2443806 (Refugee)

[2025] ARTA 1890

2443806 (Refugee) [2025] ARTA 1890 (11 August 2025)

DECISION AND  

REASONS FOR DECISION

Respondent:Minister for Immigration and Citizenship

Tribunal Number:  2443806

Tribunal:General Member M Bailey

Date:11 August 2025

Place:Brisbane

Decision:The Tribunal affirms the decisions under review

Statement made on 11 August 2025 at 2:25pm

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – ethnicity – Tamil – particular social groups – Tamil failed asylum seekers, Tamils who departed Sri Lanka unlawfully, and Tamil Sri Lankan women and girls – due to work locations was subject to questioning/searches by authorities at checkpoints – imputed political opinion due to perceived links to Liberation Tigers of Tamil Eelam (LTTE) – suspected of smuggling weapons for the LTTE – detained, beaten and tortured – family harassed and beaten – wife raped – claims not credible – females face gender-based harm – reports of sexual harassment by military – returning as a family unit, not as single women – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 351, 369, 499
Migration Legislation Amendment Bill (No 6) 2001, Revised Explanatory Memorandum
Migration Regulations 1994 (Cth), Schedule 2

CASES

AWG18 v Minister for Home Affairs [2018] FCCA 2150; [2020] FCA 744
AWG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1062
AXQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 195
AXQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 39
Chan Yee Kin v MIEA [1989] HCA 62
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Citizenship (delegate) on 24 October 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (applicant) lodged an application for a Safe Haven Enterprise (subclass 790) visa on 15 December 2016. This application included his wife, [Wife A], the second named applicant (second applicant) and his younger daughter, [Child A]. The delegate refused to grant the visas on the basis that the applicant did not satisfy the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act. The other applicants were found to not meet the criteria for grant of a protection visa under s 36(2)(b) or s 36(2)(c) as members of the same family unit.

3. The delegate’s refusal decision was referred to the Immigration Assessment Authority (IAA) for review. On 8 February 2018 the IAA affirmed the delegate’s decision. The applicants sought judicial review. The Federal Circuit Court found there to be no jurisdictional error and dismissed the appeal.[1] On 29 May 2020, following an appeal to the Federal Court, the matter was remitted to the IAA for reconsideration.[2]

   [1] AWG18 v Minister for Home Affairs [2018] FCCA 2150 (Ex-tempore judgment dated 30 July 2018, with written reasons dated 16 October 2018)

   [2] AWG18 v Minister for Home Affairs [2020] FCA 744

4. On 12 August 2020 the IAA (constituted by a different Reviewer) affirmed the delegate’s refusal decision. The applicants sought judicial review with the Federal Circuit and Family Court (FCFC). On 17 October 2024 the FCFC allowed the appeal with respect to the applicant and second applicant and remitted the matter to the IAA.[3] The basis of the FCFC decision is discussed below. The applicant’s younger daughter, [Child A], who was born in Australia [on date], was removed as a party to the proceeding as she had gained Australian citizenship. 

   [3] AWG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1062

5. On 14 October 2024 the IAA ceased and the Administrative Review Tribunal (the Tribunal) was established to review protection visa decisions. The remitted matter for the applicant and second applicant is now before the Tribunal for reconsideration.

6. The appeal proceedings for the applicant’s wife were considered separately to those of the other applicants due to confidentiality issues. On 3 February 2022 the FCFC dismissed [Wife A’s] appeal.[4] In March 2023 the FCFC decision was upheld by the Federal Court.[5] [Wife A’s] case has been finalised and does not form part of my review.

   [4] AXQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 39

   [5] AXQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 195

7. The applicants were represented in relation to the review by a lawyer from the Refugee and Immigration Legal Service (RAILS). The first and second applicants appeared before the Tribunal at the Brisbane Registry on 16 June 2025 to give evidence and present arguments. Their representative attended the hearing. The family’s social worker attended as a support person. The Tribunal received oral evidence from [Wife A]. The Tribunal hearing was conducted with the assistance of a female interpreter in the Tamil (Sri Lankan) and English languages.

   BACKGROUND

8. The applicant is [an age]-year-old male of Tamil ethnicity from Batticaloa, Eastern Province, Sri Lanka. The second applicant, currently [age] years old, is the applicant’s daughter. She was born in Batticaloa and is of Tamil ethnicity. The applicants arrived in Australia by boat as unauthorised maritime arrivals [in] April 2013. The second applicant was [age] years old at the time of her arrival. While in immigration detention on Christmas Island, the applicant attended an ‘Enhanced Screening’ interview [in] April 2013 and an ‘Irregular Maritime Arrival & Induction’ interview (Arrival interview), conducted in two parts in June and July 2013 with officers of the (then) Department of Immigration and Citizenship (Department). [6]

   [6] Currently the Department of Home Affairs

9. The applicants provided Sri Lankan identity documents to the Department as part of the protection visa application. The Department and IAA accepted them to be citizens of Sri Lanka. Based on the available evidence, I am satisfied the applicants are citizens of Sri Lanka and that Sri Lanka is their receiving country for the purpose of assessing their protection claims. The applicants have consistently claimed to be of Tamil ethnicity and Hindu religion, and to have resided in Batticaloa, Eastern Province, prior to their departure for Australia. These claims were accepted by the Department and IAA. Based on the available evidence, I have no concerns with these claims.

   CLAIMS AND EVIDENCE

   Protection visa application

10. The applicants were represented in relation to the protection visa application by RAILS. The applicant provided a Statutory Declaration dated 18 April 2017 and attended an interview with the Department on 23 August 2017. I have listened to an audio recording of the interview. In summary, he claimed that he would face harm from the Sri Lankan authorities for reasons of his Tamil ethnicity, imputed political opinion due to perceived links to the Liberation Tigers of Tamil Eelam (LTTE) and membership of particular social groups comprising Tamil failed asylum seekers and Tamils who departed Sri Lanka unlawfully.

11. The applicant’s claims as stated in his Statutory Declaration are summarised below:

    i.His father passed away when he was a teenager. His mother [and siblings] reside in Sri Lanka. Another brother resides in [Country 1]; [another] brother passed away in 1989.

    ii.He never belonged to or worked for the LTTE and never transported supplies or weapons for the LTTE.

    iii.Between 2001 and 2005 he worked as [an Occupation 1, performing various job tasks] from four areas in Batticaloa District (Villages 1–4) which at that time were controlled by the LTTE. While [in the process of his work] to his hometown in Batticaloa, he was subject to regular searches at Sri Lankan Army (SLA) checkpoints.

    iv.Between approximately July 2005 and January 2008 he resided in [Country 1] where he worked as [an Occupation 2]. In May the applicant married his wife; they lived in his mother’s house in Batticaloa. Following his return to Sri Lanka, he resumed working as [an Occupation 1 performing various job tasks] between [Villages 1–4] and his hometown in Batticaloa District. The SLA became more suspicious of his activities. They came to his house to question him about whether he was smuggling weapons for the LTTE.  

    v.In 2009, [the] applicant was stopped at a SLA checkpoint at [Village 5] and ordered to unload his items. When he protested, he was beaten and taken to a ‘Special Task Force’ camp in [Town 1]. He was forced to undress and was subjected to torture, including of a sexual nature. He was released the following day.    

