2301635 (Refugee)

2301635 (Refugee) [2023] AATA 4104 (21 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE AT HEARING:Mrs Nimalini Ambikaipalan, together with Miss Netania Lim
CASE NUMBER: 2301635

COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Peter Haag
DATE:21 September 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).

Statement made on 21 September 2023 at 10:14am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Court remittal – race – Tamil – religion – Muslim – imputed political opinion – perceived involvement with the Liberation Tigers of Tamil Eelam – particular social group – failed asylum seeker – suspected weapons supply – abduction of brother – detention – fear of killing – 2019 Easter Sunday terrorist attacks – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 46, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to sections 431 and 440 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 18 June 2012 and the delegate refused to grant the visa on 22 October 2012 on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
On 31 October 2012 the applicant lodged an application with the Tribunal for review of the visa refusal decision (AAT case no. 1216854) and on 12 May 2014 the Tribunal affirmed the refusal decision. [In] September 2015 the Federal Circuit Court of Australia ordered that the decision of the Tribunal be quashed, and the matter be remitted to the Tribunal to be reconsidered according to law.
On 29 August 2016, the Tribunal, differently constituted (AAT case no. 1514305), affirmed the visa refusal decision. [In] December 2022, the Federal Court of Australia ordered that the decision of the Tribunal of 29 August 2016 be quashed, and the matter be remitted to the Tribunal, differently constituted, to be reconsidered according to law.
The applicant appeared before the Tribunal on 12 September 2023 to give evidence and present arguments.
The applicant was represented in relation to the review.
Prior to hearing the applicant requested that [Wife A], his wife and mother of their [child], born in Australia on [date], give evidence in support of his application. During the hearing it became evident that [Wife A] would not be able to give evidence relevant to the applicant’s protection claims. After discussion with the applicant’s representative, the representative and the applicant indicated to the Tribunal that [Wife A] was not able to give evidence relevant to the merits of the applicant’s claims, and it was unnecessary to take evidence from her.
The Tribunal informed the applicant in the context of this discussion that the Tribunal would have regard to the contents of [Wife A’s] statement[1] for the purposes of whether to recommend Ministerial intervention, in the event his application was unsuccessful before the Tribunal. The applicant and his representative acceded to the Tribunal taking this this course of action.
[1] Tribunal file, Doc id. 11482056.
The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Applicant’s background
In his application for a protection visa, the applicant claims to be a citizen of Sri Lanka, born on [date] in [Town 1], Gampaha province, Sri Lanka. The applicant claims to be an ethnic Tamil of Muslim faith who can speak, read and write in Tamil, and speak Sinhalese and English.
In an attachment to his visa application form, the applicant provided details of his mother, father (deceased), [and specified family members], who at the time of the visa application were all citizens of Sri Lanka residing in Sri Lanka.
In an attachment to his visa application form, the applicant stated that between 2010 and February 2012, he was residing in Jakarta, Indonesia. Between late 2009 and 2010, for approximately two months, the applicant was residing [elsewhere in] Indonesia. From the middle of 2009 to late 2009, the applicant was residing in [Country 1]. In the middle of 2009, the applicant briefly resided in [Country 2]. From late 2008 to the middle of 2009 the applicant resided at various addresses, including [specified towns in] Sri Lanka. From [birth] to late 2008 the applicant resided in [Town 1], Gampaha province, Sri Lanka.
In an attachment to his visa application form, the applicant stated that he completed his secondary schooling between [specified years] in [Town 1], Sri Lanka. He stated that he completed a [specified] course in [year] during his secondary schooling. He did not provide any other education details.
In an attachment to his visa application form, the applicant stated that he had previously been employed as a retailer/wholesaler in his father’s shop in Colombo, Sri Lanka, between [year] and 2008. He was unemployed from late 2008 to 2012.
Applicant’s identity
The applicant provided the Department with copies of his birth certificate, his Sri Lankan National ID card, his mother’s birth certificate and Sri Lankan Red Cross Society card and certificate.
The documents provided by the applicant are consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that he is a citizen of Sri Lanka, and as such his protection claims will be assessed against Sri Lanka as the country of reference and ‘receiving country’ respectively.
Migration history and history of the applicant’s claims for protection from persecution
According to the applicant’s written and oral evidence, he departed Sri Lanka [in] July 2009 using an official passport issued in his own name and flew to [Country 2]. He then travelled overland to [Country 1] where he remained until 2010. From [Country 1], the applicant boarded a boat for Australia which was intercepted by the Indonesian Navy. The applicant remained in Indonesia between 2010 and 2012.
The applicant departed Indonesia by boat (‘[code name]’) and arrived at Christmas Island [in] February 2012.
On the day after his arrival, he attended an interview with an officer of the Department of Immigration and Citizenship, as it was then named, and a second interview on 9 May 2012. Essentially, in both interviews (entry interviews) the applicant claimed he would be persecuted if he remained in or was removed to Sri Lanka. The applicant gave an account of circumstances in Sri Lanka that amounted to the reason his mother insisted, and he decided to leave Sri Lanka and claim asylum in Australia.
