2305126 (Refugee)

[2024] AATA 4072

2305126 (Refugee) [2024] AATA 4072 (11 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Shamili Kugathas

CASE NUMBER:  2305126

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Louise Nicholls

DATE:11 September 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 11 September 2024 at 12:25pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Court remittal – ethnicity and imputed political opinion – Tamil suspected as member of LTTE – pressured to join and extorted – threatened after giving evidence against members of Karuna group – illegal departure, unauthorised maritime arrival and returned failed asylum seeker – perceived as wealthy after working in another country and Australia – inconsistent evidence – passage of time and multiple questionings – no actual harm – political social media activities and tattoo in Australia conducted solely to strengthen claim – country information – Karuna group members protected by authorities at the time and now part of political process – LTTE no longer active – procedures for returnees – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1)(a), 19A(1), 19D(4), 36(2)(a), (aa), (2A), 65, 91R(1)(a)
Migration Regulations 1994 (Cth), Schedule 2

CASES
MZXRE v MIAC (2009) 176 FCR 552
SZEPZ v MIMA (2006) 159 FCR 291

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant claims to be a citizen of Sri Lanka and is [Age] years old. He was born in the Batticaloa District, Sri Lanka. He arrived on Christmas Island by boat as an unauthorised maritime arrival [in] 2012. The applicant attended an entry interview on 18 August 2012.

2. The applicant applied for a protection visa on 19 November 2012.

3. The applicant attended an interview at the Department of Immigration and Citizenship on 9 May 2013. The Tribunal has reviewed a recording of the interview.

4. On 16 August 2013 a delegate of the Minister for Immigration and Citizenship refused to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicant met the requirements for that visa.

5. The applicant sought review at the Refugee Review Tribunal (RRT) on 3 September 2013. The Tribunal differently constituted[1], (Tribunal 1) affirmed the decision under review on 27 June 2016. On 18 July 2016 the applicant applied for judicial review of the decision and the Federal Circuit Court, as it was then, dismissed the application for judicial review [in] 2020. [In] 2023 the Federal Court of Australia allowed the applicant’s appeal and ordered that the Tribunal’s decision be set aside, and the matter remitted to the Tribunal to be determined according to law.

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

6. The Court found that Tribunal 1, had not considered whether court documents provided to support the applicant’s claims were genuine, had not given any genuine consideration to the documents and failed to consider the extent to which they corroborated significant aspects of the applicant’s claims. The Court drew an inference that the Tribunal gave the documents no weight on the basis they were inconsistent with a conclusion it had already reached.

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

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

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

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

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

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

10. In conducting the review, the Tribunal has considered the material provided to the Tribunal and the oral evidence given at the previous hearings held by Tribunal 1. The Tribunal has reviewed the transcript of Tribunal 1’s previous hearings held on 28 July 2014 and 6 June 2016. It appears that the matter was initially constituted to a Tribunal Member who conducted a hearing on 28 July 2014 and then became unavailable to finalise the review. The matter was then constituted to another Tribunal Member who determined the review and affirmed the delegate’s decision.

11. The applicant appeared before the Tribunal on 18 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.

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

13. After the Tribunal explained the purpose of the hearing and the reasons for remittal the applicant gave evidence about his background, his migration history and his claims for protection.

14. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Material before the Tribunal

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

    Departmental file [number]

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

    ·Copy of applicant’s marriage certificate and photograph with wife and child.

    ·Copy of applicant’s Sri Lankan driver’s licence.

    ·Copy of applicant’s [Country 1] Driver’s licence.

    ·Copy of the biodata page of the applicant’s Sri Lankan passport.

    ·Copy of the applicant’s Sri Lankan birth certificate.

    ·Copies of several untranslated documents and English translations.

    ·Submissions made by the applicant’s representative dated 5 June 2013.

    Tribunal file 1312976

    ·Submissions made by the applicant’s representative dated 22 July 2014.

    ·Statement made by the applicant dated 23 July 2014.

    ·Submissions made by the applicant’s representative dated 15 August 2014.

    ·Extract from Information Book Batticaloa Police Station dated [December] 2013 and English translations.

    ·Documents from the Batticaloa Magistrate’s Court and English translations.

    ·Submissions made by applicant’s representative 24 May 2016.

    Tribunal file 2305126

    ·Statement made by the applicant on 9 April 2024.

    ·Submissions made by the applicant’s representative on 11 April 2024.

    ·Outline of submissions dated 30 January 2023 and made to the Federal Court of Australia.

    ·Several [Social media 1] posts in the name of [Mr A] from 2019 to 2023.

    ·Photo of the applicant pictured with an LTTE emblem on his [body part]. 

    CONSIDERATION

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

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

    Country of reference

18. The applicant claims he was born in, and is a citizen of, Sri Lanka. He provided a copy of his Sri Lankan passport as well as several other identity documents. He has consistently claimed that he is of Sri Lankan nationality, he spoke Tamil fluently and appeared to be familiar with the geography and culture of the Batticaloa area of Sri Lanka.

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

    Background

20. In the statutory declaration made in 2012 the applicant stated he was born in [Year] in the village of [Village] [5] in the Batticaloa District of Sri Lanka. He is of Tamil ethnicity and a Hindu. His parents, [sisters], one of his brothers, wife and son live in the village in Sri Lanka. The applicant’s father was a Hindu priest and his mother worked in the home. They also had a farm.

    [5] [Village – full name]

21. At the Tribunal hearing in 2024 the applicant stated that he was born in [Village], Batticaloa. His parents are living in the village and his father is a Hindu priest and his mother was not employed. He told he Tribunal he had [brothers] in Sri Lanka and one brother living in [Country 1] and [sisters] living in Sri Lanka.

22. He finished school in Year 8 because of the disruption of the civil war in Sri Lanka. He is married and he has one son who is [Age] years old and is attending school. He speaks to his wife and son regularly. His wife and son live with her parents in a different village to his family. His brother and sisters live near his parents; his sister works in the [workplace] and his brothers are rural farm workers.

    What are the applicant’s claims?

23. The applicant’s claims are set out in the statutory declaration dated 15 November 2012 accompanying the application for protection. The applicant discussed his claims for protection with the delegate at an interview on 9 May 2013.

24. The claims for protection were expanded on in further statements made on 23 July 2014 and 11 April 2024.

25. The applicant gave oral evidence concerning his claims at Tribunal hearings held in July 2014, in June 2016 and most recently on 18 April 2024.