    vi.[In] January 2013 a group of men in a white van came to his house while he was at work. They threatened his mother and wife, demanding to know the applicant’s whereabouts. Three days later], a group of men in a white van again came to his house. The applicant was blindfolded and forced into the van. He was taken to a house where two other men were detained. The applicant was asked if he knew these men and vice versa. He was beaten and hung upside down while they hit his ears which resulted in a rupture to his left ear. The following day he was questioned about his travel between LTTE-controlled areas and accused of smuggling weapons for the LTTE. He was released the following night.

    vii.He returned to work about 15 days after this incident. A few days later, a white van came to his house again while he was at work and questioned his wife regarding the applicant’s whereabouts. That night, after returning from work, the applicant, his wife and the second applicant left his mother’s house. The went to his father-in-law’s home in [Town 2], Ampara District where they remained in hiding for around two months before departing Sri Lanka [in] April 2013.

    viii.About two months after they arrived in Australia the applicant’s mother told him she had escaped from her home as the authorities were frequently coming to her house and questioning her regarding the applicant’s whereabouts. After telling them that the applicant and his family may be in [Town 2], the authorities went to his in-law’s home and questioned them. They tied his father-in-law to a tree and interrogated him about the applicants. They beat his father-in-law because he refused to disclose the applicants’ whereabouts.

12. While the applicant’s wife and daughters did not raise their own protection claims, the applicant claimed in his Statutory Declaration that, as vulnerable females, they would be at risk of physical and sexual assault by the authorities. In a post-interview submission dated 6 September 2017, RAILS referenced various sources of country information regarding the risk of violence toward Tamil women in Sri Lanka, including in the Eastern Province.   

13. In refusing the application, the delegate expressed ‘considerable doubt’ regarding the applicant’s account of his experiences with the SLA and his general credibility. It was noted (as discussed with the applicant at the protection visa interview) that he had not raised the claimed incident in late 2009 in his Enhanced Screening or Arrival interviews. The delegate expressed concerns about the applicant’s explanation to the Department for these omissions (that he was fearful of disclosing this incident due to possible consequences from the Sri Lankan government) given that he previously disclosed another incident of harm from the Sri Lankan authorities in 2013. However, considering country information regarding the treatment of Tamil males by Sri Lankan authorities during the civil war and its aftermath, the delegate accepted that the applicant was detained and assaulted in 2009 and 2013 as claimed. Given the applicant’s release after a few days, the delegate found that he was not of ‘ongoing and particular interest to the Sri Lankan authorities’ at the time of his departure.

14. Having regard to country information, the delegate found the applicant would not have a profile that would cause him to be of adverse interest to the Sri Lankan authorities on return for reasons of any real or perceived LTTE links, his Tamil ethnicity or as a Tamil male from the Eastern Province, being an area previously controlled by the LTTE. The delegate accepted that due to his return as a failed asylum seeker, the applicant would be subject to identity and security checks on arrival. In his particular circumstances, the delegate was not satisfied that this would give rise to a real chance of serious harm. The delegate accepted that the applicant may be prosecuted under laws of general application in connection with his illegal departure which, as an ordinary passenger on a people smuggling venture with no other profile of interest, could involve a short period on remand and imposition of a fine. This was found to not amount to persecution or significant harm.

15. Regarding the claims of gender-based violence, the delegate acknowledged country information indicating the prevalence of violence against women in Sri Lanka, particularly in areas affected by the civil war. Reference was made to credible allegations of sexual assault perpetrated by the Sri Lankan military in the Northern and Eastern Provinces. However, the delegate was not satisfied that the authorities are currently ‘actively perpetrating violence against women on behalf of the state’. The delegate found the female applicants to not have a well-founded fear of persecution or face a real risk of significant harm due to their gender. 

    First IAA review

16. The IAA accepted that the applicant had no actual affiliation or involvement with the LTTE. Considering country information indicating Tamils were routinely harassed during the war and under the Rajapaksa government, the IAA accepted, as raised in his Arrival interview, that the applicant along with other villagers was held for one or two days on suspicion of LTTE involvement following a round up in 2000. The IAA also accepted that between 2001 and 2005 the applicant’s work involved him travelling to four LTTE controlled areas; he was subject to questioning/searches by the authorities at checkpoints; occasionally the authorities came to his home to question him; and following his return from [Country 1] in 2008 he continued to travel through some checkpoints, where he was subjected to routine checks.

17. Due to significant inconsistencies and omissions, the IAA expressed serious concerns about the credibility of other aspects of the applicant’s evidence, finding that he had embellished and fabricated parts of his evidence in order to bolster his claims for protection. The IAA did not accept the claimed incident at the checkpoint in late 2009 to be credible. This was primarily based on the following issues:

    i.Contrary to the applicant’s claims in his Statutory Declaration, the IAA found that none of the areas the applicant travelled to for work after his return from [Country 1] in 2008 were then controlled by the LTTE. This was based on country information indicating that the LTTE withdrew from the Eastern Province in 2007, and the Sri Lankan government militarily defeated the LTTE and had complete territorial control over Sri Lanka as of May 2009.

    ii.The applicant provided inconsistent or unresponsive answers to the above when raised by the delegate during the protection visa interview. The applicant responded that the LTTE was not in control of those areas in 2008/2009. However, he also stated that he was returning from a LTTE controlled area when the checkpoint incident occurred. The Departmental interviewer confirmed with the applicant that his Statutory Declaration was prepared with the assistance of a Tamil interpreter and asked him to explain several times why he stated in the Statutory Declaration that those areas were still under LTTE control. The applicant’s answers were described by the IAA as ‘non-responsive’. In post-interview submissions, the applicant appeared to again suggest that the areas were LTTE-controlled in 2009.

    iii.The delay in disclosing the claimed detention and torture by the SLA in late 2009 until his April 2017 Statutory Declaration was found by the IAA to be significant. The IAA considered the applicant provided inconsistent explanations as to why he failed to previously disclose this incident and found that his explanations were undermined by his detailed disclosure during his Arrival interview of the January 2013 incident.

    iv.Inconsistencies in his evidence of the harm experienced during the 2009 and 2013 incidents. In his Statutory Declaration, he claimed that during the 2013 incident he was hung upside down and beaten on his ears, resulting in a rupture to his ear. During the protection visa interview and in a post-interview submission, he stated that this occurred in 2009, not 2013.

18. The IAA accepted the applicant’s account of being abducted [in] January 2013 and released the following day. The IAA did not accept the applicant had been under surveillance from 2009 to 2013 or questioned about carrying weapons from LTTE controlled areas. The IAA did not accept the applicant’s wife and mother had been threatened or harmed by the authorities during visits to their home. The IAA noted that the applicant’s wife had not referred to any such incidents in her Arrival interview and did not consider it credible that the authorities would release the applicant the day after his abduction in January 2013 if he was genuinely of adverse and continuing interest. The IAA found the Sri Lankan authorities did not have any adverse interest in the applicant at the time of his departure.