In June 2012, based on information provided by the applicant about his circumstances in his home country, the Minister exercised the power under s 46A of the Act (as the Act then was) to lift the bar which precluded the applicant from applying for a protection visa.
On 14 June 2012 the applicant lodged an application for a protection visa which was refused by the delegate of the Minister on 22 October 2012.
It is convenient at this point to rehearse the applicant’s visa history.
The applicant applied to the then Refugee Review Tribunal (RRT) for merits review of the decision of the delegate. In May 2014, the RRT affirmed the decision of the delegate.
In September 2015, the Full Court of the Federal Court of Australia (FCFCOA) found the decision of the RRT was affected by jurisdictional error. The Court found that the RRT failed to consider the applicant’s claimed fear of harm based on him being Muslim and ordered the RRT to reconsider the matter according to law.
In April 2016, the applicant attended a hearing before the Tribunal where he was assisted by an interpreter. On 29 August 2016, the Tribunal (differently constituted) decided against the applicant and affirmed the decision of the delegate.
The applicant sought judicial review of the Tribunal’s decision. The primary judge dismissed the application.
[In] March 2021, the appellant (the applicant in proceedings before the Tribunal) filed a notice of appeal to the Federal Court of Australia (FCA). By written judgment published [in] December 2022,[2] [Judge A] allowed the appeal in part, set aside the Tribunal’s decision, and ordered the appellant’s application for a protection visa be reconsidered by the Administrative Appeals Tribunal (AAT) (differently constituted) according to law: [citation deleted]. (By way of legislative reform, the AAT superseded the RRT.)
[2] [Citation deleted].
The foregoing summary of the applicant’s migration history, was relevantly extracted from the decision of [Judge A]; it is consistent with the applicant’s case in this review, and it is not in dispute: [1] – [8].[3]
[3] Ibid.
Later in these reasons the Tribunal will further elaborate on the applicant’s migration history.
It falls to this Tribunal to reconsider the applicant’s application for a protection visa.
Claims for protection and other supporting documentation
It is convenient to restate here that the applicant attended two entry interviews with an officer of the Department of Immigration and Citizenship. They were held [in] February 2012 and 9 May 2012.[4]
[4] Department file [number], Doc ID 10745880, folios 11-1.
After the entry interviews, and in response to a favourable exercise of the Minister’s discretion to enable the applicant to apply for a protection visa, the applicant’s claims for protection were submitted in the following statement attached to his protection visa application, signed and dated 14 June 2012:[5]
[5] Ibid, folios 49-54.
1. I was born in Gampaha in Sri Lanka on [date]. I am [age] years old.
2. I am Tamil and Muslim.
3. I fear that if I was forced to return to Sri Lanka I would be at risk of being harmed because of my race and religion. I also fear risk of serious harm due to my imputed political opinion and membership of a particular social group because of my perceived involvement in terrorist activity and because I left Sri Lanka to seek protection.
My family background
4. I grew up in Gampaha where I lived with my family.
5. My father had a shop in Colombo which is about an hour from our home. I attended school and worked in the shop as well. I have many brothers and sisters.
6. One of my brothers, [Brother A], had supported the United National Party and had been involved in the campaign elections. I also sometimes helped my brother, but I was not as involved as him. For example, I would stick up campaign posters.
Detention of my brother by the police
7. My father had a shop. He passed away when I was at school. My brother, [Brother A], took over the business after my father passed away. After I finished school, I began working in our family business.
8. My problems in Sri Lanka started in about late 2008. I was working in my family's shop with my [Brother A]. [Other siblings] were married and were employed elsewhere.
9. As part of the family business, we used to do deliveries for customers. We had a storeroom with both our goods, as well as goods provided by other suppliers, that we would deliver to customers. The suppliers would leave their own items in boxes which were sealed and labelled by them. We did not have a practice of breaking open the sealed boxes and checking the contents of the boxes.
10. In about late 2008, I was told that an armed group came to our store in a van. I was not there as I was out delivering goods, but my brother, [Brother A], was in the shop at the time. An employee was in the storeroom which is nearby to the shop. We thought that the men were from the Criminal Investigation Division (CID). The boxes were searched and I was told that the CID found arms in one of the large boxes.
11. I am not sure why they came. It is possible that we were targeted because we are a Tamil owned business delivering goods to areas, including Tamil areas.
12. The men questioned my brother. I was told that my brother tried to explain that we are only a delivery service for suppliers and do not check the contents of the boxes. During the questioning, my brother also mentioned that I was also in charge of the store. The men took my brother in the van and said that they were taking him to the police station. They left a message with the other employees who were in the shop that I must report to the police when I return to the shop.
13. The employees in the shop telephoned me and told me about what had happened and said that I must come back to the shop immediately.
Enquiries about my brother's whereabouts
14. When I returned, I went to the police station to make an enquiry as to my brother's whereabouts. The police said that no one had dropped my brother at the police station and that so far they had not received any report. They said that they would contact me if they knew anything further and I gave them my details. I continued to ask about what had occurred to my brother. However, as I spoke to them, it became more heated. So I decided not to wait at the police station for my brother.