26. The applicant has had several different representatives throughout the application and review process. His representatives have respectively made submissions on matters of fact and law as well discussing various items of country information. His current representative stated that the applicant maintained his previous claims, but he also made new claims based on his conduct in Australia.

27. Initially the applicant claimed if he returned to Sri Lanka, he would face serious harm from one of the many government, political or military groups operating in the area because he is a Tamil and would also have been suspected of being a member of the LTTE. He particularly feared members of the Karuna group (TMVP) because he had given evidence in court against members of the group who had taken his motorbike and used it in a robbery in 2010. He also claimed he feared being targeted because of perceptions that he was rich because he had worked in [Region] and Australia. He also left Sri Lanka illegally and feared being harmed by government authorities on return to Sri Lanka as an illegal departee and a failed asylum seeker.

28. In 2024 the applicant stated that he now also feared harm because of his activities in Australia. He now claims that he understands the significance of the LTTE and the sacrifices they made to fight for an independent Tamil state in Sri Lanka. He claims that since 2019 he has posted pro LTTE propaganda on his [Social media 1] account and [Social media 2] account where he has also posted videos of him singing LTTE songs. He claims his admiration for the LTTE caused him to get a tattoo of the logo of the LTTE on his [body part]. He claims the Sri Lankan government has a sophisticated intelligence agency and he will be identified as an LTTE sympathiser on his return to Sri Lanka.

    Background history of the conflict in Sri Lanka.

29. For the purpose of context, the Tribunal notes the following relevant country information on the armed conflict in Sri Lanka and the “Karuna” paramilitary group.

30. Sri Lanka (formerly Ceylon) achieved independence from the United Kingdom in 1948. Tamils the largest ethnic minority, received preferential treatment during British rule. Following independence, successive governments promulgated measures promoting the primacy of the majority Sinhalese community. Sinhalese nationalism – including episodes of anti-Tamil riots – and a sense of second-class status gave rise to a Tamil separatist movement, which sought to carve out an independent state (‘Tamil Eelam’) in the Tamil-majority north-east of Sri Lanka.[6]

    [6] DFAT Country Information Report Sri Lanka – MAY 2024

31. The armed conflict between the state and the secessionist Liberation Tigers of Tamil Eelam (LTTE) and other militant ethnic Tamil groups, which lasted from 1983 to 2009, resulted in numerous violations of the laws of war and human rights abuses.

32. Successive Sri Lanka governments carried out numerous and widespread violations of human rights, notably arbitrary arrests and detention, and extrajudicial killings. Other commonly reported abuses included rape and other sexual violence, enforced disappearance, torture and other ill-treatment. The last months of the fighting saw a sharp increase in indiscriminate attacks on civilians and massacres of persons in custody.

33. The LTTE carried out frequent suicide bombings and other indiscriminate killings of civilians, torture, use of child soldiers, forced evictions of ethnic populations, massacres, targeted killings, summary executions, and the use of human shields. Both sides laid inherently indiscriminate anti-personnel landmines.

34. The war ended on May 19, 2009, with the decisive defeat of the LTTE and the death of its leader, Vellupillai Prabhakaran. During the war, the LTTE sought to secure territory and establish a separate state, Eelam. At the height of the war, the LTTE claimed administrative control over at least half of the territory in the northern province, including the entirety of Kilinochchi and Mullaitivu districts, portions of other districts, and swaths of land in the eastern province.[7]

    [7] “Why can’t we go home?” Miliary occupation of land in Sri Lanka 9 October 2018 International Crisis Group, “Sri Lanka: The Failure of the Peace Process,” Crisis Group Asia Report N°124, November 28, 2006, (accessed February 26, 2018).

35. With respect to the Karuna Group, DFAT reports in 2024[8]

    [8] DFAT Country Information Report Sri Lanka – MAY 2024

    2.82 The Thamil Makkal Viduthalai Pulikal (TMVP, ‘Liberation Tigers of the Tamil People’ in English, also known as the Karuna Group) and the Eelam People’s Democratic Party (EPDP) are former Tamil paramilitary groups which sided with the government during the civil war and fought alongside state forces against the LTTE. The OISL found the TMVP and EPDP committed unlawful killings and enforced disappearances of suspected LTTE members, attacked and kidnapped civilians, and recruited children during the war, reportedly in collusion with the state. The TMVP has also been accused of extorting Tamil businessmen. The TMVP and EPDP remain active, although they have disarmed and are now engaged in politics. Both are represented in the current parliament and, in the case of the EPDP, the Wickremesinghe Ministry.

    2.83 The TMVP operates in the east, mostly in Batticaloa. According to in-country sources, the TMVP had no formal presence in the north. The TMVP registered as a political party in 2007, winning a majority in Provincial Council elections in the Eastern Province in 2008 and some seats in local elections in 2018. Its founder, Vinayagamoorthy Muralitharan (otherwise known as Karuna Amman), was the LTTE’s senior commander in the Eastern Province before defecting to the government in March 2004 (reportedly taking 4,000 fighters with him). He was an MP from 2008 to 2015, and served as Deputy Minister of National Integration during the presidency of Mahinda Rajapaksa. The TMVP holds one seat in the current parliament, occupied by the party’s leader, Sivanesathurai Chandrakanthan (also known as Pillayan). Chandrakanthan, previously Chief Minister of the Eastern Province (2008 to 2012), was appointed State Minister of Rural Road Development in April 2022.

    ….

    2.85 In-country Tamil sources told DFAT the TMVP and EPDP no longer posed a threat to former members of the LTTE and/or those Tamils who opposed them, including Tamils who had returned from seeking asylum abroad. Neither group maintains an armed wing: they have long ceased their paramilitary activities, and are very much part of the democratic political process. DFAT is not aware of recent reports of violence attributed to the TMVP or EPDP.

    2.86 DFAT assesses that the TMVP and EPDP represent a low security risk in the north-east, and that Tamils face a low risk of harassment and violence from the TMVP and EPDP.

36. Country information on the situation in Batticaloa in 2010 and 2011 indicates that the Karuna group did have a role in security in those years[9] but later information as set out above indicates that its role has significantly changed and it has ceased its paramilitary activities.

