2305716 (Refugee)

[2023] AATA 4766

2305716 (Refugee) [2023] AATA 4766 (16 November 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REPRESENTATIVE:  Ms Shelley Burchfield

CASE NUMBER:  2305716

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:  Peter Haag

DATE:  16 November 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 16 November 2023 at 11:59am

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – Federal Circuit and Family Court remittal – Tamil ethnicity – reported involvement in the murder of a state security intelligence officer – imputed political opinion – Tamil separatist – threat to state security and national unity – extra judicial execution – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 36, 65

Migration Regulations 1994 (Cth), Schedule 2

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 dependant.

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Sri Lanka applied for the visa on 30 January 2013 and the delegate refused to grant the visa on 10 February 2014.

3. On 5 August 2014 the General Administrative Division of the Administrative Appeals Tribunal remitted the matter to the delegate for reconsideration according to law (case no. 14052982).

4. On 13 October 2014 the delegate refused to grant the visa, 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).

5. On 10 November 2014 the applicant lodged an application with the Tribunal for review of the visa refusal decision.

6. On 28 April 2016 the applicant appeared before the Tribunal to give evidence and present arguments (AAT case no. 1418408). On 30 June 2017 the Tribunal affirmed the delegate’s decision to refuse to grant the visa.

7. [In] March 2023 the Federal Circuit and Family Court of Australia ordered that the decision of the Tribunal of 30 June 2017 be quashed, and the matter be remitted to the Tribunal, differently constituted, to be reconsidered according to law.

8. The applicant appeared before the Tribunal on 10 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. 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).

1. 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.

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. 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.

3. 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

1. In his protection visa application, the applicant claims to be a citizen of Sri Lanka, born on [date] in [City 1], Sri Lanka. He claims to be a Tamil of Christian faith who can speak, read and write in Tamil, Malay and English.

2. In an attachment to his visa application, the applicant provided details of his father, who is deceased and his mother, who is a citizen of Sri Lanka residing in [City 1], Sri Lanka. He also provided details of three brothers, all citizens of Sri Lanka: one is deceased, another is residing in [Country 1] and the other is residing in [City 1], Sri Lanka.

3. In an attachment to his visa application, the applicant stated that between 2004 and

   July 2012 he had resided at several addresses in [City 2] and other cities in [Country 2]. Prior to this, he resided in [City 1], Sri Lanka.

4. In an attachment to his visa application, the applicant stated that he completed up to year 5 of primary school in [City 1], Sri Lanka between 1986 and 1990, and up to year 11 of secondary school between 1991 and 1996, also in [City 1], Sri Lanka. He completed a [Occupation 1] course in 1997 in [Village 1], Sri Lanka.

5. In an attachment to his visa application, the applicant stated that between 2010 and 2012 he was employed as an [Occupation 2] in [City 2], [Country 2]. Between 2008 and 2010 he was employed as a [Occupation 3] and in 2008 he was employed as a [Occupation 4], both in [City 2], [Country 2].

Applicant’s identity

1. The applicant provided the Department with a copy of his UNHCR card, his Sri Lankan passport and an untranslated copy of his birth certificate.

2. 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

1. [In] July 2004 the applicant departed Sri Lanka and arrived in [Country 2] on [date] July 2004.

2. [In] July 2012 the applicant departed [Country 2] and arrived in [Country 3] on [date] July 2012.

3. [In] August 2012 the applicant departed [Country 3] by boat (code name [specified]) and arrived in Australia [in] August 2012.

4. On 30 January 2013 the applicant lodged an application for a protection visa and on 10 February 2014 the delegate refuse to grant the visa.

5. On 5 August 2014 the General Administrative Division of the Administrative Appeals Tribunal remitted the matter to the delegate for reconsideration according to law (case no. 14052982).

6. On 13 October 2014 the delegate refused to grant the visa.

7. On 10 November 2014 the applicant lodged an application with the Tribunal for review of the visa refusal decision and on 30 June 2017 the Tribunal affirmed the delegate’s decision to refuse to grant the visa.

8. [In] March 2023 the Federal Circuit and Family Court of Australia ordered that the decision of the Tribunal of 30 June 2017 be quashed, and the matter be remitted to the Tribunal, differently constituted, to be reconsidered according to law.

Claims for protection and other supporting documentation

1. The applicant submitted his claims for protection in the following statement attached to his protection visa application, signed and dated 24 January 2013:1

Introduction – Citizenship

1.  I am a Christian of Tamil ethnicity and a Sri Lankan citizen. I have no other citizenships and I am not entitled to citizenship nor have I a right to residence in any other country.

2.  I was born on [date] in [City 1], Sri Lanka. I have never been married. My mother and one of my brothers live in Sri Lanka. I fled Sri Lanka legally in July 2004 to seek protection in [Country 2]. I lived in [Country 2] as a refugee until 2012 when I left [Country 2] to [Country 3] and subsequently travelled on a boat for 2 days before arriving in Australia on [date]/08/2012.

1 Department file [number], Doc ID 11090885.

The country to which I fear returning

3.  I fear returning to Sri Lanka

Why I left Sri Lanka.

4.  I was living in army controlled area of [City 1] in 2003 when an officer of the Tamil army intelligence called [Mr A] was killed by the L TTE in Colombo. Crime Investigation Department officers came to [City 1] and arrested me and a friend of mine as suspects in the murder. We were transferred to Colombo CID jail.

5.  I was absolutely innocent and had no clue about who committed the murder. My mother subsequently appealed to the representatives of a peace keeping group called Sri Lankan Monitoring Mission: I was finally released from custody after 7-8 days with the assistance of the SLMM. I went back home in [City 1].

6.  In [City 1], the matter was reopened and a group called CSO called me in again for investigations about the murder. They told me that if it was war time they would treat me differently (implying that they were trying to be soft because it was peace time). I was asked questions about any involvements with L TTE and whether I was collecting information about [Mr A] for L TTE or not. I told the CSO officers that under pressure and threat of L TTE I had to divulge the residence of [Mr A] to L TTE fighters. I was subsequently released.

7.  Almost two months later police went to my house again. I was not home at that time. L TTE found out that I was investigated by CSO at the same time. A L TTE fighter approached me and asked me to go to L TTE camp to answer to their questions. I told him that I could not go through checkpoints and enter L TTE controlled area.

8.  After that incident I went to hiding. I knew that neither L TTE nor the government authorities would not let me live safely. I was feeling very threatened and decided to flee Sri Lanka to save my life. I fled my home country in 2004 and went to [Country 2] after obtaining visitor visa. I never returned to Sri Lanka again.

9.  In [Country 2] I was assessed by the UNHCR and granted refugee status in 2007.

Who I think may harm/mistreat me in my country.

10. I believe that I will be harmed by the CID in Sri Lanka.

Why I will be harmed.

11. I will be harmed by CID because of the incidents of 2004. The friend of mine who was also involved in the incidents of 2004 with me was shot dead in the same year after he was released with me. I am scared that the same happens to me if I return to Sri Lanka.

