed in her original statement that she worked in Sri Lanka as [an occupation 2] from 2009. In her PV statement, she said she [worked] at the [Agency 1], a provincial [agency], from January 2009 to January 2016. She claimed she then [worked] at the [Agency 2], which is also a provincial [agency], from January 2016 to January 2022. [These agencies] in Sri Lanka are operated by local governments.[14]

    [14] [Source Deleted.]

20. [The second applicant] provided the department with an October 2009 appointment letter from [Registry 1]. In that she was able to be appointed [an occupation 2] in a provincial [agency] in 2009, she does not appear to have been suspected of any LTTE links, or familial links to LTTE suspects, at the time.

21. [The second applicant] travelled legally to India and back in 2018. In India, she married the holder of an Australian Safe Haven Enterprise Visa that had been issued in 2016. She claims the marriage was a love marriage, her having first met her husband in 2010 and their having entered into a relationship in 2012. She said he was also [an occupation 2] at the [Agency 3] at that time. She claimed he left Sri Lanka because he was being targeted by the CID. She provided no more detail about her husband’s history up to the time he left Sri Lanka.

22. [The second applicant] claimed she applied for a tourist visa for Australia in 2020 to visit her husband here. The application was refused. This can be regarded as evidence of an intention on [the second applicant’s] part to visit Australia some time prior to the events that caused her, as she claims, to flee Sri Lanka.

23. [The second applicant] claimed that her brother [the first applicant] “was asked to light a lamp at the Martyrs Day remembrance day in [Town 2], Vavuniya.” She said he was then detained and returned about four days later. She said that after [the first applicant’s] release, CID and army officers began visiting their home. She said they would take her into a room and question her about [the first applicant’s] LTTE involvement and also about her husband’s purposes in residing in Australia. She said that “[t]he officer” would sexually assault her by groping her over her clothes. She said this happened even though she had not told anyone she was married. She said these officers would usually visit between 8 and 10pm. She said that by January 2022 she was scared to go to work lest authorities seize her in public and rape her. She said she stopped working at that time on her own volition. A photocopy of an 8 June 2022 letter from the [Agency 2] says she “has not been attending [work] since January 3, 2022 for personal reasons.”

1. [The second applicant] said that [the first applicant] relocated to Colombo in April 2022 and that because of this she feared the CID and army would take her away. She said her mother was at this time organising to help [the first applicant] leave Sri Lanka. She claimed she joined [the first applicant] in Colombo the night before they were due to depart. She said they both left the country together, helped by an agent who told them which specific immigration counter to queue for in the departure hall. She gave no further details of any special arrangements made or required to ensure unhindered travel out of the country.

2. [The second applicant] made no mention at all, in her PV application or accompanying statement, of being asked about her part of the process in which her husband sent money home to assist in charitable donations to Tamil families. She did say briefly there that she feared harm due to [the first applicant] having been “financially supporting LTTE families” but gave no detail. She also said she feared accusations about having “financially supported the LTTE” but provided no detail. She said she will be accused of having “direct LTTE involvement.”

3. [The second applicant] claimed fear of being persecuted in Sri Lanka for reasons of her Tamil ethnicity, her profile as a married woman living in Sri Lanka without her husband, and as a “failed asylum seeker returning to Sri Lanka from a Western country after leaving Sri Lanka illegally.”

4. At the Tribunal hearing, [the second applicant] told me she last travelled out of Sri Lanka on a genuine passport issued in 2018. Presumably she had used that passport previously to travel to India to marry her husband, since she claimed in her original statement that she had only ever been issued with one passport.