    [9] 'The Tamil Makkal Viduthalai Pulikal (TMVP) and Karuna factions; their relationship with each other; reports concerning their treatment of Sinhalese and Tamil citizens; whether they are still active as paramilitary groups', Canada: Immigration and Refugee Board of Canada (IRB), 17 February 2012

    Evidence and findings 

37. The applicant has consistently stated and given evidence in his written and oral evidence that he is a Tamil male who was born in the Batticaloa area, and the Tribunal accepts this evidence. Batticaloa District is located in the east of Sri Lanka in the Eastern Province of Sri Lanka. It has a predominantly Tamil population [10].

    [10] "Area of Sri Lanka by province and district" (PDF). Statistical Abstract 2011. Department of Census & Statistics, Sri Lanka.

38. The Tribunal accepts the applicant is married and has one [Age] year son and that his wife and son are living in [Town] in the Batticaloa District of Sri Lanka.

    The applicant’s experiences during the civil war

39. The applicant has provided evidence in his previous written statements and his statutory declaration and at his Tribunal hearings regarding his experiences during the civil war in Sri Lanka.

40. In his statutory declaration made in 2012 he claimed that in 1993 at the age of [Age] he and his family were forced to relocate due to bombings in their village. They sought shelter in schools, temples, and civilian centres. They would return home and flee once again if there was another attack.

41. The applicant’s education was disrupted, he only attended school until Year 8. His parents were too afraid to send him to a school in another area, so he began working on his family’s rice farm.

42. In 1999 at the age of [Age], the LTTE[11] came to his family’s home and tried to force the applicant to join them. Messengers would come to his house and his parents would hide him. The LTTE told his parents that they had to contribute money or a person to the LTTE movement. His parents had no money. Because of this, the LTTE took his mother to a camp on two occasions and held her for a week each time. The LTTE continued to send messengers to his house.

    [11] Liberation Tigers of Tamil Eelam (LTTE)

1. His parents were fearful that the applicant would be taken by force and killed if he joined the LTTE. His parents did not support the LTTE and in 2001, his parents decided to send him overseas. He obtained a work visa and went to [Country 1]. He did not return home until 2007, when it was more peaceful.

2. When he returned home, he was asked to sign in every week at the Sri Lankan Army’s Special Task Force camp. He did this for two weeks. After that, he was asked to pay a bribe of food and alcohol and after he paid the bribe he did not need to sign in anymore.

3. During his time away from home, a shell dropped on his house and his father was injured. His family lost their farm, cattle and produce and relocated to [Town]. They lived in [Town] for four years before they returned to their family home. The applicant and his brother would send money home to support them.

4. In 2006, his mother was taken and forced to undergo civilian training with the LTTE. As his father was a respected Hindu priest, he was not taken.

5. During his three-month stay in Sri Lanka in 2007, the applicant was pressured by the LTTE. The LTTE were aware that he lived overseas and asked for money. The Applicant provided money as he was afraid that the LTTE would shoot, kidnap or force him to join the LTTE. He decided to leave Sri Lanka and went back to [Country 1] in 2007. He returned to Sri Lanka in 2010 and married. He then went to [Country 2] to work for five to six months before he returned to his family home in Batticaloa.

6. In the applicant’s 2014 statement he stated he left for [Country 2] on 20 August 2011 and returned to Sri Lanka on 28 February 2012.

7. At the hearing held on 28 July 2014 the applicant confirmed that his parents, two sisters and one brother were living in the Batticaloa District and that one of his brothers was living and working in [Country 1].

8. The applicant stated that when he was [Age] years of age his mother sent him away to [Country 1] because there was a war between the army and the LTTE and his mother did not want him to be harmed in these clashes.

9. At the hearing held on 6 June 2016 the applicant stated that in 1999 when he was about [Age] years of age the LTTE came to his family home and tried to force him to join them. He stated he was not at home at the time, but his parents were home. They demanded he join the LTTE and his parents did not agree so he hid until he went to [Country 1] in 2001.

10. He stated at the hearing that the LTTE took his mother and trained her in 2004 for one month. He claimed he was told that they took her to their base in [Location] with many other people from the village and gave them training at their base and at some local schools.

11. Tribunal 1 pointed out that in his 2012 statutory declaration he had claimed that his mother had been detained for just one week. He stated that he was only estimating the time as he was not present at that time.

12. The applicant stated that none of his family had any connection with the LTTE except his mother who was taken away for training for a short period.

13. He stated that in 2007 he returned to Sri Lanka from [Country 1], and he was taken to a task force camp and they demanded money. When asked to clarify he stated the police asked him to come and register himself. They took him once to their place but then used to drive past on motorbikes and demand money, so he went back to [Country 1].

14. He did not give them money but his uncle organised a party for them where the applicant supplied alcoholic drinks. When reminded of the statement made in his 2012 statutory declaration that he had signed in every week at the Special Task Force camp he agreed and said he had forgotten to say that.

15. In 2007 when he returned from [Country 1] he stayed with his mother. He was asked by police to go to the SDA (STF) camp to get his signature and he had to go every week while he was living in [Village]. The Karuna group asked him to pay one lakh and then 50,000 rupees but he did not pay that. Tribunal 1 pointed out that this evidence was not consistent with his 2012 statutory declaration.

16. In the applicant’s 2024 statement he claimed that during his time in Sri Lanka he did not join the LTTE or support the movement but after the war finished in 2009 he grieved for the Tamil civilians killed by the Sri Lankan government.

17. He stated that when he was a child he grew up in an LTTE controlled area in Batticaloa. There was no presence of the Sri Lankan army in the area and LTTE used his maternal aunt’s house as a base and his family had many interactions with the LTTE. His mother saw he had an attraction and interest in the LTTE and when he was [Age] years old, she sent him to [Country 1] to work.

18. He did not return to Sri Lanka until 2007 and on his return was asked to register at the STF army camp at [Location]. He was required to do cleaning and they also asked for money and alcohol. He feared being targeted and perceived as wealthy after returning from [Country 1] so he went back to [Country 1] after about 2 to 3 months with his family. He returned to Sri Lanka in 2010.

19. At the 2024 hearing he stated that the area in which he lived in Batticaloa had, during the civil war, sometimes been controlled by the LTTE and sometimes by the Sri Lankan Army. The Tribunal asked him about his earlier statements in which he stated that the LTTE came to his family home to recruit him. He stated the LTTE lived in the same area and they came to his home which was next to his aunt’s vacant house. When asked to explain he stated they were small boys, and they (the LTTE) came to this place and his aunt was cooking for them. They came to his home because it was next to his aunt’s house. They were controlling that area.