Do I think the authorities of my country can and will protect me and or my accompanying family members, where applicable, if I were to go back.

12. No, I faced all the problems of 2004 because of the Sri Lankan authorities. I fled the country and never returned. If I go back now, they would reopen the case against me. They will also accuse me of spying for foreign nations and having links with LTTE. I am sure that I will harmed at the hands of the Sri Lankan government officials if I return to that country.

Do I think that there is a place in that country where I could be safe?

13. No, there is no safe place for me in Sri Lanka. I am Tamil who has a profile with the authorities and subsequently fled the country. I believe that my problems will start again as soon as I land in Sri Lanka. It would not matter where I live, I will be prone to further investigations and harassments of the CID officers.

1. On 1 November 2013 the applicant attended an interview with the Department to assess his protection claims.2

2. On 15 November 2013 the applicant’s legal representative provided the Department with written submissions in response to the interview held on 1 November 2013.3

3. On 29 September 2014 the applicant attended a further interview with the Department to assess his protection claims.4

4. On 9 October 2014 the applicant’s legal representative provided the Department with a written submission in response to the interview held on 29 September 2014.5

5. On 26 April 2016 the applicant’s legal representative provided the Tribunal with written submissions, including country information, and the following documents in support of the applicant’s protection claims not presented before the primary decision was made:6

   ·The following statutory declaration made by the applicant, signed and dated 25 April 2016:

   1.  I make this statutory declaration in support of my application to the Administrative Appeals Tribunal in relation to the refusal of my protection visa application by the Department of immigration and Border Protection. I refer to and rely on previous information I have provided in support of my claims subject to some clarifications and additions which I will deal with in this declaration.

2.  I confirm that I was born in [Village 1] [City 1] Sri Lanka on [date] and am now [age] years old. I am single. I am Tamil and a Roman Catholic. I continue to practice my religion and attend the Catholic Church near my home in [Suburb 1] every Sunday. My religion is important to me.

3.  My father passed away in about the year of 2000 from an asthma attack. He was an [Occupation 2] and also worked as a [Occupation 4] for the Red Cross in the evening. My mother is alive and lives in [Village 1], [City 1], Sri Lanka. I am the youngest of my siblings. My eldest brother [Mr B] aged [age] was in [Country 1] when I made my protection visa application in 2013 but he has now returned to [City 1] where he works as a labourer. He is married. My third brother [Mr C] aged [age] is married and is living in [City 1]. He is also a labourer.

4.  My brother [Mr D] born in [year] was killed in 1991 when he was [age] years old. I understand that he was killed by PLOTE who thought he was assisting the L TTE. PLOTE is a group in Batticaloa who operate with the government and the army and who use weapons. They came to my aunt's house and took him away. I understand that he was staying with my aunt because of his problems but I was not aware of what his problems were at that time- I was a child aged only about [age]. I recall it was a public holiday on the day he was taken. I was at my aunt's house at the time. After he was taken I understand that my brother was kept in a house at [location] for one night and that they burnt his back with an iron. The next day he was told to kneel and was shot at a cemetery. People who saw the shooting of my brother told our family what happened. My father talked to the Red Cross and the Red Cross went with my father and got his body and took it to the hospital. I understand that we did not make a complaint about what happened to my brother as we thought it would create more problems for our family. My parents were suspicious that my brother may have provided some help to the L TTE. My brother was often away from the home and after PLOTE took him my parents

2 Ibid, Doc ID 11090871.

3 Ibid, Doc ID 11090872.
4 Ibid, Doc ID 11090873.
5 Ibid, Doc ID 11090875.
6 Tribunal file 1418408, Doc ID 2814639.

came to think this way. The killing of my brother had a big impact on me. It still upsets me very much when I talk about it.

5.  My brother [Mr C] who is three years older than me worked with TEL0 - Tamil Eelam Liberation Organisation. TEL0 is a Tamil political group who are now part of the TNA. When my brother was involved from about 1997 to 2003 or 2004 TEL0 was seen by the L TTE to be favoured by the Sri Lankan government. I believe my brother was with TEL0 in [City 1], Jaffna and Colombo. I'm not sure what his rank in the party was, but he worked with a person in TEL0 who was higher up and who stood for election as a Member of Parliament. My brother is now in [City 1] doing [Occupation 2] work. I do not believe he is involved in politics now.

6.  Until I was about [age] I lived with my parents in [Village 1]. When I started school I lived with my mother's eldest sister in [City 1] near to where I went to school. I would go home on weekends. After my brother died in 1991 I moved back to [Village 1] because I was very upset about my brother's death and wanted to be with my own family. I attended secondary schooling in [City 1] and travelled to school each day. I completed to Year 11 and started a [Occupation 1] course at Trade School in [Village 1] in about 1997 but did not complete it because I was not sufficiently interested.

7.  After I stopped Trade School I did some labouring work from time to time in the area. I was at home with my parents. For a time it was not safe to go out as there were many groups operating in the area during the conflict between the Army and the LTTE and my parents were worried for my safety. Up until his death in 2000 my father worked and my elder brother was working in [Country 1] and sending money home.

8.  Our area in [Village 1] was controlled by the army however other parts of the [City 1] area were under L TIE control. I became quite friendly with local Tamil army officers who lived close by. I thought that this would help protect us from problems with the army.

9.  In the year 2000 I went to Colombo to a football match. My cousin was also there. He suggested we go visit another distant cousin in [City 3]. We stayed overnight with him in [City 3]. We were having a beer then we took an auto to where we were staying. The police stopped us and we gave our ID. When they saw we were from [City 1] they took us to the station under suspicion. We were held overnight. The next day three CID officers came and questioned all three of us. The person we went to meet in [City 3] had registered with police there. At about 3pm in the afternoon we were taken to the Court to the Judge's chambers. Because our other cousin had already registered they released him. Me and my cousin were taken to jail. They kept us for a week and then took us back to Court. Police said they needed to investigate further so kept us another week. After this we were released. I believe the police were probably suspicious that as young Tamils from [City 1] we were part of LTTE

10. I have already given a lot of information about being approached by the LTTE in 2003. I have explained that I did what they asked me to because I was afraid for my safety if I did not. I was threatened. At the time this happened just my mother and I were at home in [Village 1] - my father had passed away and my two brothers were outside of [City 1]. I am attaching a statement that I made to the Administrative Appeals Tribunal in June 2014 about this matter.

11. I am also attaching a news article from the Sri Lankan national newspaper [named] dated [in] 2003 about me and my friend being detained in Sri Lanka in 2003 under suspicion. The article names us. It was on the front page.

12. Where the AAT statement says I was cleared of wrongdoing and released unconditionally I wish to ciarify that I was told upon my release that I must report to CID whenever requested, however it is correct that I was not charged with any offence, nor was I released on condition that I return to Court. I signed a document when I was released but it was not explained to me. I was again questioned in [City 1] by CSO and was also released and told that I must let them know if I was contacted again by the

L TIE. My family contacted a human rights group and an MP. Even though there was no further legal process against me, I was very scared that something would happen to me.