19. The IAA did not accept that the Sri Lankan authorities made enquiries regarding the whereabouts of the applicants following their departure from Sri Lanka, which led to the applicant’s mother leaving her house and his father-in-law being beaten and tied to a tree. The IAA noted that, while in their Arrival interviews the applicant and his wife had claimed that their parents had been contacted by the authorities, they made no mention of his mother’s move or his father-in-law’s physical abuse.

20. The IAA considered a range of country information regarding the applicant’s claims to fear harm for reasons of his Tamil ethnicity, residence in the Eastern Province, travel to former LTTE-controlled areas, and imputed LTTE links. Based on its factual findings, the IAA found that the applicant did not have a profile that would result in a real chance or risk of harm from the Sri Lankan authorities for any of these reasons. The IAA therefore found the other applicants would not face a real chance or risk of harm due to their relationship with the applicant or as Tamils from the Eastern Province.

21. Regarding the claims raised on behalf of the female applicants of gender-based violence, the IAA accepted that women in Sri Lanka may be vulnerable, with harassment, rape and other forms of sexualised violence acknowledged as serious social problems. The IAA referred to country information indicating that women in female-headed households and those in the Northern Province are particularly vulnerable. While acknowledging DFAT’s assessment that overall women in Sri Lanka face a high risk of societal discrimination and violence, the risk was considered to particularly relate to domestic or intimate partner violence. The IAA concluded that, given the female applicants would be returning to the Eastern Province with the applicant and in the absence of any claims relating to domestic/intimate partner violence, they did not face a real chance of harm due to their gender.

1. The IAA accepted that the applicant, his wife and the second applicant would be considered failed asylum seekers who departed Sri Lanka illegally. Having regard to a range of country information, the IAA was not satisfied that any of them would be of adverse interest to the Sri Lankan authorities on return for these reasons. The IAA accepted that the applicant and his wife would likely face prosecution under the Immigrants and Emigrants Act 1949 (I&E Act) for departing Sri Lanka unlawfully. This was found to be a law of general application and to not amount to persecution. For the purposes of the complementary protection criteria, the IAA found the consequences of any prosecution under the I&E Act to not amount to any of the types of significant harm in s 36(2A). Based on country information, the IAA found that the second applicant would not be subject to prosecution under the I&E Act as she was a child at the time of her departure.

   Federal Court remittal

2. The Federal Court found jurisdictional error on the basis of the IAA’s failure to take into account evidence concerning the risk of harm to the three female applicants due to their ethnicity and gender. This evidence consisted of three country information reports cited by RAILS in its post-interview submission: a January 2016 report by the International Truth and Justice Project Sri Lanka (ITJP),[7] May 2016 UK Home Office report,[8] and January 2017 UN Special Rapporteur on minority issues.[9] While the IAA referred to these documents in other parts of its reasons, they were not referenced in its reasons relating to the risk of gender-based violence. The Court found that the IAA had failed to consider them in this context.

   [7] International Truth & Justice Project Sri Lanka, Silenced: survivors of torture and sexual violence in 2015, January 2016

   [8] UK Home Office, Country Information and Guidance – Sri Lanka: Tamil Separatism, May 2016

   [9] UN Human Rights Council Report of the Special Rapporteur on minority issues on her mission to Sri Lanka – note by the

   Second IAA review

3. RAILS provided written submissions dated 18 June 2020 relating to all four applicants, with a focus on the claims of gender-based violence for the female applicants. The applicant’s wife provided a separate statement raising new claims of being subject to multiple incidents of rape and sexual assault by the SLA between mid-2008 and mid-2009. RAILS requested that this information be kept confidential from the applicant as his wife had not disclosed these incidents to him.

4. It was submitted that the delegate did not give sufficient weight to evidence of the heightened risk of gender-based violence for Tamil women in eastern Sri Lanka compared to women in Sri Lanka generally. As Tamil women and girls from the militarised east, the female applicants were claimed to face a heightened risk of gender-based violence. Reference was made to supporting country information including a July 2017 report by the International Crisis Group (ICG),[10] May 2020 UK Home Office report,[11] and updated DFAT report (November 2019).[12] It was submitted that, despite having familial support, the applicant’s wife and daughters face a real chance of serious gender-based harm on return to Sri Lanka.

   [10] International Crisis Group, Sri Lanka’s Conflict-Affected Women: Dealing with the Legacy of War, 28 July 2017

   [11] UK Home Office, Country Policy and Information Note – Sri Lanka: Tamil Separatism, May 2020

   [12] DFAT Country Information Report – Sri Lanka, November 2019

5. The IAA made separate decisions for the applicant, his wife and the second applicant. In its decision for the applicant’s wife, the IAA was not satisfied that her new claims relating to past sexual assaults by the SLA amounted to reliable or credible new information. The IAA noted significant inconsistencies in the applicant’s account, which was considered to have evolved over time. The IAA did not accept the applicant had been detained and tortured by the SLA in 2009; abducted and harmed in 2013 by men in a white van; or that the authorities had been seeking his/his family’s whereabouts at any time. This was primarily based on the following issues:

   i.The applicant and his wife were interviewed twice prior to lodgement of their protection visa application regarding their reasons for leaving Sri Lanka and being unable to return: the Enhanced Screening interview in April 2013 and the Arrival interviews in June/July 2013. They provided inconsistent evidence in their Enhanced Screening interviews in relation to the timing of the 2013 abduction and length of it. The applicant’s claimed detention and torture in 2009 was not mentioned by either the applicant or his wife in their Enhanced Screening or Arrival interviews. The IAA noted that the Enhanced Screening interviews took place six days after the applicants’ arrival on Christmas Island and the Arrival interviews took place in two parts more than two months after they arrived. During their Arrival interviews, they were informed of the purpose of the interview and that the information they provided would be kept confidential and not disclosed to Sri Lankan authorities. They were further advised of the importance of providing accurate information and that if different information was subsequently provided that might affect their credibility.

   ii.The IAA did not accept the applicant’s explanations of why he had not disclosed the 2009 incident at his Enhanced Screening or Arrival interviews. This was found to be at odds with his willingness to disclose other claims in his Arrival interview of his 2013 abduction and detention due to suspicion of LTTE links and confidentiality protections being explained to him at the Arrival interview.

   iii.The applicant’s key claim of being under suspicion because of his work-related travel into LTTE controlled areas between 2001 and 2005 and from January 2008 until March 2013 was not supported by country information. The IAA noted that during the protection visa interview it was raised with the applicant that there had been a ceasefire between 2002 and 2005 and that by July 2007 the four named areas were under SLA control. The IAA found the applicant’s subsequent responses to be inconsistent and lack credibility, noting that his signed Statutory Declaration, which clearly indicates those areas to have been under LTTE control in 2008/2009, had been interpreted to him. Based on country information, the IAA did not accept that the applicant travelled into any LTTE controlled areas following his return from [Country 1] in 2008.

   iv.Considering country information, it was accepted that the applicant was likely subject to some roundups or checks by the authorities including when driving through SLA checkpoints. However, the IAA considered his account of being subject to abductions and assaults to lack credibility. Firstly, the IAA did not consider it plausible that on one occasion in December 2009 the applicant would refuse to comply with the SLA’s orders to unload his [vehicle], considering that he had agreed on all other occasions and understood the serious consequences of refusing. The IAA found the applicant’s explanations to the Department during the protection visa interview to be unconvincing. Secondly, there were significant inconsistencies between his oral evidence to the Department, his Statutory Declaration and post-interview submissions regarding the harm he suffered during the 2009 detention and 2013 abduction. Thirdly, the IAA considered the applicant’s account at the protection visa interview of the 2013 abduction to be ‘unconvincing, rehearsed in parts and hesitant in others, requiring significant prompting by the delegate’.

   v.The IAA did not consider it credible that, if the applicant had been suspected of LTTE activities or smuggling weapons, he was not arrested or sent to a rehabilitation camp at the end of the war as so many thousands of LTTE suspects were. It is not credible that if he were under suspicion he would have been able to live and work in the same area since the end of the war with no problems, for a lengthy period.