20. The evidence he gave was not entirely clear, but the Tribunal considers that he was trying to explain that during the civil war the area in which he lived was often controlled by the LTTE and that his family had contact with members of the LTTE due to his aunt’s previous contact with them as well as the LTTE living in proximity to the family home.

21. The Tribunal put it to him that in his documents he claimed the LTTE tried to force him to join them, and his parents hid him. He claimed it was the Karuna Group that wanted him to join and that was towards the end of the conflict. He stated that the Karuna Group had been part of the LTTE and in charge of Batticaloa and the Eastern Province. He stated that the Karuna Group asked him to join in 1999 but his mother did not want him to join the LTTE, so she sent him to [Country 1] to live and work from about 2001. He came back to Sri Lanka in 2007 for three months and then returned to [Country 1] where he lived and worked until he came back to Sri Lanka in 2010 when the Sri Lankan Army took control of the area. He re-joined his family and married in 2010 and then went to work in [Country 2] for five to six months.  He came back to Sri Lanka to his family home. At that time, he had a small lorry and was selling vegetables.

22. The applicant confirmed that he was not involved in the LTTE when he lived in Sri Lanka. He claimed his younger brother was involved in the LTTE for one to two years. His younger brother has lived and worked in [Country 1] for about seven years. His wife lives in their home, and it is not far away from his mother’s home. No one else in the family had contact with the LTTE during the civil war.

23. The Tribunal accepts that the applicant lived in an area of Sri Lanka which was sometimes under the control of the LTTE and that all persons in that area would have necessarily had some level of contact with the LTTE during that period of control.

24. Country information indicates that the LTTE formed in 1976, launched a guerrilla war in 1983 and maintained de facto control over Tamil populated areas. A 2002 ceasefire collapsed in 2005 and government forces re-took eastern Sri Lanka in 2007 and in January 2008 launched a major offensive to capture the remaining LTTE territory in the north. The LTTE surrendered in May 2009[12].

    [12] DFAT Country Information Report Sri Lanka 2 May 2024.

25. The applicant was born in [Year] and was a young male during the early years of the guerrilla war. There are some inconsistencies in the evidence regarding his family’s involvement with the LTTE. The Tribunal has not taken an adverse view of the applicant’s credibility for this reason, however, does not consider that he has given an entirely reliable account of events which took place during the civil war. The Tribunal accepts that the applicant has been questioned many times by his different representatives, by departmental officers and by a number of Tribunal Members. The events he has been asked to recall took place over 15 years ago and some of those events were reported to him by family members or were relatively inconsequential taking account of his history and circumstances. Further the Tribunal did not observe that the applicant was particularly articulate or was able to give an accurate or clear account of his circumstances and events. He explained that his schooling in Sri Lanka had been disrupted by the civil war and appears to have been employed in mainly physical occupations. 

26. There are some consistent themes in his evidence which the Tribunal considers points to some reliable evidence. That is, the applicant has never claimed, and Tribunal accepts he was never involved with the LTTE when he lived in Sri Lanka and that his family resisted any efforts to recruit him before 2001 when he left for [Country 1]. The applicant claimed that his mother underwent training for the LTTE and despite there being some inconsistencies in his evidence regarding the length of the training period and the year in which training took place, the Tribunal accepts that his mother underwent training with the LTTE along with others from her village for a very short period of time sometime between 2001 and 2007. The Tribunal accepts that the applicant’s father was a Hindu priest and was not asked to undergo training or involvement with the LTTE. The Tribunal accepts that the applicant’s aunt may have cooked for the LTTE at some stage during the applicant’s childhood although the evidence of the timing and extent of this contact is not clear and the applicant was somewhat incoherent when discussing his aunt’s role and family contact in the 2024 hearing.

27. In the 2024 hearing he claimed that his brother was involved with the LTTE for one to two years, but he did not elaborate or give details of the claimed involvement. The Tribunal notes the applicant had not mentioned his brother’s claimed involvement in his 2012 declaration or in later documents or evidence. The Tribunal considers if his brother had been significantly involved for a period of up to two years with the LTTE he would have mentioned this at an earlier stage of the application and review process. However, it is possible his brother had contact with the LTTE while he lived in Sri Lanka due to his residence in the Batticaloa area. Country information indicates that all Tamils living in LTTE controlled areas had a connection with the LTTE of some sort through friends or relatives who were members, through interactions with the LTTE administration or through those who were forcibly recruited. DFAT reports “In-country sources reported that people in Batticaloa, which the LTTE controlled, engaged with the LTTE administration as a matter of course – they said they could not avoid the LTTE, whether they liked it or not.”[13]

    [13] DFAT Country Information Report Sri Lanka 2024 p.3.93

28. Other than for the minimal contact and involvement set out above, the Tribunal does not accept that the applicant or his family members had any significant role in the LTTE during the period of the civil war. Further the country information indicates that the LTTE was comprehensively defeated by state forces and no longer exists as an organised entity[14].

    [14] DFAT Country Information Report Sri Lanka 2024 p.3.75

29. The Tribunal does not accept the applicant’s claim that the Karuna Group wanted to recruit him either in 1999 or at the end of the conflict, that is, 2007 to 2009. His evidence on the claim that he was approached by the Karuna Group was confused. At first, he stated he was approached in 1999 and then claimed it was in the later stages of the war. However other than for the short time he was present in 2007 the applicant was not present in Sri Lanka at the end of the civil war. In any event, country information indicates that the founder of the paramilitary group known as Thamil Makkal Viduthalai Pulikal (TMVP or Karuna Group) was the LTTE’s senior commander in the eastern province before defecting to the government in 2004[15]. The Karuna Group as it was known did not commence its pro government operations until 2004.

    [15] DFAT Country Information Report Sri Lanka 2024 p.2.82

30. While he has given evidence of his interaction with members of the Karuna Group when he returned to Sri Lanka in 2010 after the end of the civil war, he has never claimed in previous evidence that he was approached to join the Karuna Group in either 1999 or even in 2007, and the Tribunal does not accept this claim.

    The applicant’s involvement in the conviction of two persons in Batticaloa in 2010/2011 following a robbery.