13. I was scared that I would continue to be targeted by CID because I had come under suspicion already. I worried that they might try to blame other things on me and continue to bother me. I was also worried that people connected with the officer who was killed, may try to harm me because of my arrest under suspicion and the news report. I was severely tortured by the CID when I was detained and interrogated and was scared that this would happen again outside of the legal process. I thought the CID would be watching me and worried that I could be made to disappear. This happened a lot to Tamils.

14. I have explained that several months after returning to [City 1] I was approached and told to go an LTTE office in their control area. I did not go and then went into hiding. I was very afraid about this. The police also came to the family home again but I was not there. Years later my mother was questioned by police and although she was told I could return she was certain that I would not be safe.

15. I had my passport extended in March 2004 through an Agent. This meant that I did not have to present personally to get the passport but I had to pay him a lot of money. I tried to go to Iraq for work in a group. We had to pay insurance and because of the war there were delays. I eventually obtained a [Country 2] visa in 2004 and left Sri Lanka on my passport in July 2004. It was peace time when I departed. I was very relieved once I got out.

16. I went to [Country 2] and registered with UNHCR and told them this story. They accepted that I was a refugee and that I could not return to Sri Lanka. I gave the news article about my detention in support of my case. They investigated and asked me questions about it and granted me refugee status. I was waiting for resettlement. As I have explained, I became afraid [Country 2] would send me back to Sri Lanka where I continued to fear for my safety, so I arranged to come to Australia by boat in 2012.

17. I would like to respond to matters raised by the Delegate in the decision to refuse my protection visa application.

18. I believe some confusion has been caused in the way certain matters have been communicated by me and documented in relation to what I think may be the case versus what I actually know. It is true that I do not know who shot [Mr A]. It is also true that I do not know who shot my friend [Mr E]. I believe [Mr E] was shot by the CID or army. My mother informed me he had been shot when I was in [Country 2]. She told me he was in any army controlled area when he was shot. Because he was detained with me and had problems with the CID I think he was shot by CID. I did not know everything about [Mr E]'s life-he was a friend but not a close friend. The Bishop in his letter which I will discuss further below, states that [Mr E] was shot by unidentified gunmen - suspected to be from LTTE. I believe the Bishop has said [Mr E] was suspected to be shot by L TTE because this is what the newspapers and official reports say when these things happen rather than naming the CID or army.

19. In relation to my arrest, the Delegate refers to me saying that the arresting officers put information to me about myself that did not match with my circumstances but that other CID officers later told me that others under suspicion had mentioned my name. I can only say that this is what happened. I cannot explain it nor can I know whether these other people really did mention my name. My interrogation in Colombo happened under a situation of torture. We were also tortured on the way to Colombo when they beat us outside of the van and then told us to run. We didn't run as we were sure they were going to shoot us.

20. The Delegate has also raised issues about the Bishop's letters which I would also like to explain. The Bishop wrote letters to assist my situation in [Country 2] at my mother's request. The UNHCR had information about my fear of the government but not about my

fear of the L TTE. I really do not know why the Bishop wrote in his letter that I had joined the Karuna group and had problems with the LTTE for this reason. It is not the case. The split with Karuna started in March 2004 -my problems with the LTTE began a long time before this. I believe the Bishop either misunderstood what my mother told him about my problems or that he had other reasons to believe my problems were related to the Karuna split which was such a big issue in the area at the time. The Bishop did not know me personally and other than receiving information from my mother I am not aware of what inquiries he made about me. I would also like to point out that it has been explained that the Bishop in his second letter states that he 'suspected' people like me are being abducted in white vans by an unidentified armed group and are missing. I am certain by this he is referring to the CID or the army backed militias which does confirm my risk from the CID and the army. Because of the error in the Bishop's letters in relation to Karuna, I do not continue to rely on them now, however make this explanation in supp01t of my ongoign claims. I realise that I should not have presented this letter in support of my case because it contains this mistake. Because of my poor English I was not aware that the letter said precisely this until the Department of lmmigration delegate told me. I have been told that my lawyer made a submission after my last Department interview however I do not recall the lawyer consulting me, and the information in that submission about the Bishop's letter and the Karuna group, as it has been explained to me by my current Agent, is not correct.

21. The Department Officer who most recently decided my case said that I would not be at risk in Sri Lanka if returned now because I was released after being interrogated and because I was able to leave Sri Lanka on my own passport in 2004. I continue to fear for my safety if I am returned to Sri Lanka. The fact that I was able to leave the country in 2004 on my passport does not mean I am not at risk if returned now and the fact that no legal process followed my release by CID and CSO does not mean that I am not at risk from CID and others outside of the legal process.

22. I have explained that an Agent assisted me to extend my Sri Lankan passport in March 2004 and to obtain my [Country 2] visa. It is true I was released by the authorities without legal conditions but I was told I would have to report whenever asked. This is the way the authorities in Sri Lanka operate. I was in hiding for much of the time before I fled Sri Lanka.

23. As there was no formal legal case against me I expect that I was not on a list which would have stopped my exit from Sri Lanka in 2004. A Tamil leaving Sri Lanka during peace time as it was in 2004 is very different to returning now given all that has taken place and especially given my background. Even though a lot of time has passed, CID and other army connected people will not forget who I am. I am certain there will be people who will still want to hmm me.

24. I am a young Tamil from [City 1] Eastern Province who would be being returned after having been away from the country since 2004. My passport which I left in [Country 2] expired in 2009 and I no longer have an identity card which I left in Sri Lanka and which went missing in the Tsunami. I am sure Sri Lanka will know that I have asked for asylum in Australia. I am certain that I will be interrogated at Colombo airport and that I will be detained because of this and because of my background in Sri Lanka.

25. The Sri Lankan authorities will investigate me and will contact CID. The investigations will show that I have been detained and questioned about connections with L TIE and about the killing of an army officer. I am worried that the fact I ran away from Sri Lanka in 2004 will lead them to think I had reason to run. Once I am detained I am very scared of being physically beaten and tortured. as happened to me previously as further punishment.

26. The fact that the details of my arrest were published in the [newspaper] which is a National Tamil newspaper adds to my fears as many people will lmow that I was detained under suspicion in connection with the killing of an army intelligence officer. The fact that I was arrested with [Mr E] who was shot in late 2004 is another

connection I have which will raise suspicion against me. I have real fears that I may end up being shot like my friend.