15. I went home to my family's house and explained the situation.
16. Afterwards, I went to the local police to enquire about my brother. The police were not willing to accept my enquiry. I tried to explain what had occurred and that I wanted to make an police entry, but the police started abusing me that I had been involved in terrorist activities and was assisting the L TTE. The local police threatened to arrest me, so I returned home.
17. When I got home, my mother said that it was not a good idea for me to stay at home for a while given what had occurred. So I went and stayed elsewhere.
Hiding from the Sri Lankan authorities
18. A little while after I had been in hiding, my mother told me that an armed group had come in a van and were searching for me. They told my mother that they were looking for me and stated my name. My mother confirmed that I was her son, but said that I was not here. They told my mother that once I returned home, I must report to the police immediately and not hide myself.
19. My mother was crying and told them that they have already taken one son and that she didn't ~e was. They told my mother that they have my brother in custody and that my brother will not be released until I report to them.
20. My mother phoned me after the CID left and told me that I must not come home. She was scared that if came back then what happened to my brother would happen to me. My mother told me that the authorities continued to come to my mother's house frequently after that in search of me. They continued to threaten my mother. They told her that I must report to them and if I didn't and they caught me that they would shoot me. I had to remain in hiding and stayed in various places.
21. Due to the problems, my family had to close the shop.
22. I decided that I could not continue living in hiding in fear for my safety. I began making arrangements to leave Sri Lanka. [Details deleted] and although I did not want to leave my country, I knew that I would not be safe if I stayed. My mother also encouraged me to leave as she was scared for me. We both feared that I would be detained or killed or subjected to enforced disappearance by the Sri Lankan authorities like my [Brother A].
Seeking protection
23. In about mid-2009, I flew to [Country 2] on a passport that had been issued when I was younger. I entered [Country 1]. I wanted to get to Australia in order to seek protection.
24. I took a boat heading to Australia. When we were on our way, the Indonesian authorities caught us. We explained to the Indonesian authorities that we are refugees going towards Australia to seek protection. The Indonesian authorities took custody of us. We refused to disembark the boat in Indonesia. We were on the boat for a long time.
25. I found out that this incident was reported in the media. In some of the media, it was reported that we were Tamils seeking protection from the Sri Lankan authorities. However, we found out that some of the Sri Lankan media reported that a number of Tamils were seeking protection, but that we were L TTE suspects and should be sent back to Sri Lanka. Our identity was published widely, including media clippings in the news in Sri Lanka. My family told me that they saw me on the Sri Lankan TV news.
26. Eventually, I managed to get off the boat and swim to shore with some others. I lived in Indonesia for some time.
Living in Indonesia and coming to Australia
27. When I was in Indonesia, I approached the UNHCR for assistance.
28. I heard that boats were going from Indonesia to Australia and took one of these boats. I arrived on Christmas Island [in] February 2012.
29. I also wanted clarify that my national ID card says it was issued [in] 2009. I had applied for it much earlier before the problems began for me in Sri Lanka. It took a very long time for it to be issued. It was only issued while I was away from Sri Lanka. My family sent me a copy of it.
What I fear would happen if I was forced to return to Sri Lanka
30. I fear that I would be detained, tortured or even killed if I was returned to Sri Lanka. There is nowhere safe for me in Sri Lanka.
31. Even though I left Sri Lanka some time ago, my brother is still missing. Since I have been away, my mother has informed me that the authorities have continued to search for me.
32. Recently, when I was in Australia, my mother informed me that the authorities had come to her house asking for me. I am still of interest to the Sri Lanka authorities. I fear that I would be subject to serious harm if I was forced to return. My situation is aggravated by the fact that I left Sri Lanka after the authorities began searching for me and my disappearance would have increased my profile to the authorities.
33. I also fear that I will face serious harm from the authorities as a Tamil who has left Sri Lanka seeking protection. I think that the authorities would be aware that I had sought protection, particularly as a result of the press reports about the boat. I fear that the Sri Lankan authorities will target me because I will be perceived as expressing a political opinion against the Sri Lanka government or as a L TTE suspect.
34. As I fear serious harm from the state authorities, there is no one to protect me in Sri Lanka. The harm that I fear is not localised to any particular area and I would face serious harm throughout Sri Lanka. The Sri Lankan authorities would be able to trace me. As a Tamil, we are looked at with suspicion. When we go to new areas, we are generally required to register with the authorities.
35. For all of the above reasons, I ask the Australian government to protect me and not send me back to Sri Lanka.

On 18 June 2012 the applicant attended an interview with the Department.[6]
[6] Department file [number], Doc ID 10745885.
On 30 August 2012, in response to a request from the Department for further information, the applicant’s legal representative submitted to the Department three photographs allegedly of the applicant aboard the ‘[Boat 1]’ boat and one photograph of the applicant arriving at Christmas Island.[7]
[7] Ibid, Doc Id 10745891.
On 21 September 2012, in response to a request from the Department for further information, the applicant’s legal representative provided the Department with written submissions.[8]
[8] Ibid, Doc Id 10745897.