6. The IAA did not accept the authorities suspected the applicant of having any LTTE links, that he would be imputed with such links or that he was of any adverse interest to the authorities. Based on current country information and its factual findings, the IAA was not satisfied that any of the applicants faced a real chance of harm as Tamils from the Eastern Province. While it was accepted that they would be returning as failed asylum seekers, the IAA found that in their particular circumstances this would not give rise to a real chance or real risk of harm.

7. Regarding their illegal departure, the IAA found based on country information, that the second applicant would not face prosecution under the I&E Act. The IAA accepted that the applicant would likely be charged under the I&E Act, which was considered to be a law of general application, with a likely penalty of a fine ranging between LKR 3,000 to LKR 200,000. It was acknowledged that there was a possibility, depending on their time of arrival, that the applicant could be detained for a few days in an airport holding cell while awaiting appearance before a magistrate. The IAA found that there was no real chance of mistreatment during any brief period of detention on arrival that would amount to serious or significant harm.

8. Regarding the claims of gender-based violence for the female applicants, the IAA considered the submissions and cited country information regarding the treatment of women and sexual violence, particularly perpetrated by the military and other authorities. This included the 2016 ITJP report,[13] July 2017 ICG report;[14] 2017 report of the Special Rapporteur;[15] 2016 and 2020 UK Home Office reports;[16] March 2018 REDRESS report;[17] and a 2018 UN Security council report on conflict related sexual violence.[18]

   [13] International Truth & Justice Project Sri Lanka, Silenced: survivors of torture and sexual violence in 2015, January 2016

   [14] International Crisis Group, Sri Lanka’s Conflict-Affected Women: Dealing with the Legacy of War, 28 July 2017

   [15] UN Human Rights Council Report of the Special Rapporteur on minority issues on her mission to Sri Lanka – note by the

   [16] UK Home Office, Country Information and Guidance – Sri Lanka: Tamil Separatism, May 2016; Country Policy and Information Note – Sri Lanka: Tamil Separatism, May 2020

   [17] REDRESS, Supplement to the International Protocol on the documentation and investigation of sexual violence in conflict: Sri Lanka, March 2018

   [18] UN Security Council, Report of the Secretary General on conflict-related sexual violence, 23 March 2018

9. The IAA noted that the 2016 ITJP report refers to alleged torture and assaults against Tamil women held in custody since the end of the conflict. The REDRESS report refers to widespread sexual violence committed by security forces being well-documented against detainees in the aftermath of the war and appeared to have been a deliberate means of torture to extract information and humiliate and punish person who were presumed to have some LTTE link. In respect of allegations of sexual abuse in Tamils areas in the North, East and Colombo, Human Rights Watch researchers reported the majority of documented cases were victims accused of LTTE connections. The report also referred to the 2016 Special Rapporteur mission that owing to heavy militarisation, surveillance was used as a tool of control and intimidation and former Prevention of Terrorism Act (PTA) detainees, rehabilitees and families or anyone deemed to have had LTTE links and political and human rights activists remained subject to surveillance and intimidation. It noted the extent of this practice had dropped compared to the early post conflict period with some still continuing.

10. The IAA acknowledged that the 2018 UN Security Council report referred to Tamil women in the north-east being the most affected as survivors of conflict related sexual violence and noted that reports continue to surface of assaults by police and military intelligence operatives. The IAA referred to the 2019 DFAT report which noted that violence against women is prevalent and underreported in Sri Lanka, cutting across all ethnic groups and social strata; being most common in domestic settings. Thousands of women in the north and east lost husbands and other family members during the war and some fought or were forcibly recruited and there were credible allegations of sexual violence against female former LTTE members in detention camps and rehabilitation centres. There were reports from women near military bases, particularly single women, reporting sexual harassment by military.

11. While acknowledging the female applicants are Tamil women from the Eastern Province, the IAA found that they did not hold any of the particular characteristics which the reports indicated as giving rise to a risk profile. They would not be returning as a female headed household, former combatants, persons seeking truth or human rights defenders or persons imputed with LTTE links. Further, they would be returning as a family unit, not as single women, and would have the protection of the applicant.

12. The IAA noted country information indicating a decreased military presence overall since the end of the war and that the applicants are not from the Northern Province which continues to have a significant military presence. Given its findings that the applicants were not of adverse interest to the authorities, the IAA did not accept that they would come to the attention of the military, police or authorities. The IAA noted that the applicants’ extended families (including females) continue to live and work in Sri Lanka without any apparent harm.

13. The IAA considered a quote in the DFAT report from a former president in 2017 that Tamil women continue to face sexual exploitation by military and Tamil officials, demanding sexual favours to carry out routine paperwork. The IAA noted that this remark was made in 2017 when the former president was addressing the plight of women who were widowed during the conflict. The IAA noted that the female applicants would have the support of the applicant if they were required to carry out routine paperwork.

14. The IAA noted DFAT’s assessment that women throughout Sri Lanka face a moderate risk of societal discrimination and violence, with sexual harassment on public transport being prevalent. The IAA noted that the applicants’ ‘did not advance any specific claims about this’ and the female applicants did not claim to have been harassed on public transport in the past. The IAA was not satisfied that the female applicants faced a real chance of serious harm while travelling on public transport. The IAA also found on the available evidence that such harassment does not amount to serious harm.

15. In their particular circumstances, the IAA was not satisfied that the female applicants face a real chance of sexual or physical violence from Sri Lankan authorities or anyone else in the foreseeable future if they were to return to the Eastern Province.

    FCFC remittal

16. The FCFC found that the IAA had failed to intellectually engage on the question of whether the second applicant, as a Tamil woman from the Eastern Province, faced a real chance/risk of serious or significant harm whilst travelling on public transport. The FCFC also found the IAA’s findings to be legally unreasonable. The IAA’s finding that the second applicant would be protected by her father on return to Sri Lanka was one which lacked an evident and intelligible justification, particularly as the IAA failed to consider whether or not the applicant would be present with his daughter 100 per cent of the time whilst travelling on public transport. Further, the IAA’s reasoning that the lack of any previous sexual harassment while travelling on public transport was relevant to an assessment of the future risk of such harm was legally unreasonable and illogical given that the second applicant was only [age] years old at the time of her departure from Sri Lanka.