27. I am afraid that there will be people in the army and CID who knew the officer, and who despite all these years that have passed, will be aware of and who will

28. The fact that my record shows LTTE connection is a big problem. Last year the Sri Lankan police said their authority to take into custody people who were involved with the LTTE could go on for 20 years. The Sri Lanka authorities are still worried about the LTTE rising up again. Tamils who are suspected of LTTE involvement are still being detained and tortured. I believe I am at more risk now because it was peace time when I left, but since then there has been so much conflict and the Sri Lankan government is worried that Tamils returning to the country have been mixing with LTTE people outside Sri Lanka and that we will cause problems again. Even though the CID released me, the fact that my name will be recorded in connection with suspicion over the killing of the army officer means I will be under intense scrutiny. My detention in 2004 and 2000 will come up and I believe the circumstance of my brother's death will also be in my record.

29. I am aware that recently Tamils have been arrested and abducted in Sri Lanka in - Vavuniya, Jaffna, Batticaloa, under suspicion of LTTE connection. There was a Tamil news article just a few weeks ago saying two people were taken in a van and not returned. We do not know where they are, but it seems that special forces have taken them. Their relations have appealed to Human Rights organisations. I am also aware that Tamils returning to Sri Lanka from overseas who are suspected to have L TTE connection continue to be detained. This has all happened under Sirisena's Presidency. The problems for Tamils suspected of LTTE links has not changed.

30. I am also aware that international Human Rights organisations want Sri Lanka to have a certain inquiry into what happened at the end of the war but Sirisena will not agree. I believe the government is afraid that its wrongdoings will be uncovered.

31. Having asked for asylum is a problem because it raises suspicion against me as I said earlier, but also the Sri Lankan government will know I have spoken against them here in Australia. I was also granted refugee status in [Country 2] and it will be presumed I have spoken against the government there also. The Sri Lankan government knows that there are many Tamils in both Australia and [Country 2] who are opposed to it.

32. I am a young Tamil who because of my background is at risk of interrogation, torture and detention by the CID/authorities if returned to Sri Lanka. I am also at risk of being harmed or killed by others outside of legal processes. I seek only to peaceful and safe life in Australia. My mother continues to tell me I should not come back as I will not be safe.

34. For all of these reasons I seek the protection of the Australian Government.

·The following statement provided to the Administrative Appeals Tribunal (case no. 14052982) signed and dated 19 June 2014:

I, [the applicant], of [Address 1], state:

1.  I am the Applicant and am seeking a review of the Department of Immigration and Border Protection's decision to refuse my application for a Protection Visa under exclusion clause Article IF(b) of the Refugees Convention.

2.  I have already lodged a Statement of Claims with my Protection Visa application and state that the claims I have already made are true and correct. Exhibit "A" to this statement is a true copy of that Statement of Claims.

3.  I make the following further statements in order to provide additional detail and clarification in relation to my claims

4.  Around one to two weeks after I returned from Colombo I was at [Church 1] in [Village 1], [City 1]. While I was there, the LTTE cadre [Mr F] was driving past on his motor bike. He pulled over when he saw me and we engaged in a casual conversation. [Mr F] asked me whether I had heard that [Mr A] had been shot. I replied that I had not heard. [Mr F] then told me he had heard on the pews that [Mr A] had been killed. He did not disclose any further detail and I did not ask [Mr F] any further questions as he had previously threatened to kill me. I was scared of him. [Mr F] drove off shortly after. [Mr F] never claimed responsibility for killing [Mr A] nor did he say the LTTE killed him.

5.  I am not aware of who shot and killed the Tamil army intelligence officer [Mr A] or where his death took place. There was a ceasefire in Sri Lanka at the time of the incident but tension between the LTTE and Sri Lankan authorities still remained very high. I believe [Mr A] could have been killed by any number of people at the time.

6.  I was interrogated on two separate occasions in relation to this event and subsequently cleared of any wrong doing by the Sri Lankan authorities. During the interrogations, l admitted that the LTTE had coerced me into confirming the location of [Mr A] at a camp in Colombo. l was able to confirm [Mr A]'s identity as I had previously interacted with him in [City 1].

7.  I was unconditionally released each lime I was interrogated. I assumed that if the authorities had any suspicion that I was involved in [Mr A]'s death, I would not have been released.

8.  Likewise, I would not have been able to depart Sri Lanka on my own passport in July 2004 if I was under suspicion.

9.  After I left, a friend of mine who had been arrested and interrogated with me over the same incident was shot dead. This occurred around two to three months after I left Sri Lanka. I believe the CID killed him in relation to [Mr A]'s death and they would still have a record of my involvement.

10. The Rajapakse regime has been in power since 2005 and has been ruthless in eliminating anyone who has an association with the LTTE. I believe l will either be perceived as an LTTE, cadre or at the very least a high level supporter of the LTTE due to my involvement in the above-mentioned incident and if I return to Sri Lanka I will be killed because of this.

·Decision Record from the General Administrative Division of the Administrative Appeals Tribunal, dated 5 August 2014;

·News Article, with certified English translation, from the Sri Lankan national newspaper [named], titled ‘[Title 1]’, dated [in] 2003.

1. On 6 November 2023, the applicant’s legal representative provided the Tribunal with written submissions and the following documents in support of the applicant’s protection claims:7

   ·The following statement from the applicant, signed and dated 5 November 2023:

   1.  I [the applicant] of [Address 2] [Occupation 5], make this further statement in support of my review at the Administrative Appeals Tribunal.

   2.  I am aware that my appeal to the Court relating to the decision of the previous Tribunal dated 30 June 2017 was successful, and that [in] March 2023 a judgment was made

7 Tribunal file 2305716, Doc Id 11736796.

in my favour. It has been explained to me that my protection visa application must be reviewed by this Tribunal again.

3.  Other than any corrections and updates contained in this statement, I continue to rely on previous information I have provided to the Department of Home Affairs and to the previous Tribunals in support of my protection visa application. My later statements correct some information provided earlier. I confirm that I do not rely on the letters from the [Bishop] as some information in those letters is not correct.

4.  I am now aged [age] and it is almost 20 years since I fled Sri Lanka. Despite this, I continue to fear for my safety there and cannot return. The conditions in Sri Lanka now put me at even greater risk than when the previous Tribunal considered my case in 2016.

5.  By way of update, I am currently employed as a [Occupation 5]. I have full time hours but I do not work every day. I remain single. I am a Christian (Roman Catholic) – I used to attend Church every Sunday in [Suburb 1] despite my language difficulties, but since I moved to [Suburb 2] I am not attending. The Church was close to my home in [Suburb 1] but there is no Church close to where I live now. My Catholic religion remains important to me and I continue to follow my religion and pray. I would prefer to be attending Church. Until I was twelve I would attend church studies on a Saturday, mass on Sunday, and I was an altar boy up until I turned 16.

6.  My mother still lives in [Village 1], [City 1]. I am her main financial supporter. I still transfer funds to her as I have done since I came to Australia.

7.  My brother [Mr B] remains married and living in [City 1]. He was in [Country 1] when I had all of the trouble in Sri Lanka in 2003. He stopped communicating with me after this. My brother [Mr C] is now working in [Country 1]. He was previously involved with TELO a Tamil group which supported the government. I do not communicate with him either. I will discuss this issue with my brothers later in this statement. I confirm that my brother [Mr D] was killed in 1991 by PLOTE – a pro army military group - when he was only 17, suspected of LTTE involvement.