5. I asked [the second applicant] what could be wrong with Tamils in Sri Lanka donating food to local Tamil families, especially during the Covid-19 pandemic. She did not answer the question on its point, telling me, rather, that her husband used to send money to her bank account that she then passed on to [the first applicant] and [Mr A] to help other families. I asked [the second applicant] again why authorities would have had any concern at all about charitable food donations to neighbouring Tamil families at that time. In reply, she said, “The authorities thought we support those families.” I asked her what would have been wrong with that as far as the authorities were concerned, and she said that her husband was in Australia and her father could not work. She said that because her brother supported local families, the authorities came to harass and sexually harass her, by taking her “into a room” and touching her inappropriately by groping her, as she put it, over her clothes. She said this happened “several times,” and she said it was “torture.” I asked her to tell me which room she was talking about and she generalised about the room being in her house. I asked again and she generalised about the house having two rooms. She then said the room was her bedroom. It struck me as somewhat odd, in the claimed circumstances, that [the second applicant] did not refer to the room as her bedroom from the start. She had also merely called it “a room” in her original written statement of claims.

6. [The second applicant] said the authorities used to ask her about [the first applicant’s] “LTTE involvement.” She said this went on for about four or five months. [The second applicant] opined at the hearing that the authorities might eventually have been using concerns about [the first applicant] as a mere pretext, enabling them to take her aside on a regular basis ad sexually harass her by touching her inappropriately. She said in her statement , “I was told that if I didn’t cooperate with their sexual wants they would charge me with financially assisting the LTTE.” As far as the evidence provided shows, the behaviour described did not alter or evolve over the four or five months of visits to the house.

7. I put to [the second applicant] that it seemed absurd that the authorities would have been concerned about her husband sending money home to her. In reply, she said that the problem for the authorities was that she used the money to help people during the Covid-19 pandemic. She did not provide any logical or plausible argument as to why this would have been so at the time, let alone how it might give rise to a real chance of being persecuted in the reasonably foreseeable future. In her original statement of claims, she did refer very generally to the authorities’ enquiries about [the first applicant’s] “LTTE activities,” but at the hearing, the issue seemed only to involve helping people during a pandemic. Again I put to her that I could not yet understand why making food donations during the pandemic would have been a concern to the authorities. In reply, [the second applicant] said that the officers insisted that she respond to everything they asked, and then added, “I was alone [with] no male support.” Then, she appeared to vary this claim, indicating that she was not alone at the time because she was residing in the same house as both parents: she said that her father was “old.”

8. [The second applicant] said that [the first applicant] was in “hiding” at that time. She then changed the latter claim, acknowledging that [the first applicant] spent at least some of the time during that period at home. She then said, “Sometimes [the authorities] came when he was not at home.” This indicates that [the first applicant] was home during other visits, meaning that there was no lack of male support in the household. In this was [the second applicant’s] evidence about the intimidatory visits being possible because there were no males in the house seemed contradicted. Meanwhile, I note that [the second applicant] made no reference at all in her original statement of claims to [the first applicant] having spent time after 27 November 2021 in “hiding.”

9. [The second applicant] explicitly agreed with the claim about being taken aside with [the first applicant] at Colombo airport by an officer who had found a “black mark” against his name. She told me they were both taken together into a room. I put to her that I was concerned about there being no mention of this purported setback in her original statement of claims, and she said, “[The airport authorities] took us both.”

10. I asked [the second applicant] why this detail, which seemed a pretty important indicator of the trouble she and her brother might have been facing at that time, was entirely omitted from her original statement of claims. In reply, [the second applicant] said that fear had caused her not to provide more detail. I put to her the outcome was that she had provided two different descriptions of the ease with which she had been able to leave Sri Lanka through Colombo airport. In reply, she said she did not know what to tell her adviser at the time of application. She then repeated the previously-written claim about the “agent” in Sri Lanka telling [the first applicant] and herself which passport counter to attend.

11. It is already noted that [the second applicant] has mentioned her husband in Australia holding a Safe Haven Enterprise visa. She mentioned this in the context of explaining the source of funds she passed to [the first applicant] to finance his charitable works in 2020 and 2021. [The second applicant] has made no express claims at either the primary or review stage about seeking a protection visa 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.