    Tribunal review

    Pre-hearing evidence

17. On 9 June 2025 RAILS provided legal submissions together with the following additional documents:

    i.Statutory Declaration of the second applicant dated 9 June 2025

    ii.Statutory Declaration of [Wife A] dated 9 June 2025

    iii.Statutory Declaration of [Wife A] dated 12 June 2020

18. The Statutory Declaration of the applicant dated 18 April 2017 and RAILS’ post-interview submissions to the Department dated 6 September 2017 were also submitted to the Tribunal.

    RAILS’ submissions

19. RAILS’ submissions primarily address the second applicant’s claims. With respect to the applicant, RAILS state that he continues to rely on the claims as outlined in his 2017 Statutory Declaration and the post-interview submissions (September 2017).

20. With respect to the second applicant RAILS submits that she faces a real chance of serious harm in the form of significant physical harassment or ill-treatment for reasons of her membership of the following particular social groups: ‘Sri Lankan women and girls’; ‘Tamil Sri Lankan women and girls’; ‘Tamil Sri Lankan women and girls from the Eastern Province’;  ‘Failed female Tamil asylum seekers who departed Sri Lanka illegally’; and ‘Tamil women and girls who have become Westernised’. It was further submitted that the second applicant faces a real risk of significant harm in the form of cruel or inhuman treatment or punishment or degrading treatment or punishment.

21. RAILS refer to a range of country information regarding gender-based violence in Sri Lanka. A 2017 report by the United Nations Population Fund (UNFPA report)[19] is claimed to state that 90 per cent of women in Sri Lanka had experienced sexual harassment on public buses and trains. Reference is made to statements in the 2024 DFAT report about the prevalence of sexual harassment and sexual violence (including sexual abuse) toward women, particularly on public transport. According to a 2019 survey, one in four Sri Lankan women had experienced physical and/or sexual violence since the age of 15. The prevalence has reportedly increased between 2022/2023 with underage (and often incestuous) pregnancies a growing concern.[20] It is likely that the true prevalence is higher due to underreporting. According to a 2021 report by Amnesty International, the Sri Lankan police recorded a total of 142 rapes and 42 cases of ‘serious sexual abuse’ against children in the first 15 days of 2020.[21] According to Freedom House, rape of women and children and domestic violence remain serious problems, and perpetrators often act with impunity.[22]

    [19] United Nations Population Fund, Report on Sexual Harassment in Public Transportation in Sri Lanka, December 2018

    [20] Department of Foreign Affairs and Trade, Country Information Report: Sri Lanka, 2 May 2024

    [21] Amnesty International, Amnesty International Report 2020/21: The state of the world’s human rights, April 2021

    [22] Freedom House, Freedom in the World 2024: Sri Lanka

22. RAILS submit that as a Tamil woman from the Eastern Province, the second applicant will face a heightened risk of sexual harassment and sexual abuse compared to women in Sri Lanka generally. The Sri Lankan civil war saw widespread, state-perpetrated sexual abuse of Tamil women in the North and East by the military. The continued militarisation of these regions, coupled with a prevailing culture of impunity, is stated to have enabled ongoing sexual harassment and sexual abuse against Tamil women.

23. Reference is made to the July 2017 ICG report which indicates that women’s physical insecurity in conflict-affected areas has grown significantly, with a higher prevalence in the north and east as a consequence of armed conflict and continued militarisation. Gender-based and sexual violence is reportedly very high in both the Northern and Eastern Provinces, although there is little detailed documentation. The number of recorded cases likely represents only ‘the tip of the iceberg’.[23]

    [23] International Crisis Group, Sri Lanka’s Conflict-Affected Women: Dealing with the Legacy of War, 28 July 2017

1. According to one source cited in a May 2022 report by the Canadian Immigration and Refugee Board (IRB), on a day-to-day level Tamil women experience discrimination, sexual harassment, and unwanted attention and surveillance from Sri Lankan authorities and ‘unattached’ single Tamil women often experience sexual harassment.[24] The US Department of State reported that sexual harassment was common. Women from the north, mostly from minority communities, reported military officials at security checkpoints targeted women for unnecessary body searches. Women from the north and east, mostly from minority communities, also reported male security officers often questioned women in their homes without family members present.[25]

   [24] Immigration and Refugee Board of Canada, Sri Lanka: Situation and treatment of Tamils, including

   [25] US Department of State, 2023 Country Reports on Human Rights Practices: Sri Lanka, April 2024

2. RAILS submit that the second applicant would face further risks as a teenage girl who has lived in Australia from [age]. Her Australian accent and mannerisms are likely to mark her as an outsider, making her more visible and potentially more stigmatised, particularly in conservative or patriarchal communities. She is said to be ‘effectively westernised with little to no understanding of local customs, social expectations, or protective behaviours necessary to navigate life in Sri Lanka safely.’ She will face significant additional barriers and discrimination as a failed Tamil asylum seeker who has spent the majority of her life in Australia. A forced return to Sri Lanka would constitute a ‘profound disruption to her life, effectively amounting to deportation to a country with which she has no meaningful connection, no functional support network, and minimal cultural familiarity. She is unfamiliar with the cultural context and social norms in Sri Lanka and is unable to read or write in Tamil, which will severely hinder her ability to continue her education and capacity to reintegrate into Sri Lankan society. These challenges are likely to have a profound and detrimental effect on her mental health and overall wellbeing.

3. An August 2024 IRB report was referenced regarding the treatment of Tamil failed asylum seekers. This is stated to indicate that those from the north and east of Sri Lanka are more likely to be arrested and detained under the PTA on return. Returning failed asylum seekers and people who exited the country without the required documentation and were released after interrogation or on bail, may face further questioning, surveillance, and harassment by security agencies following their release.[26]

   [26] Immigration and Refugee Board of Canada, LKA201968.E: Sri Lanka: Situation and treatment by authorities of returnees, including failed asylum seekers and family members of persons who have left Sri Lanka and claimed refugee status; treatment of returnees upon arrival at international airports, including failed asylum seekers and people who exited the country without the required documentation (2022-August 2024)

4. RAILS submit that, in accordance with Departmental guidelines and the UN Convention on the Rights of the Child (CRC), the Tribunal should take account of the ‘best interests of the child’ as a primary consideration and give ‘appropriate weight’ to certain articles of the CRC which refer to the importance of preserving the family unit, and the child’s right to know and be cared for by their parents.

   Statutory Declaration of the second applicant: 9 June 2025

5. Relevant information from this document is outlined below:

   i.She has no memories of living in Sri Lanka as she left when she was a young child. Her knowledge of the country comes from her parents and grandparents and social media. She has seen videos on social media relating to the Sri Lankan civil war and posts on [Social media 1] about girls and women in Sri Lanka being physically and sexually harmed. This makes her feel scared and anxious.

   ii.Recently her mother told her that she had been sexually abused by the SLA while they were living in Sri Lanka. She fears that something like this could happen to her and her sister if they return. Her maternal grandparents have told her that soldiers still patrol areas in the Eastern Province, such as Ampara. They visit houses and disturb people. She understands that people try to hide in their homes, but the military forcibly enter and take what they want.      

   iii.Her mother told her that women must be very careful when travelling on public transport or in crowded places, especially at night, as some men use this as an opportunity to get close to women and do whatever they want. They can stare at you or touch you even if it is unwanted. Her father could not be with her all the time as he would have to work. Even if he was present, he may not be able to protect her. She fears that she will be subject to sexual abuse and/or harassment.

   iv.She fears that she will be more of a target because she is ‘different’. She has grown up in Australia and does not ‘know everything about the Tamil culture’. She fears that her ‘time in Australia as a failed asylum seeker’ would make her a target. She speaks ‘a little Tamil’ and cannot read or write in Tamil. She has no knowledge of Sinhalese. She is not sure how she could attend school or find employment in Sri Lanka.   

   v.She doesn’t think she would feel safe anywhere in Sri Lanka as a young Tamil woman. She would have no family support outside the Eastern Province. Based on what she has been told by her parents and seen on social media, the Sri Lankan authorities would not protect her. The authorities are corrupt and part of the problem.