On 16 October 2012, in response to a request from the Department for further information, the applicant’s legal representative provided the Department with further written submissions.[9]
[9] Ibid, Doc Id 10745893.
On 4 March 2013, the applicant attended a hearing at the Tribunal to give oral evidence and present arguments in support of his visa application.[10]
[10] Tribunal file 1216854, Doc Id 1323465.
On 25 March 2013, the applicant’s legal representative provided the Tribunal with written post-hearing submissions.[11]
[11] Ibid, Doc Id 1346947.
On 21 April 2016 the applicant attended an in-person hearing at the Tribunal to give oral evidence and present arguments in support of his visa application.[12] His application was unsuccessful.
[12] Tribunal file 1514305, Doc Id 2810207.
On 23 August 2023, the applicant provided the Tribunal, as presently constituted, with the following documents:[13]
·Commonwealth of Australia Certificate of Marriage, between the applicant and [Wife A], dated [in] July 2023;
·Birth certificate for the applicant’s [child], born on [date] and registered in Victoria, Australia [in] 2023.
[13] Tribunal file 2301635, Doc Id 11429728.
On 5 September 2023 the applicant provided the Tribunal with the following documents:[14]
·Legal submissions prepared by the applicant’s legal representative;
·Written statement from the applicant’s wife, signed and undated;
·Letter of support from the applicant’s employer, unsigned and undated;
·Two unlabelled photographs;
·Video of a short promotional feature for a documentary on Channel 4 titled ‘Sri Lanka’s Easter Bombings’ to be aired on 4 September 2023.
[14] Ibid, Doc Id 11482056.
On 6 September 2023 the applicant submitted to the Tribunal the following documents:[15]
·Online News article titled ‘Sri Lanka’s Parliament and Cabinet discuss allegations on Easter attacks’, published on 5 September 2023 by the Colombo Gazette;
·Online News article titled ‘Sri Lanka’s Easter Bombings review – startling and deeply disturbing viewing’, published on 6 September 2023 by The Guardian;
·Eight photographs said to depict the applicant aboard a refugee boat anchored in [a location], Indonesia. [Details deleted.]
[15] Ibid, Doc Id 11483040.
At hearing the applicant gave evidence that was substantially consistent with the claims he relied on prior to the decision of the FCFCOA,[16] remitting the application for a protection visa to the Tribunal because the RRT failed to consider the applicant’s claimed fear of harm based on him being a Muslim.
[16] September 2015: reference [29] in these reasons.
The inconsistencies and omissions given by the applicant over the 11 years his visa application has been under consideration and tested in various interviews with Department officials, and one legal forum and another, may have arisen from the frailties of human memory over time, the effluxion of time, and with the assistance of various interpreters, repetition of the same events in the various interviews and legal forums referred to in these reasons. That process began when the applicant was first interviewed by a Department official the day after he arrived on Christmas Island in 2012.
Bearing in mind the matters where relevantly referred to in the previous paragraphs, the Tribunal has considered the discrepancies in the applicant’s descriptions of his reasons for claiming asylum.
After considering the discrepancies in the applicant’s description of his role in his family’s business in Sri Lanka; the circumstances of the alleged disappearance of his brother; the alleged role of the Criminal Investigation Department (CID) in his brother’s disappearance; the endeavours of the CID to detain the applicant; the evidence that the applicant was a prominent passenger on the ‘[Boat 1]’ boat, and the claimed strong financial position of his family in Sri Lanka; the Tribunal is of the opinion that the discrepancies may be explicable by the ordinary frailties of human memory over time, and repetition of the same events on many occasions, done with the assistance of various interpreters following the first official interview of the applicant on Christmas Island the day after he arrived.
Discrepancies in the applicant’s evidence were identified and carefully analysed by [Judge A] in [his judgement], and it is unnecessary for the Tribunal to specifically rehearse those discrepancies in these reasons.
As the Tribunal understands from [Judge A’s] Reasons for Decision, he found the inconsistencies and omissions in the applicant’s accounts of his reasons for claiming asylum to be relevant, but inefficiently material in nature to provide a satisfactory basis for the rejection of his protection claims.
That said, the proceeding before the Tribunal is a de novo hearing, and it behoves the Tribunal to consider the whole of the evidence, and to independently reach its own assessment of the veracity and reliability of the applicant as a witness, and the evidentiary significance to be attributed to discrepancies and omissions in relevant information and evidence before the Tribunal.
The Tribunal is of the opinion that the inconsistencies and omissions apparent in the applicant’s various retellings of the circumstances in his home country, may be explicable on the basis that the applicant is an unreliable witness. The inconsistencies and omissions may also be reasonably explained by a combination of factors, being the ordinary frailty of human memory over time, the effluxion of time, and the applicant with the assistance of various interpreters, repeating his account of the same events on multiple occasions during the period of about 10 years preceding his successful appeal to the Federal Court of Australia in [cited case].