12. Under s 65(1) of the Act, the Minister (or the Tribunal on review) must refuse to grant a visa if the grant is prevented by s 91WB, which applies to a non-citizen who applies for a protection visa and is a member of the same family unit as a person who has been granted a protection visa. That section provides that the Minister must not grant a protection visa on the basis of s 36(2)(b) or (c) (family member of a person granted a protection visa) unless the applicant had applied for the visa prior to the relevant family member being granted a protection visa.

100.   Relevant to this particular issue, there is no s 91WB refusal of the Minister to review. In any event, [the second applicant] did not apply for a protection visa prior to her husband being granted a protection visa. She indicates that her husband was granted the visa before they were even married. Even if there were an implied claim to a PV the basis of s 36(2)(b) or (c), the operation of s 91WB would mean that the Minister would have to refuse it.

Independent country information

101.   I have had regard to independent information to the effect that the LTTE has been proscribed in Sri Lanka, India, the USA, the EU, the UK and many other countries as a terrorist organisation.[15]

[15] See, for example, see also "Council Common Position 2009/67/CFSP," Council of the European Union, 26 January 2009

102.   I have had regard to information from DFAT[16] that indicates that Sri Lanka’s CID takes a close interest in vetting citizens in order to sift out LTTE activists and anyone suspected of assisting the LTTE, such as in raising funds in Sri Lanka or abroad for illegal activities:

[16] DFAT Country Information Report: Sri Lanka, 23 December 2021

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 …

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.

103.   Those with indirect and past connections with the LTTE, unless at a very high level of the organisation or expressed in criminal acts or war crimes, are unlikely to be of significant interest to the Sri Lankan security forces. Authorities distinguish between so-called “low profile’ and “high profile’ former LTTE members when assessing their potential security risk. “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. “High-profile’ former LTTE members include individuals who held senior positions in the LTTE’s military wing and civilian administration, and those suspected of terrorist or serious criminal offences during the war, or of providing weapons or explosives to the LTTE. According to DFAT, low-profile LTTE members who come to the attention of the Sri Lankan authorities – particularly if they are suspected of having a combat role during the war – would likely be detained for questioning and may be sent for rehabilitation. Following release, a low-profile former LTTE member may be monitored but would not generally be prosecuted. DFAT also reports that the number of high-profile former LTTE members living in Sri Lanka is assessed to be small and the majority have already come to the attention of authorities, with any remaining high-profile former LTTE members who came to the attention of the authorities likely being arrested, detained and prosecuted, and, on completion of their sentences, would likely be subjected to some form of rehabilitation and continued monitoring. Sri Lankan authorities may monitor former LTTE members who return from abroad.

104.   DFAT advises that the LTTE no longer exists as an organised force in Sri Lanka, with only a few incidents involving former LTTE members having been been recorded since the end of the civil war. DFAT cites one example of a Tamil family, including a woman alleged to be a former LTTE cadre, being  stopped in December 2020 while travelling from Kandy to Jaffna in possession of what police said was an explosive, and also one instance, in July 2020, of a failed attempt by a former LTTE cadre to carry out a suicide bombing. Nevertheless, DFAT reports, the government has remained sensitive to the potential re-emergence of the LTTE, and observes that former LTTE members may be monitored. It is relevant that the United Nations High Commissioner for Human Rights (UNHCHR) reported in September 2022, at some variance with information shared by DFAT, that former LTTE members, including women, are still subject to intensive surveillance, whether they have undergone rehabilitation or not. Northern Province sources allege that security services’ intimidation of ex-LTTE members increased after the Sri Lanka Podujana Peramuna (SLPP) swept local government elections in February 2018, while there were reports following the 2019 Easter Sunday bombings that Sri Lankan security forces sought to co-opt ex-LTTE members as informants. The extent of monitoring typically depends on an individual’s seniority within the LTTE; ongoing involvement with politically-sensitive issues, including protests relating to disappeared persons; and links to the Tamil diaspora, particularly elements considered radical by the government. The Asian Tribune[17] cites the example, in June 2020, of a prominent Norway-based activist who was reportedly detained at Colombo’s airport when seeking to leave Sri Lanka – he was released after questioning. The Tamil Guardian reported in 2020[18] that Defence Secretary Kamal Gunaratne was claiming at the time that remnant members of the LTTE were attempting to recruit new supporters and vowed the government would not permit room for separatism. It is apparent from this that some amongst Sri Lanka’s authorities try to keep society vigilant against, as it were, even the smallest “shard” of the LTTE’s former membership from re-grouping, even if only to enhance the profile of the government.