   Statutory Declaration of [Wife A]: 9 June 2025

6. Relevant information from this document is outlined below:

   i.She refers to her Statutory Declaration dated 12 June 2020 which details the sexual abuse she experienced in Sri Lanka. It has been very difficult for her to speak of her experiences. Tamil women are discouraged from speaking of these things due to stigma and the fear of being shamed or blamed. Her greatest concern is the safety of her daughters. She cannot bear the thought of them experiencing what she experienced.

   ii.In addition to the type of sexual abuse she experienced, women and girls in Sri Lanka face a risk of sexual harassment, including unwanted and inappropriate touching, particularly while travelling on public buses and trains. She often experienced this while travelling by bus in Sri Lanka. Her daughters would even face a risk of sexual harassment while at school. It would be obvious that her daughters are Tamil as people in Sri Lanka can generally recognise a person’s ethnicity. She fears that she and her husband would be unable to protect them from this harm if they are forced to return to Sri Lanka. 

   iii.As young Tamil girls who have grown up in Australia, her daughters would be noticed as different, particularly from the way they speak Tamil. This would increase their vulnerability in Sri Lanka.

   Statutory Declaration of [Wife A]: 12 June 2020

7. This document was submitted to the IAA for the purposes of the second review. At that time, its contents were requested to be kept confidential from the applicant. Relevant information from this document is outlined below:

   i.She is from [Town 2], Ampara District. Her parents and [married siblings] continue to live in [Town 2]. Following her marriage to the applicant in May 2008, she moved in June 2008 to live in her mother-in-law’s house.

   ii.Between June/July 2008 and June 2009, while living at her mother-in-law’s house, she was raped on around 15 occasions by different SLA officers. She has not previously spoken of these incidents because she feared being ridiculed and shamed. She has now decided to disclose this information because she fears for her daughters’ safety in Sri Lanka.

   iii.While she lived with her mother-in-law, her husband was often away for work. Her husband was working in LTTE-controlled [areas]. This caused the SLA to suspect him of transporting weapons for the LTTE. From late June 2008, SLA officers would come to the house looking for her husband. Seven or eight officers waited outside but only one came inside the house each time. Sometimes they came in the morning and evening of the same day. The officers took her to a separate room, away from her mother-in-law, where she was raped. Sometimes they tied her mother-in-law’s hands and pushed her. The officers asked her and her mother-in-law about the applicant’s location.

   iv.She fell pregnant in 2008 and thinks this was possibly a result of the rapes. She miscarried in October, when she was around two-months pregnant. She did not tell her husband about the pregnancy. [In] November 2009, SLA officers came to the house on several occasions and tried to rape her. She was able to deter [them].

   v.When she around [pregnant] with the second applicant she was taken to a sports ground, together with around 20 to 25 women from her area. They targeted women who had family members that travelled elsewhere for work. The SLA officers kept her separate to the other women because of their suspicions of her husband. They kept asking about her husband’s location. She was released with assistance of a relative of her husband and her mother-in-law.

   vi.In January 2013 men in a white van came to her mother-in-law’s home. She thinks they were plain-clothed SLA officers. Her husband was not at home at the time. They showed a list of names to her mother-in-law which included her husband’s name and asked if he needed a job. Following this incident, they left for her parents’ house and made plans to leave Sri Lanka.

   vii.Following their departure from Sri Lanka, unknown men have visited her mother-in-law’s home many times looking for her and her husband. They physically assaulted her mother-in-law while she was walking on the street, asking where she was hiding her son and daughter-in-law. Her mother-in-law sold the house about one year after they departed Sri Lanka and now lives in a different area of Batticaloa.

   viii.Following their departure from Sri Lanka, these men then visited her parents’ house about three times. They did not state who they were but showed her parents photos of her and her husband. The men tied her father to a coconut tree and beat him, causing his hip to break. The men last visited her parents in around May 2013.

   ix.She fears that the same SLA officers who raped her will harm her daughters. They would now be middle-aged. She fears they will come looking for her and her husband if they return to Sri Lanka. The SLA is still present in Batticaloa, and her parents’ house is very close to a SLA camp.     

   Oral evidence at Tribunal hearing

8. The Tribunal took oral evidence separately from the applicant. Given the second applicant’s age the Tribunal took her evidence in the presence of her father. Both applicants were present when [Wife A] provided her witness evidence. The applicants’ representative confirmed at the outset of the hearing that the confidentiality issues previously raised with the IAA (second review) and on appeal were no longer relevant.

9. The applicant stated that his mother passed away [in] October 2020 while she was living with his brother in Batticaloa. He explained that his mother was assaulted by unknown people who were looking for him and his wife. He indicated this was connected to the issues he and his wife experienced while in Sri Lanka. Asked why people would be looking for him and his wife in 2020, the applicant stated that he has no idea.

10. The applicant stated that his mother was hospitalised for a few months after the assault before passing away. He came to know of the assault via his [brother] shortly after his mother’s death. His brothers were very angry and blame him for her death. They threatened to kill him if he returns. Due to this, he no longer speaks with his brothers. I raised with the applicant that this had not been previously raised with the Tribunal. He stated that he did not mention it previously because he was not interviewed following the protection visa interview with the Department. Asked whether he raised this with his representative, he stated no but believes his wife told their lawyer.

11. His [sisters] live in Batticaloa. They are [married] and have [children]. He also has [brothers] living in Batticaloa. [They] are married and have [children]. One works as [an Occupation 3] and the other as [an Occupation 1]. He has not been in contact with his brothers since his mother’s death. His wife’s parents and [siblings] continue to reside in Ampara.

12. Regarding the applicant’s claims, I noted that these have been considered by the Department and twice by the IAA and did not form the basis of either of the Court remittals. I discussed with the applicant that while I have not made up my mind, based on the available evidence, I may not be satisfied that he would have a profile of adverse interest to the Sri Lankan authorities for reasons of any imputed LTTE connections, as a Tamil man from the Eastern Province, and/or as a returned failed asylum seeker who departed illegally. The applicant was given the opportunity to raise any further information or respond to the adverse findings made in previous decisions. He responded that he has nothing to add and raised concerns about the safety of his daughters in Sri Lanka.

13. Asked whether his nieces in Sri Lanka have experienced any problems due to their gender, the applicant stated that he assumes they have not, but their situation is different to his daughters. Unlike him, his siblings don’t have problems with the authorities. His children could be targeted because of his issues.