Where two explanations for discrepancies in the evidence are reasonable open, and the Tribunal is unable to prefer on reasonable grounds, one explanation over the other, the Tribunal is constrained from finding the discrepancies provide a sufficient basis upon which to find the applicant is an unreliable witness, and to reject his claims. Therefore, the Tribunal puts to one side the discrepancies and omissions that were considered by [Judge A] in [cited case] and gives them neutral weight.
The Tribunal will decide this case based on the claim which the Tribunal finds is sufficient to decide the application, and the evidence the Tribunal finds to be relevant, credible, and material to the claim.
The determinative claim
The determinative claim in this case is whether the evidence establishes to the satisfaction of the Tribunal:
·the existence of a real chance or a real risk the applicant would be persecuted in Sri Lanka for a combination of reasons, namely, being an involuntary returnee and failed asylum seeker, imputed political opinion (Tamil separatist), race (Tamil) and religion (Muslim), if he were removed to Sri Lanka now, or in the reasonably foreseeable future.
It is relevant to consider whether the applicant arrived in Australia seeking a better economic future and not as a genuine refugee.
According to the applicant’s evidence, he was able to pay for his flight from [Country 1] to [Country 2], subsist in [Country 2] and [Country 1], purchase passage from [Country 1] to Indonesia on the ‘[Boat 1]’, a small ship, and subsist for a period of months in Indonesia before purchasing passage on a second ‘people smuggler’s vessel’ to Christmas Island, because he had access to family money. At all material times the applicant has consistently asserted that his father established a successful [business] in Colombo, the capital city of Sri Lanka. The business dealt in [related products]. The applicant and his brother [Brother A] worked in the business.
According to the applicant’s evidence the applicant and [Brother A] managed and operated the business after they inherited it from their father.
The business operated out of two different premises in Colombo. One was a retail shop, the other was a storehouse. Goods were delivered by various suppliers to the storehouse, and from there the goods were distributed to either their retail shop or customers in different parts of the country.
In essence the applicant asserts his family in Sri Lanka was relatively wealthy, and they are still relatively wealthy. Family wealth gave him the financial means to leave Sri Lanka in 2009 by bribing an airport official to allow him to pass through the airport without interference,[17] subsist and purchase passage by aeroplane, train, and two seagoing vessels, arranged by people smugglers, to Christmas Island.
[17] This claim was first made in the entry interviews.
The applicant said in evidence he had a good life in Sri Lanka. The family was wealthy. He was happy there. He enjoyed working in the family-owned business with his brother [Brother A]. By contrast, his life as a wandering refugee before he arrived in Australia was filled with hardship, exploitation, and deprivations that were an unavoidable outcome of being obliged to leave Sri Lanka to avoid sharing in the fate of his brother [Brother A].
At all material times the applicant has said his brother [Brother A] was kidnapped by members of the CID, removed from the family business in a white van and never seen again. The CID accused [Brother A] and the applicant of being Tamil separatists because they were receiving and distributing [specified products] to the Liberation Tigers of Tamil Eelam (LTTE).
For decades the LTTE was involved in a bloody civil war with the Singhalese dominated government of Sri Lanka: DFAT Country Information Report, Sri Lanka (December 2021) (DFAT report) [2.1] – [2.5].
In essence the LTTE were separatists, using armed forces to advance the cause of Tamil statehood: DFAT report [2.2].
The applicant admits that in the ordinary course of operating their business they received goods from various suppliers into their storehouse. They then distributed goods they sold, or goods their suppliers wanted them to distribute to the supplier’s customers. They distributed goods to their own customers and at the direction of various suppliers, to individuals in northern regions of the country where most of the population is Tamil, and where the LTTE controlled large areas of land.
The applicant also admits they did not search the containers they were asked to distribute into the LTTE controlled north of the country. The containers were sealed.
Before [Brother A] was taken away in a white van, the applicant was informed by staff who were present at the time, that the CID searched their business premises before they put [Brother A] into the van. The CID alleged against [Brother A] that their [business] was supplying [specified products] to the LTTE. The CID left a direction for the applicant to attend their offices if he wanted to see his brother again.
Instead of going to the CID offices, the applicant attended the nearby general police station to enquire after [Brother A]. The applicant was afraid of the CID (as distinct from police responsible for general community policing). Members of the CID were infamous for using white vans for transport when they were arbitrarily dealing with Tamils who were of interest to them: (refer to the DFAT report generally).
The generalist police told the applicant they had no record of [Brother A] being brought to the police station building and they were unaware of his whereabouts. The interaction became heated, and the applicant quickly left the police station fearing he may be arrested and handed over to the CID.
The applicant’s mother warned the applicant that his brother had been ‘disappeared’ by the CID, and he would be next. She insisted the applicant should leave the country as soon as possible if he was to survive.
In evidence the applicant was adamant that [Brother A] has not been seen since their business premises were searched, and [Brother A] was taken by the CID.
To summarise, the applicant contends by clear inference, he is not an economic refugee. He did not leave his home country in 2009 to enjoy better economic circumstances in Australia, relative to his economic and personal circumstances in his home country, because there he owned and operated a well-established and successful business in partnership his brother [Brother A], and he enjoyed a happy and comfortable life with his extended family prior to the forced disappearance of [Brother A].