[17] “Key LTTE activist in Norway - Nadaraja Sethuparan arrested at BIA,” Asian Tribune, 23 June 2020

[18] “Sri Lankan Defence Secretary claims 'need to eliminate separatist ideology’ in North-East and Tamil diaspora,” Tamil Guardian, 17 August 2020

105.   Central to both applications before me is the subject of selective provision in [Town 2], Vavuniya, of subsistence aid to widows and orphans of deceased Hindu Tamil (and therefore quite likely LTTE or pro-LTTE) combatants. The claim, as put, argues that such selective aid attracted suspicion from Sri Lankan authorities who, it is suggested, were of the view that the assistance should be distributed to other Hindu Tamil families as well. Relevant to this, I have located independent evidence of recent state-operated programmes in Sri Lanka’s north, including [Town 2], Vavuniya, similarly selectively aimed at rehabilitating families of former combatants.

106.   Sri Lanka’s Bureau of the Commissioner General of Rehabilitation[19] describes a relevant project in the north of the country in the following terms:

[19]

Rehabilitation of Ex-Combatants

OBJECTIVES

To Induct and prepare them for Rehabilitation ensuring a better environment for the beneficiaries enabling them to enjoy the basic human needs.

Provide appropriate therapies for beneficiaries upon a detailed study on education, socio - economic and health profiling.

To conduct catch up educational programmes for those in need (done previously for ex-combatants). Rehabilitation and Social Reintegration of beneficiaries as useful citizens.

Improve and enhance the skills of beneficiaries to be useful human capital. To evaluate, assist and provide financial & material support to reintegrated beneficiaries in order to uplift their socio - economic standards and Livelihood Development.

To conduct language training in centers, in keeping with Tri Lingual Policy. Conduct IT training for beneficiaries and their children to enhance skills.

To promote & ensure Reconciliation through sports. To make beneficiaries and their families respect each other’s Culture, Values & Norms. Conduct Personality Development and Leadership Training for beneficiaries. To conduct awareness programmes for families (of those beneficiaries) and the society at large.

165.   I do not know what [the first applicant] will tell Sri Lankan consular authorities in Australia about how, where or when he ceased to possess his genuine passport. As in the case of [the second applicant], I proceed on the assumption that he has not yet reported it taken, stolen or lost. He might be asked why he took so long to report the missing passport. In any event, I am not satisfied, on the evidence before me that this will lead separately or cumulatively to any relevant harm, let alone serious or significant harm.

166.   I find that on arrival at Colombo airport, [the first applicant] will present a single-use travel document obtained from Sri Lankan consular authorities here in Australia. I accept that airport immigration officials will easily be able to observe that this will have been the second time that [the first applicant] has returned to Sri Lanka on a single-use travel document. According to DFAT, the sighting of this document will likely trigger some interest on the part of the Chief Immigration Officer on the day. I can therefore accept that [the first applicant] may be asked if he last departed Sri Lanka legally or illegally, if that information is not already at hand. Given that he recently departed Sri Lanka on a valid passport, I find that it will be easy for any Immigration official to confirm that he last departed Sri Lanka legally and has only ever legally departed the country previously. I find that if he is asked what happened to his last valid passport he will likely say he lost it. I find he will be highly unlikely to say he gave or sold it to a people smuggler. I also consider it to be in the realm of mere speculation that he will be suspected or presumed to have given or sold his passport to a people smuggler. There is no evidence before me to suggest that a person who has twice left Sri Lanka on a valid passport and who then twice returns on a single-use travel document accumulates any potentially relevant, negative profile with Sri Lankan authorities, let alone that he will attract imputations of association with the LTTE or any other criminal enterprise, even if his background is checked by Immigration or other agencies. [The first applicant] mainly claims that the “LTTE” inference will be drawn at least in large part due to the profile he already has, but as shown above I do not accept that he has any such profile.