31. The applicant claimed he had contact with members of the Karuna Group when he returned to Sri Lanka in 2010.

32. In his 2012 statutory declaration he stated he returned from [Country 1] in February 2010 and started working on his family farm and was married in August 2010.

33. By 2010 the Karuna group were ruling Batticaloa and committing crimes in the area. On 20 August 2010 the applicant rode his motorbike to the local police station to obtain permission to move to his wife’s area. He saw two members of the Karuna group at the police station and two days later one of them called him and told him he needed his motorbike. The applicant knew if he refused there would be serious consequences so he told him he could have the motorbike in the evening. This person stated he would send another member of the group to collect it and the applicant went to the agreed meeting place where he handed over the motorbike. This person and another member of the group brought back his motorbike the next morning.

34. The police arrested him the next morning and took him to the police station where he told the police what happened with the Karuna Group members and he was asked to identify the people involved. After he identified those persons, they were arrested and he found out that the group had used his motorbike to commit a robbery. He claimed that after this he received death threats by phone but did not know the names of the callers but suspected they were from the Karuna Group. The callers demanded money from him, but he refused and he was threatened again.

35. He was called to court in September 2010 and the judge told he could not go overseas until the case was resolved. He told the judge about the threats he received and showed the numbers of the calls had been getting. The judge ordered the removal of those persons’ mobile phones. For 2 to 3 months, he had no problems but then the threatening phone calls started again. During this period, he was aware that people were being abducted by the Karuna Group. He believed he was being threatened because he had been working overseas and the Karuna Group thought he had a lot of money and they also knew he had informed the police about their criminal activities. Generally, Tamils were vulnerable to being targeted by various groups and were not protected. He stated the Karuna Group fought against the LTTE and they were anti-Tamil.

36. The applicant stated that he did not complain to anyone when the threats started again because he thought the threats would become more severe and the police were corrupt. One of the callers stated he was in gaol because of the applicant and when he got out he would deal with him.

37. In 2011 the applicant appeared in court to give evidence and the judge told him giving the motorbike was a mistake but since he had told the truth he was released without charge. The offenders had been convicted and given one-year sentences and after the court case was finished he was told he did not have to stay in the area. He went to Colombo looking for an agent to send him overseas. He claimed his life was at risk from the threats he was receiving, and he needed to escape. He went to work in [Country 2] as [an occupation] for five months and came back to Sri Lanka because his wife had given birth to their son. He claimed he did not go out anywhere and stayed at home during this time. A friend suggested that instead of working in [Region] it would be better to seek protection permanently somewhere else, so he decided to leave and seek protection in Australia.

38. In the applicant’s 2014 statement which was provided to support the application for review before Tribunal 1 the applicant stated that he had not mentioned the court matter in Sri Lanka at the entry interview because he had been told by people in the detention centre if there was an outstanding court matter, he might be sent back to Sri Lanka. Further he was not sure he could get evidence of the court case to show he was just a witness, so he did not mention this issue at the entry interview.

39. The applicant stated that in his 2012 statutory declaration he had mentioned a man named [Mr C]. This person was a distant relative on his father’s side, but he lived in a neighbouring village. It was only in 2010 when they met at the police station, he realised who he was. There was some confusion at the delegate’s interview as to the words used to describe the family relationship of this person. The applicant pointed out that the interpreter was a Tamil speaker from India and did not understand everything he was saying.

40. The applicant stated that with respect to the police investigation his name was given to police because the witnesses had told the police the registration number of the bike. The bike was registered in his brother-in-law’s name and when the police contacted his brother in law he gave the applicant’s name as the person using the bike and that is why the police came and arrested him. The police told him he would not be released until he identified the person responsible for taking the bike and as a result [Mr C] was arrested and he subsequently implicated the other two persons responsible.

41. He acknowledged that the court documents provided by the applicant record the accused persons’ names as different to what he recalls but he only knew their informal names. He claimed he went to court on several occasions and waited to give evidence but was not always called. He went to court about eight or nine times but was only asked to speak on two to three occasions. There were three witnesses; himself, his brother-in-law and a lady whose [property] had been stolen. On one occasion he informed the judge he was receiving threatening phone calls and the judge ordered the police to search for, and confiscate, the phones. On the next court date, the police showed the phones in court. After the applicant left for Australia, his wife saw a lawyer who assisted her in obtaining a transcript of the case and he provided that to the delegate. The case took about one year to conclude and after that he went to [Country 2] in August 2011 and his brother-in-law also left Sri Lanka and went to [Country 1] where he still worked at the time the applicant’s statement was made.

42. Before he left for [Country 2] in August 2011 he was approached him two or three times and asked him for money. He did not recognise any of the men who asked him for money, but he thought they were from the Karuna Group. He was threatened twice over the phone and once in person.

43. On one occasion five men came to his home in the evening and knocked on the door and his father-in-law told them the applicant was not home. He assumed they were from the Karuna Group and came to see him because he had provided evidence against two of their members. Two or three days later he received two threatening phone calls and on the second occasion they said they needed the money to have those persons released and that is why he thought they were from the Karuna Group. These calls took place when the persons were still in jail and before he went to [Country 2].

1. When he returned to Sri Lanka in February 2012 he stayed at his mother’s house with his wife. People in his village knew he was there but the people in the Karuna Group did not know where he was because he just stayed in the village.

2. In 2014 he believed that people in the Karuna group were still looking for him. In October 2013 they went to his house looking for him and his wife said he was in Australia, and they left. His wife recently told him that in December 2013 three men with weapons broke into the house where his wife, his son, his wife’s parents and his wife’s two younger brothers were living at the time. They asked his wife where he was, and she said he was not there and then she was kicked by one of the men. His wife went to Batticaloa and lodged a complaint to police, and she also lodged a complaint to a human rights group.

3. At the hearing held on 28 July 2014 the applicant stated that the Karuna group had taken his motorbike in 2010 and used it in a [property] robbery. He had informed on the group and they have been causing problems since then. He claimed the bike was taken on 20 August 2010, he was arrested on 24 August 2010 and his marriage was solemnised on 25 August 2010.