8.  If I am forcibly returned to Sri Lanka from Australia now, after almost 20 years, the authorities will arrest me on arrival and hand me straight over to the CID. They will have all of my background details. They arrested and interrogated me in 2003 in both Colombo and [City 1] in relation to the killing of the army officer – they will still have my fingerprints, paperwork and other information about all of this. Back then, in 2003 it was peace time and very different. Now, if they look back at this incident, and what has happened since, I am sure they will see it differently, they will be suspicious of me as an LTTE supporter and think that I am a danger to the country. I have been arrested on two other occasions also as I have explained. They will easily identify me and my past in Sri Lanka.

9.  I fled Sri Lanka in peace time in 2004 after army intelligence officer [Mr A] was killed, and after I was arrested, detained and interrogated in Colombo and [City 1] about that incident. I was beaten and tortured during transportation to Colombo and while I was held, as I have already explained. Of course, they will believe that my running away from Sri Lanka in 2004 was a sign of my having done wrong and having fear. It was not a time during which many people were fleeing Sri Lanka for reasons of insecurity as happened during the conflict and after.

10. The fact that I stayed away from Sri Lanka for 20 years and was being returned by force, not voluntarily, would add to the suspicion that I had been on the run avoiding return because I have things to hide - including LTTE support.

11. As explained previously, my friend [Mr E] who was arrested and interrogated with me in 2003, was shot and killed late in 2004 after I fled Sri Lanka. The Sri Lankan news reports from December 2004 state that [Mr E] was shot and

killed in [City 1], that he was suspected to have LTTE links, and that he had received death threats from a paramilitary working with the Sri Lankan army the month prior to being killed. The news report also refers to him having been arrested in the past for links with the LTTE but cleared. This would be when he was arrested with me.

12. The fact that [Mr E] was killed like this supports my fears of return to Sri Lanka. Firstly, he was obviously killed outside of a legal process – the reports say a gunman shot him at a hotel. I tried to explain at my last hearing that I was very scared that this would happen to me – that the army and paramilitary groups shoot people or make them disappear outside of the formal legal process when they want to get someone. Just because I was released after formal questioning does not make me safe. [Mr E], was also released, but was shot after being threatened by the paramilitary group working with the Army.

13. The fact that [Mr E] was killed and was reported to have LTTE involvement, will also raise more suspicion against me if I am returned. I was arrested with him on the same day in connection with the killing of the army officer, we were interrogated in Colombo, and it was reported in the newspaper. We are both Tamil and both from [Village 1]. The killing of [Mr E] will lead the Army to the conclusion that he was killed because he was actually guilty of wrongdoing, and that he was with the LTTE. This then also raises the same suspicion against me including of LTTE involvement. [Mr E]’s killing brings much greater attention and suspicion to everything.

14. I have previously explained that I was harassed, pressured and threatened by the LTTE in 2003 – I felt like I would be a target for them no matter what I did, but as far as the army and government is concerned they will see me as LTTE connected and a person to be feared for this reason.

15. [Mr E] and I were not close friends but we were both Tamil and living in [Village 1]. We knew each other from around [Village 1] and also had a common friend [Mr G] who ran a [shop]. In our village the boys would gather and talk at different times and places – it didn’t mean we were close friends. There is a bridge that separates two sections of [Village 1] – I lived on one side and [Mr E] on the other. He was married with two children – he was older and his wife was my age. We were both smokers and hiding that from our family so we would sometime meet along the side of the road when smoking or would sit smoking at bus stops. I never visited his home – it was not that type of friendship. Earlier he was in the police and then he had a local [business]. He married then came to my village after he left the police. I had no knowledge of him being political. On the day in June 2003 that we were arrested by CID we had both separately visited the [shop] where our friend [Mr G] worked. As previously explained we were arrested together and taken to Colombo and it was reported in the newspapers that we were arrested in connection with the killing of the army officer. I recall that the Human Rights people (Sri Lankan Monitoring Mission) came to our home in [City 1] after my release. I am not sure if it was them or someone else who informed me that [Mr E] had also been released. We were held separately on the 4th floor at CID in Colombo. I did not see or speak to [Mr E] after I returned to [City 1]. I feared for my life, was hiding, and could not risk any contact with him in case it brought me more trouble.

16. After being questioned again by CSO in [City 1] sometime after being returned from Colombo I did not stay at home with my mother any more. I did not feel safe. I kept a low profile. I stayed with relatives. At my aunts place I played with the children and mainly stayed at home. I spent some time in Colombo in 2004 while I was arranging to leave Sri Lanka. A friend from [Village 1] helped me with my travel documents. He did some work as an Agent in Colombo and I stayed with him. I remained in the house for my safety. He also contacted another Agent to help me. I had to pay for this. I have mentioned that the authorities came to my mother’s home looking for me before I left and when I was in [Country 2].

17. It has been explained to me that the Court found that the previous Tribunal did not properly consider the further suspicion I would be under and therefore what risk I would face, if sent back to Sri Lanka now. I ask that the Tribunal consider all of the reasons I would be under suspicion because I remain certain that it is not safe for me to go back. This includes me being a Tamil from [City 1], my brother being killed as suspected LTTE, my arrest and interrogation by CID in connection it the killing of an army officer and newspaper coverage of this, the fact [Mr E] my friend from [Village 1] arrested with me was later shot and killed in [City 1] suspected of LTTE connection, my fleeing Sri Lanka after this happened, my long absence from Sri Lanka in [Country 2] and Australia where I asked for asylum and the fact that I have resisted return.

18. Everyone in the village – in [Village 1] will know that I am back. Even [Mr A]’s family is still there. His wife lives in [Village 1]. She will inform his friends that I have returned. This talk in the community will mean that I cannot be safe there.

19. At the time I fled Sri Lanka, [Mr E] had not been killed. I can’t help but think that the same would have happened to me if I had stayed. If I was still in Sri Lanka when he was killed and reported to be with the LTTE, then my situation would have become much worse, as it will be if I have to go back now.

20. If I had to go back to Sri Lanka I would want to ask questions about what happened to [Mr E] for my own safety. I would want to know who killed him, to find out who might also want to kill me. I am scared however that asking questions like this would put me at too much risk.

21. While I have been away from Sri Lanka there has been a number of different leaders – all Sinhalese - but there is no change to their attitude to Tamils who are suspected to be LTTE connected or who might cause future problems in the country. Ranil Wikremasignhe is the current leader. He looks at Tamils as the enemy. The Prevention of Terrorism Act which has been used harshly against Tamils is not abolished. These things have not changed. There is still a lot of trouble for Tamils. I am aware that recently a Tamil judge in Mullaitivu resigned and fled Sri Lanka because he received racist abuse and death threats from Sinhalese groups. I know that the government still wants to make sure that the LTTE does not rise up again

22. I have attended martyr’s day events here in Melbourne several times to mourn the loss of Tamil lives. These events were in [Suburb 3] – I went with Tamil housemates I had at that time. If I was in Sri Lanka I would want to attend these memorial events out of respect for the many Tamils who died and were killed during the conflict. I think I may be too scared though, as this would raise further suspicion against me by the government.