167.   I accept that, in the event of return or removal to Sri Lanka, [the first applicant] may well be assumed by Sri Lankan authorities to be a “failed asylum seeker.” I accept that this presumption may be formed even before he arrives back in Colombo airport, as it will likely be Australian authorities contacting the Sri Lankan Consulate to arrange issuing of a single-use travel document for him. Giving weight to the independent reporting on this subject, I am not satisfied, on the evidence before me, that a presumption of [the first applicant] having been a “failed asylum seeker” will give rise to his being persecuted, separately or cumulatively. As discussed earlier, I do accept on the evidence before me that failed asylum seekers may be monitored for some time by authorities in their home districts, such as through CID telephone calls and visits to their homes. It seems likely that [the first applicant] will be monitored in this way at least for some months. However, I am not satisfied on the evidence before me that this will amount separately or cumulatively to his being persecuted. I do accept that failed asylum seekers may have to endure, at least temporarily, some economic hardship or setbacks, particularly if they are not skilled, but I am not satisfied that this will involve or amount to relevant, let alone serious, harm in [the first applicant’s]s case. No evidence before me suggests that [the first applicant] will be unable to resume work locally in his previous field. I am not satisfied that he will face, in the community, discrimination amounting to serious harm in the reasonably foreseeable future either separately or cumulatively on account of being a Tamil or a Hindu, or any other factor combining with his ethnicity.

[The first applicant] and [the second applicant]

168.   I am not satisfied that either [the first applicant] or [the second applicant] faces a real chance of serious harm amounting to persecution for reasons of being related as siblings to each other.

169.   Having considered all of the evidence in this matter in its totality, I am not satisfied that either [the first applicant] or [the second applicant] faces a real chance of being persecuted, separately or cumulatively, in Sri Lanka in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the Act. Their claimed fear of being persecuted is not well founded. They are not refugees.

170.   For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a). ). 

Findings in relation to s.36(2)(aa) of the Act

171.   Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) 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.

172.   Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

173.   “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.

174.   Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.

175.   “Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.

176.   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.

177.   Accepting that the applicants are nationals of Sri Lanka, I find that Sri Lanka is the receiving country in this matter.

178.   The applicants’ claims to complementary protection are essentially the same as their refugee claims. Their respective claims have failed for want of credibility in each separate case and because they do not meet the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, the applicants’ protection claims can no more succeed as complementary protection claims than they have as refugee claims.

179.   Some of the applicants’ claims do not necessarily relate to s.5(1)(a) of the Act and therefore warrant separate attention here. For example, there is the claim, at least implied, about Sri Lanka currently or at least recently having been beset by social, economic and political instability. However, I find that the fear of harm here is not one that is faced by the applicants personally but one that is faced, rather, by the population of the country generally. In any event, that current conditions in Sri Lanka will give rise to a real risk of significant harm to either applicant is based purely in bald speculation, such that I am not satisfied that there is a real risk of significant harm.

180.   On consideration of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Sri Lanka, there is a real risk that either applicant will suffer significant harm as exhaustively defined under s.5(1) of the Act.

181.   Accordingly, I am not satisfied that either applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

Conclusions

1. For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.

   Other findings

183.   There is no suggestion that either 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. In [the second applicant’s] case, in particular, s.91WB inevitably bars satisfying s.36(2)(a) or (aa). Accordingly, neither of the applicants can satisfy the criterion in s.36(2).

DECISION

184.   The Tribunal affirms the respective decisions not to grant the applicants protection visas.

Luke Hardy
Member

Attachment  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…

Mullaitivu, Sri Lanka, 2019,