14. Regarding the claim in her Statutory Declaration about soldiers forcing their way into people’s homes in Ampara, the second applicant claimed that this has happened to her maternal grandparents, but she doesn’t know when. She confirmed that she speaks with her maternal grandparents and recalled that she last spoke with them about one month ago.

15. Asked why she thinks her time in Australia as a failed asylum seeker would make her a target on return to Sri Lanka, the second applicant stated that she would stand out because she has grown up in Australia and would speak differently. She added that returning to Sri Lanka would adversely affect her future opportunities. She is not close to her extended family in Sri Lanka and would not have the same support network that she has in Australia.

16. In her witness evidence, [Wife A] stated that her parents own farmland in [Ampara]. She does not speak often to her parents because their house is close to a SLA camp and they worry that their communications are being monitored. She last spoke with her parents around one month ago. She claimed that the SLA still ask about her whereabouts because of the incidents of sexual assault she experienced while living with her mother-in-law in Batticaloa.

17. One of her sisters lives in Colombo; another sister lives in [Country 2] and two sisters continue to reside in Ampara. Her sisters who reside in Ampara have [children], including two girls. Asked whether her sisters or nieces have experienced any problems because of their gender, she stated that she doesn’t know because in their culture women don’t disclose those things.

18. Asked about the claim in her recent Statutory Declaration that she often experienced sexual harassment while travelling by bus in Sri Lanka, [Wife A] stated that SLA officers and Criminal Investigation Department (CID) officers touched her in an inappropriate manner while travelling on the bus between Ampara and Batticaloa. Regarding her claim that the second applicant faces a risk of sexual harassment at school in Sri Lanka, the applicant stated that other children may sexually harass her daughter because she would be identified as different to the other students.

19. I discussed with the applicants several concerns and provided them with an opportunity to comment. The applicants declined to comment on some of the concerns. Relevant responses are outlined below. 

20. Regarding the applicant’s claim, first raised in his oral evidence to the Tribunal, that his mother had been assaulted in late 2020 by persons seeking their whereabouts, I noted that this significant claim had not been raised in the pre-hearing written evidence. [Wife A] responded that they had no earlier opportunity to raise this. I noted that they are legally represented and prepared written statements in June 2025 with assistance of RAILS. The applicant stated that he had nothing to add.

21. Regarding the second applicant’s claims to fear sexual harassment or abuse from the state or non-state actors, I raised that I may not be satisfied in her particular circumstances that she would face a real chance or real risk of such harm considering the following:

    i.I may not accept that the applicant has any profile of adverse interest to the authorities, including due to actual or perceived LTTE links, that would cause problems for the second applicant. The second applicant responded that her father did not work for the LTTE but was suspected of doing so because he travelled into LTTE-controlled areas.

    ii.Country information indicates that some Tamil women face a risk of gender-based harm, such as female heads of household or single women without family support; war widows; activists and former LTTE combatants or those with LTTE links. I may not be satisfied that the second applicant falls within any of these risk profiles.

    iii.Country information indicates that military presence in the Eastern Province is smaller compared to the north and its presence is limited to military bases and roadside checkpoints. The most recent DFAT report states that while sexual harassment of women by military personnel was known to occur in the north in the immediate post-war period, it is now rare.

    iv.While country information supports the prevalence of gender-based violence throughout Sri Lanka, reports indicate that it is most likely to occur in a domestic setting, typically at the hands of an intimate partner. I raised that this does not appear to be relevant to the second applicant, who is single and would be residing with her parents. The second applicant responded that she can’t say anything about that as she is not in a relationship.

    v.Regarding the risk of sexual harassment or abuse while travelling on public transport, I discussed with the applicants that the UNFPF report does not state that 90 per cent of all women in Sri Lanka have been sexually harassed or abused while travelling on public transport. Rather, it refers to 90 per cent of survey respondents which comprised 2,500 females aged 15 to 35 from all nine provinces of Sri Lanka.

    vi.I noted that the UNFPF report covers a range of conduct, some of which may not necessarily amount to serious or significant harm; refers to the difficulty in characterising some of the behaviours as sexual harassment due to the crowded conditions on public transport; and states that sexual harassment most frequently occurred when women sat near males on long distance bus travel. I raised that the second applicant may be able to take precautions to minimise a risk of harm, for example travelling with a male companion if there was a need to undertake long distance bus travel. [Wife A] responded that she experienced sexual harassment and does not want that to occur to her daughters.

    vii.Regarding the claim that the second applicant would be targeted because she is westernised, I discussed with the applicants that I may not be satisfied that this would sufficiently elevate the chance or risk of sexual violence from state or non-state actors. I raised that many Sri Lankans have spent time overseas and returned after seeking asylum. According to information from the 2024 DFAT report, based on the lived experience of recent failed asylum seekers from Batticaloa, there was no evidence of official harassment or threats to their security, nor evidence of societal discrimination after returning to their communities.

1. Regarding difficulties for the second applicant in re-integrating into Sri Lankan society, I acknowledged that given her extended absence from Sri Lanka she would likely experience personal challenges on return. I explained the meaning of persecution and significant harm and that I may not be satisfied that such challenges would satisfy those legal tests. Regarding RAILS’ pre-hearing submissions about considerations under the CRC, I explained that these considerations are not relevant to my assessment of protection obligations.

2. Asked whether there was anything further they wished to tell me, the applicant stated that they could have paid money to obtain false documents to support their claims, but they did not do so.

3. The applicants’ representative declined to make oral submissions but requested additional time to provide further written submissions. I allowed one week for further submissions.

   Post-hearing evidence

4. In a submission dated 23 June 2025, RAILS address various concerns raised by the Tribunal at the hearing, as outlined below, and request the Tribunal to consider referring this case for possible Ministerial intervention if not satisfied that the applicants engage protection obligations.

5. Regarding the second applicant’s risk of gender-based harm, RAILS re-assert that she may be perceived as having LTTE links because of her father’s perceived association with the LTTE. Regarding the decreased military presence in the Eastern Province, RAILS submit that the absence of visible street patrols during DFAT’s visit does not preclude ongoing sexual harassment of Tamil women. Information previously raised from the 2023 US State Department report was cited in support of ongoing sexual harassment and questioning of Tamil women by the military. DFAT’s assessment that sexual harassment in the Northern Province is now rare does not exclude the possibility of such harm occurring.

6. Regarding the Tribunal’s questioning of gender-based harm experienced by the applicant and his wife’s female relatives in the Eastern Province, RAILS submit that this is unlikely to provide a reliable indication of its prevalence given the well-documented barriers to disclosure of such incidents by women. It is plausible that the applicant and his wife would be unaware of whether their extended family had experienced such harm.

7. Regarding concerns raised by the Tribunal regarding the UNFPF report, RAILS submits that although the data in that report is based on the survey population of 2,500 women, it provides a credible insight into the systematic nature of sexual harassment on public transport in Sri Lanka. While not all of the conduct described in the report is likely to amount to serious or significant harm, RAILS notes that several behaviours clearly would. RAILS submit that the reference in the 2024 DFAT report to the prevalence of sexual harassment and abuse of women on public transport supports the findings in the UNPF report. In regard to the possibility of the second applicant taking steps to avoid harm while travelling on public transport, RAILS submits that she may be willing but unable to take reasonable steps to do so.   