The DFAT report provides information that lends some credibility to the applicant’s description of the arrest and disappearance of his brother.
The DFAT report states at [4.6] that:
Systematic abductions using white vans, often leading to enforced disappearances, occurred during the war and in the period after. The term ‘white van abductions’[18] describes instances where individuals were abducted by unknown perpetrators in unmarked vehicles and were mostly never seen again. In its September 2021 report, Sri Lanka: Torture & Sexual Violence by Security Forces 2020-21, the ITJP reported on 15 cases of abduction, torture and rape of Tamils in the north and east by security forces since the change of government in 2019, purportedly for participation in commemorative events, or protests, or for receiving funds from abroad. In September 2021, the UN Report of the Working Group on Enforced or Involuntary Disappearances noted that more than 6,000 cases remain outstanding in Sri Lanka (though most date back to war time) and criticised the Government for a lack of accountability with regard to such disappearances.
[18] Emphasis added.
At [4.6] the DFAT report also states:
In September 2021, the UN Report of the Working Group on Enforced or Involuntary Disappearances noted that more than 6,000 cases remain outstanding in Sri Lanka (though most date back to war time) and criticised the Government for a lack of accountability with regard to such disappearances.
Additionally, at [4.5] the DFAT report states:
While there is no agreed figure, the number of missing or disappeared persons in Sri Lanka is thought to rank among the highest in the world. In June 2016, the ONUR said 65,000 people were missing from the war with the LTTE and separate Marxist insurrections (including members of the armed forces and police identified as missing in action). In 2018, OMP estimated at least 20,000 people had disappeared without explanation and remained missing since 1983. The majority of the missing or disappeared are from the north and east and are likely to have been members or perceived supporters of the LTTE.
The foregoing DFAT country information reflects circumstances in Sri Lanka at the time and after the applicant resided there.
Having carefully considered the applicant’s evidence, and the cited country information, the Tribunal is persuaded the applicant is not an economic refugee.
The Tribunal is also satisfied it is reasonably likely [Brother A] was taken by state security officials, after they searched the brothers’ business premises for contraband awaiting delivery into areas of the country controlled by the LTTE, and that the applicant and his family hope he will be found one day, but they believe he was killed by his abductors.
The Tribunal is also satisfied it is reasonably likely the security officials were investigating [Brother A] and the applicant upon the suspicion that their allegiance was to the establishment of a separate Tamil state, and to that end, they were using their business to supply contraband to the LTTE. Additionally, the Tribunal is satisfied it is reasonably likely members of the state security apparatus would have apprehended the applicant if he did not leave Sri Lanka shortly after [Brother A] was ‘disappeared’.
The applicant asserts a factor that would add to the risk of harm he would be subjected to in Sri Lanka, arises from his presence on the ‘[Boat 1]’ boat when it was intercepted by Indonesian authorities and held in [a named location] during a six-month standoff between the passengers and Indonesian authorities in late 2009 and early 2010.
The passengers refused to leave the vessel protesting they are Tamils, suspected of supporting the LTTE, who would be ‘disappeared’ if they were removed to Sri Lanka. This situation was widely reported internationally, and the Tribunal considers the episode to be a matter of common knowledge.
The Tribunal has considered the applicant’s evidence at hearing and the 21 photographs taken on board a large boat said in evidence to be the ‘[Boat 1]’ boat. The applicant is readily identifiable in most of the photographs as a younger looking man than he appeared to be at hearing.
The Tribunal is satisfied the applicant was a readily identifiable passenger on the ‘[Boat 1]’ boat. The Tribunal is also satisfied the applicant, along with other Tamils aboard the vessel, refused to disembark. Their refusal was persistent for about six months, because they feared they had been classified as terrorists, and if they disembarked they would be persecuted because the Indonesian authorities would remove them to Sri Lanka.
In post-hearing submissions the applicant placed reliance on copy documents provided by [Agency 1], and other documents referring to reports about [Tamils] who were onboard the ‘[Boat 1]’ boat, and returned to Sri Lanka, who were said to have been arrested and persecuted upon their return. The applicant also provided audio visual reportage ([citation deleted]) which characterises the passengers aboard the ‘[Boat 1]’ as suspected LTTE terrorists fleeing Sri Lanka.
The applicant provided another statutory declaration dated 15 September 2023, in which he reasserts, with reference to examples, that Tamils on the ‘[Boat 1]’ boat who return to Sri Lanka will be arrested, tortured and ‘disappeared’.
Moving now to more immediate circumstances: returnees who departed Sri Lanka illegally, upon arrival at the airport, will be referred to the CID, arrested and charged accordingly: DFAT report [5.17]. The Tribunal is not satisfied the applicant would be detained as an illegal departee, because the Tribunal finds the applicant departed Sri Lanka legally.