23. Having been in Australia for a long time as a Tamil with my background increases my problems on return. They will suspect that I have asked for asylum and that I have stayed away because I support the LTTE and am against them. I would be returned under protest and the Sri Lankan government would know this.

24. I also have fears for my safety as a Christian in Sri Lanka. My mother’s sisters’ children were badly affected by the 2019 Easter bombing of the Zion Christian Church in [City 1]. They were at the Church when it was attacked. One was 25% affected and the other 50%. I come from a very religious family. My mother goes to three Churches on different days - [Church 1] and [Church 2] in [City 1] and [Church 3] in [Village 1]. I used to attend Church regularly before I was arrested and went into hiding. Many Christians now have a lot of trauma and fear about going into the Church. My mother is elderly and like other elderly people is prepared to take the risk. As a Tamil, also being a Christian, does increase the risk of harm from Muslim and Buddhist groups in particular.

25. I am also worried because the economic situation is so bad in Sri Lanka at present. I do not think I will able to get a job – partly because of the economy and high unemployment but also because everyone will know me and not want to employ me in

case it causes trouble. Employers are nervous to employ people who are thought to be LTTE connected.

26. My brothers will not help me financially if I have to return. They have their own families and difficulties. Also, there has been a falling out. My mother sold the house she was living in to help me flee from Sri Lanka in 2004 – she was worried about me and decided that my safety was so important. I took some, not all, of the sale proceeds but my brothers were not happy and expect me to support our mother as a result. My brothers also pressured me to send funds to them but it is very difficult for me. My brother [Mr B] had been very angry with me because before I was arrested he wanted to me to go to [Country 1] to work but I refused. I was childish and did not want to go there. I regret that decision now. If I had gone to [Country 1] at that time these problems may never have happened.

27. I am certain that I cannot be safe in [Village 1]/[City 1] for the reasons I have given. Outside of [City 1] I would be located by the authorities and others that I fear harm from. They will find me. I would still be afraid for my safety and would feel like I needed to hide. Another problem is that I do not have any Sri Lankan identity documents at present and will have to obtain new ones from the authorities. The identity card will say I am from [City 1]. I think the authorities will watch me. People are generally suspicious of new comers to an area which is another problem for me because I will not be able to escape from my background and problems. Also, I have no one who can accommodate and support me outside of [City 1]. I have no family outside of [City 1]. I would return to Sri Lanka with no savings. I have said that I worry that I may not be able to get work. There is no welfare system in Sri Lanka. The economy is still very bad. I don’t know how I would survive elsewhere.

28. I am very critical of the Sri Lankan government and the treatment of Tamils especially in the East and the North. Despite the economic crisis I understand that the army continues to recruit which I cannot understand. They say they have no money but continue to ask for more army manpower. I am certain that this is because they want to keep the Tamils under control and this makes me fear what the future holds.

29. For all the reasons I have set out I ask the Australian government to grant me protection.

·Online news article titled ‘[Title 2]’, published by [Media 1], dated [in] 2004;

·Online news article titled ‘Tamil Judge quits and flees Sri Lanka fearing death threats’, published by The Leader, dated 29 September 2023, and accompanying image of a resignation letter referred to in the article;

·Online news article titled ‘Residents of multiethnic Batticaloa town in Sri Lanka grieve for church attack victims as faith leaders call for unity’, published by Al Jazeera, dated 24 April 2019.

1. On 8 November 2023 the applicant’s legal representative provided further written submissions and the following documents in support of the applicant’s protection claims:8

   ·News article, with English translation, titled ‘[Title 1]’, published by [named newspaper] Sri Lanka, dated [in] 2003, as referred to in paragraph 36.

8 Ibid, Doc Id 11749238.

·[Media 2] news for December 2004, highlighting the article ‘[Title 2]’ as referred to in paragraph 37 and the article titled ‘[Title 3]’.

Consideration of claims and evidence

1. The decision in this review depends on five issues being determined in favour of the applicant, namely:

   ·Whether the applicant faced a real chance of serious harm at the time he left Sri Lanka in July 2004; if so,

   ·Whether the real chance of serious harm would operate upon the applicant if he were returned to Sri Lanka now or in the reasonably foreseeable future; if so,

   ·Whether the real chance would be for the reason of his ethnicity and imputed political opinion; if so,

   ·Whether the real chance relates to all areas of the receiving country; if so,

   ·Whether the real chance could be avoided by the applicant taking reasonable steps to modify his behaviour without compromising his identity, conscience, or concealing or altering an innate or immutable characteristic, including, but not limited to, his contentiously held political beliefs.

2. Before dealing directly with these issues, it is convenient to dispense with discrepancies between the contents of a letter written by a Roman Catholic Bishop in Sri Lanka about the applicant’s reasons for leaving Sri Lanka, and the applicant’s written and sworn evidence about his reasons for leaving Sri Lanka. Having considered the applicant’s explanation for these discrepancies given in his statutory declaration9 dated 25 April 2016, and the Tribunal’s assessment the applicant’s credibility at hearing, the Tribunal prefers the applicant’s explanation for the discrepancies and his reasons for leaving Sri Lanka, to what was said on the latter topic in the Bishop’s letter, a document based on hearsay information. The Tribunal gives no weight to the information provided by the Bishop, upon the urgings of the applicant’s mother, a person the applicant has supported financially since he departed Sri Lanka, and with whom he has a close relationship.

3. The applicant asserts his family had come to the attention of the state security apparatus before he left Sri Lanka, at the behest of his mother, who together with the applicant, feared who would be killed for the reason of the political beliefs imputed to him by the State security services.

4. The applicant has consistently asserted in his written and oral evidence that his younger brother, [Mr D], was murdered in 1991 when he was 17 years of age. The applicant maintains that his family members believe his brother was killed by a group of para-military Tamils allied with the Singhalese dominated armed forces and national government, because he was suspected of assisting the Liberation Tigers of Tamil Eelam (LTTE), a Tamil separatist military force engaged in a protracted civil war with the government to establish a separate, self-governing Tamil state in Sri Lanka. According to the applicant, his parents suspected [Mr D] was an active supporter of the LTTE.

5. The applicant asserts he was very upset by his brother’s death. The applicant said at the time of his brother’s death he lived with his parents in [Village 1], an area controlled by the

99 Tribunal file 1418408, Doc ID 2814639.

government’s armed forces, however, parts of the eastern province of [City 1], in which [Village 1] is located, was controlled by the LTTE. The LTTE separatists and the government’s armed forces were competing for control of [City 1].