4. He claimed a distant relative telephoned and asked him for his bike in August 2010. He was told two people would come to take his bike. He gave them the bike and three days later they returned it to him. He claimed that his relative told him that he needed it for official business, but he gave them the bike because he feared them because they belonged to the Karuna faction. He was aware his relative was a member of the Karuna faction because he had seen him at the police station after he returned from overseas. He claimed that he saw his relative at the police station when he went to register his new address in [Location]. His relative asked for his phone number which he provided. He claimed that he knew they were from the Karuna faction because they were at the police station, and they had guns.

5. He stated that the people who had been robbed had complained to police and gave them his motorcycle registration number. The police took him to the police station and asked him about his use of the bike. He told them he had not used the bike, told them about the sequence of events and how the bike was lent to someone else. After that the police told him the bike was used for a robbery and he told them he was not involved in that. They told him that he needed to identify these people and would not be released until he showed them. After that he went to the cell in the gaol and someone was arrested. After that the applicant showed the police the houses of the other two persons and only after all three of them were arrested was he allowed to leave the police station. The next day he had to give a statement but it happened to be the day of his wedding so he left the wedding in the afternoon, went to the police station to make the statement and returned to the wedding after an hour.

6. The applicant reiterated the 2014 statement in which he explained he made that he had not mentioned the motorcycle incident in his entry interview because he was told if he talked about court cases he might be sent back to Sri Lanka.

7. The applicant stated that the court case continued from September 2010 until 2011 and the matter was concluded when the three persons charged were convicted for two years. He stated that they had been detained from September 2010 and were expected to be released in two years, although it is not clear whether this was two years from the original detention or from conviction.

8. He mentioned that persons had gone to his wife’s home in 2013 and he thought they had been sent by the Karuna Group. He agreed that his wife did not know these persons.

9. After the applicant married, he and his wife were living in [Location]. At this time he was doing farm work on his father’s farm. He and his wife were living in a rented property until he left for [Country 2] in August 2011.

10. He claimed that at this time he was being threatened over the telephone and as a result he decided to go overseas. He claimed that once they spoke directly to him while they were still in prison, he complained and the judge asked police to confiscate their phones. He stated that after the phone calls stopped a friend of theirs came to ask him for three lakhs in order to get the three persons released at the time the case was being pursued in the courts. He did not tell the police about this demand.

11. One Muslim police officer from [Location] police station had helped him by organising the confiscation of the phones whilst the accused persons were in prison. This police officer told him not to give them any money. The case came to an end, and he moved overseas.

12. He stated that during the time he was working in [Country 1] he helped his family financially from the savings he made. He stated that he decided to go to Australia when a friend told him he would be better off and safe in Australia. He returned to Sri Lanka in order to arrange his trip to Australia. When he returned from [Country 2], he stayed at his mother’s home and claimed he was in hiding because he did not want people to know that he had returned. He claimed that his mother’s home was in a small village and that if the Karuna Group had come for him, people in the village would not have divulged his details.

13. The applicant’s wife gave evidence by telephone regarding the motorbike incident, threats made against the applicant and the claim that men had broken into the house and assaulted her in 2013.

14. At the hearing held on 6 June 2016 the applicant told Tribunal 1 that he returned to Sri Lanka from [Country 1] in 2010 and he got married and was living at his wife’s place. At that time anyone who was new to an area had to register their new home with the police. He went to the police to report and register himself and saw two people from the Karuna group at the police station. One of them was a distant relative from his father’s side.

100.   Tribunal 1 questioned him about the specific nature of the family relationship, and he stated they were cousins by marriage. The applicant stated he knew this relative when he was a small child and then saw him at the police station. He knew that this relative had been a member of the LTTE and then when Karuna separated from the LTTE he joined the Karuna Group. He claimed that members of the Karuna Group were working with the Sri Lankan Army and were armed.

101.   He stated that this relative saw him when he attended the police station to register after he got married. His relative saw him and got his telephone number and called him a few days later. He told the applicant he wanted his motorbike and that he would send a person called [Mr B] to pick it up. [Mr B] was also a member of the Karuna Group. He told the applicant he wanted the bike to go with a police officer somewhere. He gave him the bike because he was scared and thought he would be in trouble if he did not give him the bike.

102.   He explained that his motorbike was in his brother in law’s name but it was owned by the applicant. He bought it in 2007 but because he was leaving for [Country 1] he gave it to his brother in law. When he came back in 2010 he was using the bike.

103.   When he was asked for the use of the bike he did not want them coming to his home so he told them he would meet [Mr B] and they could pick up the bike. He met [Mr B] at [Junction] in the evening and handed over the bike and then walked home. He claimed they returned the bike at 6.30am the next morning in the same place they had picked it up.

104.   About two days after he picked up the bike the police came and arrested him and took him to the police station. Tribunal 1 questioned the applicant about the specific dates and time of events however the applicant could not recall exactly when he was arrested. It was also put to him that in his statement he claimed he had been arrested the following morning and this was different to the evidence he had just given that it was two days later. He stated that he gave the statement two years after the incident but it was now many years after the incident.

105.   When he was first arrested he did not know the reason for the arrest and it was only later that he was told that his motorbike was used in a [property] robbery. He stated that the police initially went to his brother in law’s home because the bike was registered in his name and his brother-in-law told them that the applicant had the use of the motorbike. The police questioned him and he told them he had lent his bike to [Mr C]. The police then took the applicant to [Mr C]’s house and identified him. He was then arrested. [Mr C] implicated [Mr B] and took police to his house where he identified him. The applicant was released in the evening after all three accused persons were identified and arrested. He went to the police station the next day to give a statement. He confirmed that he did not have a copy of the statement.

106.   They then sent him a letter with the date of the court appearance. He could not remember when he first appeared but thought he went two or three times. He was asked to recall the exact dates but explained it was some time ago and he did not remember exactly. He referred to his 2012 statutory declaration. He stated he attended court a few times when the matter was called over. Tribunal 1 asked a number of questions regarding his interaction with court processes and what happened when he attended court. He claimed he was threatened by [Mr B] by telephone before the court case was concluded. He claimed a few other persons also called him with threats during this time.

107.   Tribunal 1 raised an issue with the applicant about how his brother-in-law was described in court document. Specifically, the applicant claimed his brother-in-law was the registered owner of the motorbike but Tribunal 1 put it to him that in the translated documents he was described as the applicant’s cousin. Tribunal 1 put it to him that it could raise doubts about the truthfulness of his claims and his credibility generally. The applicant stated that it was his elder sister’s husband.