According to the DFAT report, it is evident the applicant, upon being removed to Sri Lanka, would present to the authorities as a person returning to the country involuntarily, as an unsuccessful asylum seeker and that he would be detained upon arrival: [5.17]. He would be detained and interviewed by state officials in relation to the circumstances of his departure and his personal history. Given his presence on the ‘[Boat 1]’ boat and the forced disappearance of [Brother A] at the hands of state security, based on country information, it is reasonably likely the applicant would be interviewed by agencies such as the CID and members of the various Sri Lankan intelligence services.[19]
[19] DFAT report [5.17].
Relevantly, the applicant does not have a Sri Lankan passport. He could travel to Sri Lanka on contemporary travel documents. Consequently, during his post arrival detention and processing, he would be investigated for the purpose of verifying his identity.[20] This process includes communication with local police in his hometown, contacting neighbours and family, and checking official records.[21] Consequently, if he tried to conceal his alleged terrorist (LTTE) background, that information is likely to be discovered either by admission or official investigation, while he is in post arrival detention.
[20] Ibid [5.20].
[21] Ibid [5.20].

The applicant fears he would present to the authorities as a passenger on the ‘[Boat 1]’ and therefore as a person classified by the state security apparatus as a Tamil separatist, and supporter of the LTTE, an organisation classified by several countries, including Australia, as a terrorist organisation: DFAT report [3.39]. He also fears the abduction of his brother [Brother A], for the reason he and [Brother A] were believed to be supplying contraband to the LTTE, and he was wanted by the authorities for that reason, would be discovered by the interviewing authorities.
According to the DFAT report the LTTE was comprehensively defeated in 2009; and DFAT assesses that the LTTE no longer exists as an organised force inside Sri Lanka, and any former LTTE members within Sri Lanka would have only minimal capacity to exert influence over Sri Lankans.[22] Nevertheless, Sri Lankan authorities remain concerned about its potential re-emergence, and individuals and groups with separatist tendencies.[23] DFAT reports that Sri Lankan authorities are reputed to collect and maintain sophisticated intelligence on former LTTE members, supporters and other separatists, including ‘stop’ and ‘watch’ databases.[24] The DFAT report also states that the Sri Lankan Government may not accept that the LTTE is finished, arresting several Tamils in 2021 under the Prevention of Terrorism Act (2001) (the PTA).[25]
[22] Ibid [3.43].
[23] Ibid [3.41].
[24] Ibid [3.41].
[25] Ibid [3.44].
Consistent with, but without reliance on the DFAT report, the UK Upper Tribunal in a decision published in May 2021, found that the present Government of Sri Lanka was possessed of a ‘determination to prevent any form of resurgent separatism’. The Tribunal is satisfied it is reasonably likely the applicant would be assessed upon arrival to be a person with a predisposition to supporting and engaging in separatist activities. Any assessment of the applicant to determine whether he was a potential risk to state security would include his religion. He is Muslim.
Muslims and Tamils are minority groups in Sri Lanka. Tamils make up about 15 per cent of the population and Muslims, about 9 per cent of the population. Most Muslims speak Tamil as their first language.[26] Ethnic Sinhalese constitute about 75 per cent of the population.[27]
[26] Ibid [3.14].
[27] Ibid [2.6].
The applicant is Tamil and Tamil is his first language. He would therefore be readily identified, upon his return, as a Tamil Muslim.
In 2019 and following on from then, security measures have been tightened across Sri Lanka in the aftermath of the Easter Sunday terrorist attacks. Anti-Muslim sentiment in Sri Lanka increased following the 2019 Easter Sunday terrorist attacks that were carried out by Muslim extremists.
According to the DFAT report, Muslims came under increased government scrutiny after the 2019 terrorist attacks. According to the report, based on local sources, up to 2,000 Muslims were questioned and, in many cases, detained for ‘extremism based on limited evidence. Muslims were the subject of targeted negative attention from the state security apparatus, such as stop and search activities’.[28]
[28] Ibid [3.27] – [3.31].

100. The Government has indicated it will work to ‘de-radicalise’ Muslims suspected of extremist views, including, potentially through a rehabilitation process modelled on Tamil rehabilitation. It is unclear what this process would entail.[29]
[29] Ibid [3.29].
101. Tamil rehabilitation centres were established towards the end of the war to segregate and rehabilitate Tamils associated with the LTTE and separatism.[30]
[30] Ibid [3.40] – [3.46].
102. After the Easter Sunday terrorist attacks Muslims have been subjected to reprisals from non-state actors, including physical assault and property damage. According to an NGO report examining online hate speech, between March and June 2020, 58 per cent of all hate speech attacked Muslims or Islam on a variety of grounds, while the Sinhala-language posts surveyed, 79 per cent attacked Muslims or Islam. In late 2021 similar data shows the percentage of hate speech targeting Muslims or Islam declined, though Muslims remain the most targeted religious or ethnic group.[31]
[31] Ibid [3.30].
103. According to DFAT’s local sources, after the attacks Muslims shop owners, stallholders, mobile vendors and daily labourers in the Eastern Province were obstructed from carrying out their daily business. Leaflets were distributed promoting boycotts of Muslim businesses; some Muslims were denied access to shops and public transport.[32]
[32] Ibid [3.29].