1. The applicant states his first direct contact with the security apparatus occurred in 2000, when he was visiting the national capital Colombo, with a relative to watch a football match. When travelling at night in the city they were stopped by police for a routine check. He was held in detention for about a week, presented to court twice, but released without charge.

2. The occurrence of such an event is consistent with the high level of vigilance deployed by the state security apparatus before the LTTE was comprehensively defeated in 2009, a significant event discussed in the DFAT Country Information Report Sri Lanka (December 2021) (DFAT report). According to the DFAT report many Tamils, particularly in the north and east, report being monitored, harassed, arbitrarily arrested and detained by security forces during the war.10

3. The applicant asserts he was arbitrarily detained by police in Colombo on suspicion but because he was a young Tamil man from the eastern province of [City 1], an area of the country contested by the LTTE.

4. The applicant has consistently said he was not charged with any offence, and his freedom of movement was not subject to any order of the court. As the Tribunal understands the applicant’s application, he contends his arrest and detention is evidence state security recoded him as a person suspected of harbouring pro-LTTE opinions.

5. The applicant states he was tasked by the LTTE in 2003 to gather information in Colombo about the movements of a Tamil believed to be an intelligence officer working for the national government against the LTTE. The applicant travelled to Colombo and undertook a short course in [specified trade]. While in Colombo he observed the relevant person entering an army barracks. The applicant returned home and reported his observations to the LTTE.

6. The applicant said in written and oral evidence that the Tamil intelligence officer he reported on to the LTTE was [Mr A]. Subsequently he was killed. The applicant was arrested along with an acquaintance named [Mr E]; they would meet at [a] shop in [Village 1]. They were arrested on suspicion of involvement in the assassination of the State employed Tamil intelligence officer.

7. The applicant said he was interrogated by members of the Criminal Investigation Department (CID) in [City 1] and then transported to Colombo, where he was interrogated and tortured. Under interrogation he admitted to providing information to the LTTE about seeing [Mr A] at a military base in Colombo. The applicant was subsequently released from detention and returned home.

8. [Mr E] was also released.

9. According to the applicant’s written and oral evidence he was afraid that he had become a person of significant interest to the State security apparatus because he admitted he assisted the LTTE, and provided information to the LTTE about a Tamil intelligence officer who was subsequently murdered.

10 DFAT report [3.8].

1. The applicant’s evidence is supported by a contemporaneous newspaper report.11 The report was published [in] 2003 and provided to the Tribunal as part of written submissions made by Ms Burchfield, solicitor, for the applicant. As the Tribunal understands Ms Burchfield’s oral submissions, her research unearthed the newspaper report and additional relevant reportage about this issue which will discussed later in these reasons.

2. It is convenient to summarise the newspaper report. [In] 2003 the [named] Sri Lanka newspaper, a Tamil national newspaper published daily, reported that relatives of [Mr E] ([age] years), father of two children, of [specified address] [Village 1], and [the applicant] ([age] years) of [Village 1], [specified address], reported to the [City 1] Human Rights Commission, that the two men were abducted on Wednesday, in a vehicle after they were surrounded by police outside a hospital. The relatives were unable to ascertain the whereabouts of either of them. The relatives reported the matter to [City 1 MP] who spoke to the local [commanding officer] on their behalf. He said both men were arrested by officers of the Special Investigation Division who had travelled from Colombo. Both men were arrested in connection with the murder of an army investigation officer.

3. The Tribunal finds the applicant’s evidence considered in conjunction with [the] 2003 newspaper report and the cited DFAT report, to be sufficient to establish the applicant and [Mr E] were arrested and interrogated by state security agents in Colombo because they were suspected of some involvement in the murder of a Tamil who was a member of the anti-LTTE security apparatus.

1. The applicant asserts that after he was released from detention in Colombo, and he returned to his home province, he was contacted by members of the LTTE who told him to attend a meeting in the LTTE controlled region of [City 1]. The applicant was afraid they would interrogate him about what occurred in Colombo when he was in detention to discover by force what information he may have revealed about his contacts with the LTTE.

2. The applicant used a paid agent to obtain a [Country 2] tourist visa, and he fled Sri Lanka in the firm belief he was a person viewed by the state security services as a likely threat to national unity and state security. He also feared the LTTE suspected he may have been turned into an informer, and disclosed information about his contacts with the LTTE, and implicated them in the murder of [Mr A].

3. The applicant asserts his assessment of the risks of serious harm he faced after being ‘unwittingly’ implicated in the murder of [Mr A], proved to be correct. In written and oral evidence, the applicant has consistently asserted that shortly after he departed Sri Lanka, his acquaintance, [Mr E], the person who was abducted when he was abducted, was murdered in December 2004. This evidence was verified by information contained from two separate publicly available sources of information in Sri Lanka.

4. According to written submissions made by the applicant’s legal representative, her research unearthed information about the death of [Mr E],12 and in addition to [the] 2003 newspaper report, it serves to verify the applicant’s evidence that [Mr E] was murdered in 2004 soon after he departed Sri Lanka. It also serves to verify the applicant’s evidence that he would be murdered if he did not leave Sri Lanka.

11 Tribunal file, Doc ID 11749238.

12 Ibid.

1. The first report was sourced from [Media 1] and dated [in] 2004. It reported that [Mr E], a former policeman, and suspected LTTE sympathiser was shot dead outside a guest house in [City 1] town on Friday about [time]. The article provided information about his residential address, and family details. It also reported that he had previously been arrested and questioned about his alleged links to the LTTE, and that he had received death threats from forces aligned with the government. The second report obtained via a Google news search, discovered a report dated [in] [2004] sourced from the Sri Lankan army (SLA) which states an ex-policeman who was an alleged supporter of a faction of the LTTE, the WANNI faction pistol group, was shot dead by unidentified persons inside a hotel in [City 1] town, around [specified time] [in] 2004.13

2. The applicant’s evidence supported by [the] 2003 newspaper report and the two additional news reports sourced by the applicant’s legal representative, considered in conjunction with the cited DFAT report, is sufficient to establish to the satisfaction of the Tribunal that the applicant faced a real chance of serious harm from state actors, for the reason of imputed political opinion, namely he was a Tamil separatist and a threat to state security and national unity.

3. The evidence is also sufficient to establish to the satisfaction of the Tribunal that the applicant faced a real chance that the LTTE suspected he betrayed them by informing the state security officials who interrogated him in Colombo that he was required to gather information on [Mr A], and report back to the LTTE. Relevantly, the Tribunal notes in this regard that [Mr E] was suspected by state security of being an LTTE operative and involved in the murder of [Mr A]. It is not unreasonable to infer from the evidence that members of the LTTE may suspect the applicant implicated [Mr E], in the murder of [Mr A], and for that reason he was murdered by state security personnel shortly after the applicant left the country.

A determinative issue

1. A determinative issue in this case is whether the real chance of serious harm the applicant faced when he departed from Sri Lanka, would be enlivened if he is removed to Sri Lanka now or in the reasonably foreseeable future.