108.   Tribunal 1 then put it to the applicant that she did not know what she thought of the court documents provided by the applicant and she noted that country information indicated that document fraud took place in Sri Lanka. The applicant stated that if the Tribunal had doubts it could clarify with the High Court in Sri Lanka.

109.   Tribunal 1 went on to discuss the inconsistencies in the evidence given by the applicant at his entry interview and his later interview with the delegate. He repeated his explanation that he had not mentioned the motorbike incident and the court case because he was told not to mention his court case or he would be returned to Sri Lanka. He was also not sure he could get the evidence to confirm the details of the court case at the time of his entry interview.

110.   In the 2024 statement the applicant stated his wife and son currently live in Batticaloa. He stated his wife and son have stopped being harassed by armed men as she had told them that she no longer had contact with the applicant. She told them they were separated to avoid problems.

111.   He claimed his wife was attacked on 12 December 2013, because a fellow villager had returned to Batticaloa, from Australia, and the agents of the Sri-Lankan Government assumed that he had returned and that is why they went to his wife’s house in search of him.

112.   He stated that in Sri-Lanka there is court record, of the applicant informing on the Karuna Group. The Karuna Group still operate in conjunction with the CID, and he believes they will seek revenge on him if he returns to Sri-Lanka.

113.   At the 2024 hearing the Tribunal asked the applicant to describe what happened to him when he returned to Sri Lanka from [Country 1] in 2010. The applicant stated that when he returned the Sri Lankan Army were in control of the area. He had problems in 2010 when they borrowed his motorbike and after three days the police came and arrested him. He stated the Karuna Group borrowed his motorbike. He was going out, they asked for the motorbike and he refused. Then they came home and borrowed his motorbike and were involved in an illegal activity. When asked to give some detail he stated he does not remember exactly what happened but he remembers they took his motorbike and police came and arrested him. He stated they took the bike from his family home.

114.   The police did not say anything when they arrested him. When he got to the police station, they told him the motorbike had been used in a robbery where they grabbed [property] off a lady.

115.   They thought he had done that but he told them he had not been involved and had not taken the [property]. After that he identified the person who took the bike. He identified only one person called [Mr B]. After the police interviewed him they released him. He later got a summons and went to court. He could not remember exactly when he got the summons. He stated it could have been a month after the interview. The court was the main court in Batticaloa that handled everything.

116.   When he went to court, they lined up people and he identified the two people who took his motor bike, that is, [Mr B] and someone else. He did not know them personally, but they asked for the motorbike through a relative of the applicant. He did not know them but his relative told him about them and he came to know them. He went to court several times until the case was over.

117.   He identified their house and police went to their houses, arrested them and gaoled them. When he went to the court the lady who lost the [property] was at court. [Mr B] and his group told him not to identify them, but he told them he had to identify them.

118.   These two people were sentenced to jail but when they were taken away, they threatened him at the court.  After that he went to [Country 2] to work, he returned to Sri Lanka and then came to Australia about a month after his return to Sri Lanka in 2012.

119.   The applicant had previously provided copies of several documents and English translations which were said to be court documents relating to the conviction of the accused persons in the motorbike incident.

120.   The Tribunal has considered these documents and the written and oral evidence given by the applicant in determining the applicant’s claims.

121.   As a general comment, the Tribunal considers that the applicant’s evidence is not entirely reliable and features many inconsistencies, some inconsequential and others more significant. The Tribunal is mindful that the applicant has repeated his account of events many times over the years and the events which took place are now over 14 years old. In particular, his recall at the 2024 hearing was extremely poor when considered against earlier evidence he gave about these events. However, some core elements have remained the same through his various accounts.

122.   The applicant has consistently claimed that he was the owner of a motorcycle in Sri Lanka which was registered in the name of his brother-in-law. He explained that when he went to [Country 1] in 2007, he gave the motorcycle to his brother-in-law. When he returned to Sri Lanka in 2010, he had the use of the motorcycle even though his brother-in-law was the registered owner. The Tribunal accepts this evidence.

123.   The applicant has consistently claimed that a distant relative from his father’s side, [Mr C], asked the applicant if an associate, known as [Mr B], could borrow his motorcycle and that on or about 20 August 2010 the applicant reluctantly agreed to lend the motorcycle to [Mr B] and it was later returned to him.

124.   In his earlier accounts he claimed that the motorcycle was handed over to a person known to him as [Mr B] at an agreed location although at the 2024 hearing he stated that the motorcycle was collected from his home.

125.   He claimed that the motorcycle was returned to him shortly after he handed it over. There are various accounts of when the motorcycle was returned; in his 2012 statement he claimed the motorcycle was returned the next morning, in the 2014 hearing he claimed it was returned about three days later and in the 2016 hearing he claimed it was returned the next morning at 6.30am. In the 2024 hearing he stated he could not remember clearly what happened.

126.   The Tribunal accepts that in August 2010 the applicant’s relative arranged for the motorcycle to be borrowed by a person known as [Mr B] and that the applicant handed over the motorcycle to [Mr B] and it was returned to him between one to three days later.

127.   The applicant has consistently claimed that police came to his home sometime after his motorcycle was returned and took him to the police station. Again, there are slightly different accounts of when this took place, but the Tribunal accepts that the applicant was taken to the police station and interviewed some short time after his motorcycle was returned to him. The Tribunal accepts his evidence that he told the police that he had lent his motorcycle to other individuals and that he was not involved in a robbery of [property] from a woman where his motorcycle was used to commit the offence. It appears that the police accepted that he had not been involved.

128.   The applicant claimed that he physically identified the individuals who borrowed his motorcycle. However, it is not clear how he identified the individuals. He claimed the person who had asked him to lend his motorcycle was a distant relative and he knew him and where he lived. It is plausible that he may have shown the police his relative’s home and identified him. However, the applicant stated that he had not met [Mr B] until his relative gave him instructions where and how to meet him on or about 20 August 2010. He met [Mr B] to hand over his motorcycle in an agreed location away from his home. In these circumstances the Tribunal does not accept that the applicant took the police to [Mr B]’s home where he identified him as the person who took his motorcycle. In his evidence at the 2016 hearing, he applicant stated that his relative identified [Mr B] and a third person involved in the incident and the Tribunal considers this is how the other parties were identified by police.