104. The DFAT report states that ‘High-profile’ former LTTE individuals who held senior positions in the LTTE’s military wing, leadership group and civilian administration face the highest risk of monitoring, arrest, detention, or prosecution, regardless of whether they performed a combat or civilian role during the war.[33] Additionally, the DFAT report states persons considered to be ‘high profile’ include individuals suspected of […] providing weapons or explosives to the LTTE.[34] According to the applicant his brother [Brother A] was ‘disappeared’ by the CID because the contraband he was suspected of supplying to the LTTE included [specified products]. The applicant said he was suspected of doing what he believes cost his brother [Brother A] his life, and for that reason he left Sri Lanka.
[33] Ibid [3.47].
[34] Ibid [3.47].
105. Relevantly, the applicant admitted to engaging in business-related activities that may explain his brother’s arrest and disappearance, and the reason he was suspected of supporting the LTTE. The applicant admitted to telling local police (not the CID), when he was searching for news of his brother, that their business included supplying goods into the Tamil dominated northern Provinces. Some of the goods were received into their storehouse in sealed boxes, with instructions from the suppliers to deliver them to individuals in the Tamil north, and that they were unaware of the contents of the boxes. The authorities alleged the applicant and his brother were a part of the LTTE’s supply lines through which they were supplied with weapons and other contraband such as [specified products]. The applicant denies the allegation. He says he did not know what was in the suspect boxes.
106. The DFAT report references ‘low profile’ former LTTE members.[35] This category of persons includes former combatants, those employed in administrative or other roles, and those who may have provided a high level of non-military support to the LTTE during the war. DFAT assesses that any low-profile former LTTE members who came to the attention of the Sri Lankan authorities now, particularly if suspected of having a combat function during the war, would likely be detained, and may be sent for rehabilitation.[36] Individuals sent for rehabilitation, following their release might be monitored but would not generally be prosecuted.[37]
[35] Ibid [3.49].
[36] Ibid [3.49].
[37] Ibid [3.49]
107. There seems to be some overlap between both DFAT categories of persons who are targeted by the authorities. In the context of the current concern of Sri Lankan state security to anticipate and prevent any resurgence of Tamil separatist sentiment, and to supress Muslim extremism − a religion likely to be closely identified with Tamils[38] and the widespread anti-Muslim sentiment in the general population (which would doubtlessly include members of the state security apparatus), the evidence and cited country information, considered together, raise significant concerns for how the applicant would be treated immediately upon arrival in Sri Lanka.
[38] These Reasons for Decision [95].
108. The evidence and cited country information indicate that upon arrival, the applicant would be immediately detained by state security officials. He would be thoroughly investigated. There is a reasonable likelihood the applicant would be treated with a high degree of suspicion for a combination of reasons, namely:
·he is Tamil;
·Muslim;
·departed the country to seek protection elsewhere;
·would be readily identified as one of the passengers aboard the ‘[Boat 1]’ who declared to the world that state security in Sri Lanka believes they are Tamil separatists and terrorists;
·during the war he operated a business with his brother that supplied goods to the LTTE controlled areas of the country (a fact admitted by the applicant, but he didn’t look inside the sealed boxes delivered by third parties for delivery to areas controlled by the LTTE);
·the CID intelligence records are reasonably likely to indicate that he and his brother were classed as separatists supplying weapons, [and specified products] to the LTTE;
·his brother [Brother A] was dealt with as a supplier of arms and contraband to the LTTE;
·he narrowly escaped the CID by leaving the country; and,
·rather than return to his financially comfortable family, he lived an itinerate life in Asia for about three years before reaching Christmas Island and claiming asylum.

109. The evidence and country information considered cumulatively, demonstrates the existence of a reasonable likelihood the applicant would be treated with suspicion, and assessed by State actors to be a potential risk to social stability, and at best, subjected to arbitrary and indefinite detention in a rehabilitation centre for former members and functionaries of the LTTE, suspected separatists, and/or suspect Muslims.
Findings
110. On balance, the evidence is sufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subjected to serious harm for a combination of reasons, namely race (Tamil), religion (Muslim) and imputed political opinion (anti-government sentiments, disaffected Tamil (disappearance of [Brother A]) with strong separatist tendencies) − these being a combination of reasons that satisfy the provisions of s 5J(1)(a) of the Act, if he is removed to Sri Lanka, now or in the foreseeable future. Accordingly, the applicant satisfies the criterion in s 36(2)(a) of the Act.
111. The Tribunal is also satisfied the foregoing s 5J(1)(a) factors are the essential and significant combination of reasons for the real chance of persecution faced by the applicant, and that the persecution would involve systematic and discriminatory conduct by state actors upon his arrival in Sri Lanka and in all relevant parts of Sri Lanka.
112. Consequently, the Tribunal is satisfied the applicant has a well-founded fear of persecution for a reason specified in s 5J(1) of the Act, namely, race, religion and imputed political opinion and that the applicant meets the definition of refugee as set out in s 5H of the Act.
113. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
DECISION
114. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).
Peter Haag
Member

[2023] AATA 4104

21 September 2023

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