2. According to the DFAT report14 the LTTE was comprehensively defeated in 2009, nevertheless Sri Lankan authorities remained concerned over its potential re-emergence, and the separatist tendencies in general. In this regard DFAT states Sri Lankan authorities collect and maintain sophisticated intelligence of former LTTE members, supporters, and separatists.15 The Tribunal is satisfied there is a real chance the applicant’s name and political profile would be the subject of the intelligence records of the state security apparatus. The Tribunal is also satisfied that the evidence establishes, consistently with the DFAT report about high-profile members of the LTTE,16 the applicant is reasonably likely to be classified as a high-profile former member of the LTTE who was arrested and detained with another suspected LTTE operative, namely, [Mr E], on suspicion of their involvement in the murder of a named state intelligence officer.

3. In forming this view of the evidence, the Tribunal does not infer from the evident decision to release the applicant and [Mr E], that the applicant was not classified as a Tamil separatist and LTTE activist. There are many potential reasons why a suspected LTTE operative may be released into the community by security officials, such as

13 Ibid.

14 DFAT report, [3.41].
15 Ibid.
16 Ibid [3.47].

he had become, either willingly or unwittingly, a potential source of intelligence about the activities of the LTTE. The Tribunal does not infer from the release of the applicant, that he was no longer of interest to state security officials.

1. This view is consistent with common sense, and it is strengthened by the reportage that [Mr E], was detained with the applicant, but killed a relatively short period after the applicant left the country. His death was reportedly linked to his alleged role in the LTTE, and the murder of a state security official. It is evident the applicant’s circumstances at the time he left Sri Lanka, substantially mirrored the security concerns about [Mr E]. According to the applicant’s case his departure from the country was timely and it saved him from sharing the fate of [Mr E].

2. The DFAT report demonstrates the applicant would be detained by security officials upon his return to Sri Lanka. In that circumstance he would be questioned, and his intelligence profile would be searched.17 Inquiries into his background would be made with local authorities. These inquiries are reasonably likely to be made to assess whether the applicant poses a threat to national security, and whether he supported the objectives of the LTTE and has a propensity to advance Tamil separatism as a solution to economic hardship deprivation.

3. DFAT is not aware of failed asylum seekers being detained except for those who departed the country illegally, in which case they would be charged, bailed, and prosecuted for that offence.18 The DFAT report also states DFAT is not aware of detainees being mistreated during processing at the airport.19 In the assessment of the Tribunal the applicant is unlikely to be regarded as an ordinary returning failed asylum seeker and former LTTE supporter, involuntarily returning to Sri Lanka.

4. In the assessment of the applicant, it is reasonably likely intelligence records of the state security apparatus20 would pair the applicant with [Mr E], and that prospect combined with his personal security risk profile, indicates a reasonable likelihood the state security records concerning the applicant, may indicate he would have been subjected to an extra judicial execution if he remained in the country.

5. There is a real chance the applicant would be regarded by members of the state security apparatus as a person who owes an ‘unpaid debt’ to the intelligence services for his role in the death of an intelligence official, a relatively short period before he left the country.

6. In the assessment of the Tribunal there is also a real chance state security records would classify the applicant, by admission, to be a former a LTTE covert activist, and Tamil separatist predisposed to Tamil nationalism and separatism, and predisposed to involving himself in violence to advance the interests of Tamils.

7. It is useful to restate that the DFAT report states the LTTE was comprehensively defeated in 2009. The DFAT report also states, citing authority, that torture and sexual violence by security forces still occurs, and that ex-LTTE cadres exist, and while they are no longer affiliated with an extant LTTE, they are subject to harassment and discrimination by the government.

17 Ibid [5.17].

18 Ibid [5.17].
19 Ibid [5.20].
20 Ibid [3.41].

1. Additionally, the DFAT report states Sri Lankan authorities remain concerned over the potential re-emergence of the LTTE, and to separatist tendencies in general.21

2. The US Department of State Human Rights Practices Report 2022, Sri Lanka, relevantly states in the Executive Summary to the Report that:

   Significant human rights issues include credible reports of: unlawful and arbitrary killings, including extrajudicial killings; torture and cruel, and inhuman or degrading treatment or punishment by the government; harsh life threatening prison conditions; arbitrary arrest and detention.

1. Having considered the cited country information, the applicant’s evidence that the state security apparatus maintains sophisticated intelligence gathering resources and records, there exists a real chance the applicant’s reported involvement in the murder of a state security intelligence officer would be disclosed upon his return, and the applicant, viewed by the authorities through the prism of that role, would face a real chance of being treated as a Tamil who poses a present risk to national unity and state security.

2. Considering the authorities are currently concerned to prevent the re-emergence of the LTTE and separatist tendencies in general, and that the applicant upon returning to the country involuntarily, to likely to be confronted by a significant Tamil separatist profile, and considering the long history of practices involving human rights abuses, and extrajudicial detention, torture and killing of Tamil separatists, and the cited country information generally, the Tribunal is satisfied there is a real chance the applicant would be detained and imprisoned, upon being removed to Sri Lanka.

3. Additionally, the Tribunal is satisfied of the existence of a real chance the applicant would be persecuted in detention by state security officials, or their agents, for the reason of his ethnicity, combined with imputed Tamil separatist tendencies, and his role in the murder of an intelligence officer.

Findings

1. Having considered the applicant’s claims individually and cumulatively, the evidence, considered in conjunction with the cited country information, 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 reasons of his ethnicity combined with imputed political opinion, that being a combination of reasons that meet the provisions of s 5J(1)(a) of the Act, if he is removed to Sri Lanka now, or in the reasonably foreseeable future. Accordingly, the applicant satisfies the criterion in s 36(2)(a) of the Act.

2. The Tribunal is also satisfied persecution for the reason of ethnicity combined with imputed political opinion, is the essential and significant reason for the real chance of persecution faced by the applicant, and that the persecution would involve systematic and discriminatory conduct carried out by state actors because of the certainty he would be processed by state security officials immediately upon his removal to Sri Lanka.

3. Given the foregoing findings, the issues of whether the real chance of serious harm relates to all areas of Sri Lanka, and whether the applicant could take reasonable steps to modify his behaviour to avoid the real chance do not arise for consideration, because the Tribunal finds the evidence and DFAT report, and the specifically cited parts of the country information, demonstrate the applicant would face a real chance of immediate and ongoing detention at the time he is processed, upon being removed to Sri Lanka.

21 DFAT report [3.41].

1. Consequently, the Tribunal is satisfied the applicant has a well-founded fear of persecution for a combination of reasons specified in s 5J(1) of the Act, namely ethnicity combined with imputed political opinion, and that the applicant meets the definition of refugee as set out in s 5H of the Act.

2. 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

1. 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

Notation

The Tribunal notes that the written submissions made by the applicant’s legal representative, Ms Bruchfield, were of considerable assistance to the Tribunal.