129.   The Tribunal accepts that following the arrests that the applicant was summonsed several times to appear as a witness in criminal court proceedings in Batticaloa. It accepts he attended court on several occasions but on those occasions was not called to give evidence. He stated that when he finally gave evidence, he identified the individuals who borrowed his motorcycle at court and the Tribunal accepts this evidence.

130.   The copies of court documents provided by the applicant are poorly translated and require some inferences to be drawn as to the subject matter. Generally, the charge sheet, criminal report and other documents are consistent with the applicant’s evidence as to the nature of the criminal conduct and the progress of the proceedings. It appears that there were two defendants named in the charges, although they do not have the names which were provided by the applicant. The Tribunal accepts that [Mr B] and [Mr D] were the names of the accused known by applicant and the names on the charge sheet were somewhat different in the English translation but it accepts this could be the result of translation anomalies. The documents indicate that the applicant’s relative, [Mr C], was not charged and not dealt with by the courts.

131.   The Tribunal accepts that the two persons who borrowed the applicant’s motorcycle were charged and convicted of criminal offences relating to the theft of [property]. It accepts that they were persons known to the applicant as [Mr B] and [Mr D].

132.   However, the Tribunal does not accept that these individuals were members of the Karuna Group. The applicant’s characterisation of the applicants as members of the Karuna Group was based on his claim that they were associated with his relative, [Mr C]. He stated that he knew that [Mr C] was a member of the Karuna Group because he had been at the police station and had a firearm. He also stated that he knew [Mr C] was a member through reputation. The applicant was not otherwise able to satisfactorily explain how he identified [Mr B] and [Mr D] as members of the Karuna Group.

190.   The applicant stated, and the Tribunal accepts, that he departed Sri Lanka without leaving through an approved port and that he did not use a Sri Lankan passport. Taking into consideration current country information on illegal departure, the Tribunal does not accept that the applicant would face a real chance of serious harm for reasons of departing Sri Lanka illegally in 2012. It accepts he may be questioned at the airport on return and may be charged with an offence under the Immigrants and Emigrants Act. However, current country information indicates that he would not face serious harm as a result of questioning or being taken before the Negombo’s Magistrate Court.

191.   The latest DFAT report[29] reports on the situation for illegal departees on their return to Sri Lanka. DFAT reports that failed asylum seekers who depart Sri Lanka irregularly by boat are generally considered to have committed an offence under the Immigrants and Emigrants Act. Under the Act, Sri Lankan citizens must only leave Sri Lanka from approved ports of departure using a valid Sri Lankan passport. Returnees who departed Sri Lanka illegally will be referred to the CID at the airport on their return and charged accordingly. Once charged, returnees are taken to Negombo Magistrate’s Court where they are typically bailed and released. The process, including questioning at the airport, court appearance, bail and release, typically takes between 12 and 24 hours from the point of arrival at the airport. According to DFAT, although it is theoretically possible for those convicted of illegal departure to face a custodial sentence, in practice, according to local sources, a fine is imposed, typically LKR50,000 (approximately AUD230).Those who are unable to pay the fine may pay in instalments, but if still unable, may be imprisoned for 14 days.

[29] DFAT Country Information Report Sri Lanka 2 May 2024.

192.   DFAT is not aware of any returnees from Australia being charged under the Prevention of Terrorism Act. (PTA).

193.   According to DFAT, some returnees to Batticaloa in 2022 and 2023 who departed illegally and returned voluntarily with the assistance of the International Organisation for Migration (IOM), reported that they did not have criminal cases brought against them for departing illegally, and they were not questioned by police or intelligence services at the airport.

194.   DFAT said it was not aware of recent returnees from Australia being identified as being of interest because of an association with the LTTE, or for activities undertaken or views expressed while abroad. DFAT is also not aware of any returnees experiencing mistreatment during the interview process on arrival at the airport in Colombo, or during subsequent court hearings. DFAT notes that in-country sources indicate that there were no recent reports of recent failed asylum seekers from Jaffna and Batticaloa experiencing official harassment or threats to their security.

195.   For all the reasons set out above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in section 5J(1)(a) of the Act.

Does the applicant meet the complementary protection criterion?

196.   Having found that the applicant does not meet the refugee criterion, the Tribunal has considered whether on the evidence before it, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka.

197.   The Tribunal has taken into account its findings on material questions of fact, its view of the applicant’s future conduct and country information.

198.   The Tribunal accepts that the applicant gave evidence against two individuals in 2010 which assisted in their convictions but for reasons set out above does not accept that he would face a real risk of significant harm for this reason if he returned to Sri Lanka now or in the foreseeable future.

199.   The Tribunal does not accept that there is country information or other independent information which indicates that the applicant would face a real risk of significant harm for reasons of any real or imputed anti-government opinions he may hold or because he is a Tamil from the Batticaloa area. It also does not accept that he genuinely holds pro LTTE or separatist opinions or that he has a profile which would bring him to the attention of Sri Lankan authorities.

200.   The Tribunal accepts that the applicant has posted, or liked, pro LTTE material on [Social media 1] and has sung some LTTE songs on [Social media 2]. However, it does not accept he could be identified from these posts or that he holds a profile which would bring him to the attention of Sri Lankan authorities. It also does not accept that the tattoo on his [body part] would come to the attention of Sri Lankan authorities if he returned and it does not accept that this would put him at risk of significant harm.

201.   The Tribunal accepts that the applicant left Sri Lanka illegally and that on return he may be questioned, arrested and charged at the airport in Colombo and that he may face the imposition of a fine if he is found guilty. The Tribunal has considered the relevant current country information on the treatment of returnees and finds that the information does not indicate or suggest that he would face a real risk of significant harm if he were questioned, arrested and charged for reasons of illegal departure.

202.   The Tribunal considers that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life, or the death penalty.

203.   Thus, having considered the applicant’s circumstances singularly and on a cumulative basis, and for all the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that that there is a real risk the applicant will suffer significant harm.

CONCLUSION

204.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

2. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

   DECISION

207.   The Tribunal affirms the decision not to grant the applicant a Protection visa.

Louise Nicholls
Senior Member

ATTACHMENT

Relevant law

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

Refugee criterion

209.   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).

210.   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.

211.   Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

1. Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

214.   Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

215.   Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

216.   Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

217.   In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

218.   Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

1. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).

2. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

221.   There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

Mandatory considerations

222.   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.