8. Regarding the late disclosure of the claim raised by the applicant at the hearing that his mother had been assaulted in late 2020 by persons asking about him and his wife, RAILS advises that the applicant mistakenly believed this information had previously been raised with his representative. It is submitted that the applicant’s failure to previously disclose this information is a consequence of his limited understanding of the immigration process and relevant procedural requirements. The applicant maintains his claims that he would continue to be of adverse interest to the Sri Lankan authorities due to perceived LTTE links.

9. Regarding the applicant’s oral evidence to the Tribunal that he could have obtained fraudulent documents to support his application, RAILS state that the applicant was attempting to convey that, while it is easy to obtain such documentation in Sri Lanka because of government corruption, he chose not to do so which supports his honesty. The applicant maintains that he was and is unable to approach the Sri Lankan authorities due to his fear of harm.

10. In support of the request for referral to the Minister, RAILS submit that the applicants’ case involves several unique or exceptional circumstances and raises Australia's obligations under the International Covenant on Civil and Political Rights and CRC relating to the importance of family unity and bests interest of the child.

11. Given the applicant’s youngest daughter is an Australian citizen, if the applicants were required to return to Sri Lanka, this would result in serious, ongoing and irreversible harm to her and their family unit as it is probable that she would be compelled to return to Sri Lanka with her family. Having lived entirely in Australia, she has no first-hand experience of life in Sri Lanka and no meaningful connection to Sri Lankan culture or society. She cannot read or write in Tamil which would severely limit her ability to access formal education in Sri Lanka; undermine her immediate development and severely hinder her ability to reintegrate into Sri Lankan society. These challenges are likely to have a serious and lasting negative impact on her overall wellbeing and mental health. If she were to remain in Australia without her immediate family, such a separation could have serious consequences for her development and well-being.

12. With respect to the second applicant, there are submitted to be compassionate circumstances regarding her age and/or health and/or psychological state that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship. The second applicant found the process of preparing for Tribunal hearing and discussing her fears of persecution very challenging such that RAILS have referred her to a specialist service for mental health support. The second applicant has resided in Australia for the past 13 years and has no meaningful connection or familiarity with Sri Lanka. Her ability to continue her education in Sri Lanka will be impacted due to her inability to read and write in Tamil. These challenges are likely to have a serious and lasting negative impact on her overall wellbeing and mental health.

    FINDINGS AND ASSESSMENT

13. The issue in this case is whether either of the applicants engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) of the Act. For the following reasons, I have concluded that the decision under review should be affirmed.

    Criteria for protection visa

14. 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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Relevant provisions of the Act are extracted in the attachment to this decision.

15. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the Department’s ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, 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.

    Factual findings

16. In determining whether an applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I acknowledge that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[27] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[28]

    [27] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.

    [28] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.

17. As discussed above, I accept that the applicants are of Tamil ethnicity and previously resided in Batticaloa, Eastern Province of Sri Lanka. I accept that they departed Sri Lanka illegally and would be returning as failed asylum seekers. I accept that, given the second applicant was only [age] years old at the time of her departure, she has no familiarity with life in Sri Lanka and cannot read or write in Tamil. I accept that the applicants have extended family residing in Batticaloa and Ampara, Eastern Province. I find Batticaloa or the Eastern Province more broadly to be their ‘home area’ or place of likely return in their particular circumstances.

18. I have considered the applicant’s claims relating to adverse interest from the Sri Lankan authorities for reasons of perceived LTTE links. As outlined above, these claims have been considered by the Department and twice by the IAA and did not form the basis of either of the Court remittals. No additional written evidence in regard to these claims was submitted to the Tribunal prior to hearing. The applicant was given the opportunity at the hearing to provide further oral evidence in support of these claims, including in response to the Tribunal raising concerns as to whether he would be of any adverse interest to the authorities. Aside from raising a new claim that his mother had been assaulted in around August 2020 by persons looking for him and his wife, he stated that he had nothing to add.

19. As discussed above, my review does not encompass [Wife A’s] application. The decision of the second IAA for [Wife A] was upheld by the FCFC and on appeal by the Federal Court. There was found to be no jurisdictional error in the IAA’s reasons, which included a finding that [Wife A’s] claims of rape and sexual assault by the SLA were not reliable or credible. However, I have considered her Statutory Declarations (June 2020 and June 2025) as submitted to the Tribunal, and her witness evidence to the Tribunal in so far as they are relevant to the applicants’ claims.

20. For the below reasons I have significant concerns with the applicant’s claims. As did the IAA, I accept that between 2001 and March 2013 (other than a period between 2005 and January 2008 in which he resided in [Country 1]), the applicant worked as [an Occupation 1 performing various job tasks] between his local area in Batticaloa and the areas of [Villages 1–4]. As outlined in the IAA decisions, country information indicates that the applicant was likely subject to routine checks and questioning while passing through SLA checkpoints. I also accept as credible that, as a Tamil male residing in the Eastern Province during the civil war, the applicant from time to time was subject to routine questioning or checks by the authorities. As discussed in the IAA decisions, such experiences were common during the conflict. However, based on the available evidence, I do not accept that the applicant was suspected of LTTE links of any kind while in Sri Lanka, including smuggling weapons or other items for the LTTE.

21. As raised during the protection visa interview and in both IAA decisions there is a significant inconsistency between the applicant’s claims and reliable country information in relation to LTTE control over areas in the Eastern Province during the relevant period. There was a ceasefire between the LTTE and Sri Lankan authorities between 2002 and 2005 (covering the majority of the period prior to the applicant’s departure for [Country 1]). By the time of the applicant’s return to Sri Lanka in early 2008, Batticaloa District and the Eastern Province more broadly were under SLA control.[29] I therefore do not consider it plausible that the applicant was travelling between LTTE and SLA controlled areas in Batticaloa District or the Eastern Province following his return from [Country 1]. Further, I do not consider it plausible that he was perceived to be affiliated with the LTTE following his return from [Country 1] due to any previous travel between LTTE and SLA controlled areas. I therefore do not accept that, following his return from [Country 1], the authorities came to his home to question him, his wife or his mother about the applicant’s involvement in smuggling weapons for the LTTE or any other form of LTTE involvement. It follows that I do not accept that during any such visits, the applicant’s wife or mother were harmed by the authorities. As such, I do not accept that the applicant’s wife was subjected to any physical harm from Sri Lankan authorities in connection with his perceived LTTE links.

    [29] Department of Foreign Affairs and Trade, Country Information Report: Sri Lanka, 2 May 2024

22. I do not accept the claimed incident in December 2009 to be credible. Considering the applicant’s evidence that he frequently travelled through SLA checkpoints in the course of his work and complied with routine checks of his [vehicle], I do not consider it plausible that on this particular occasion he would refuse to comply. As outlined above, this significant incident was not raised by the applicant or his wife in their Enhanced Screening or Arrival interviews. I have not placed any significant weight on the omission at the Enhanced Screening interview given the timing and nature of these interviews. However, as noted in the second IAA decision, the Arrival interviews were conducted in two parts several months after the applicant’s arrival, with the assistance of a Tamil interpreter. The applicant was informed about the purpose, confidentiality protections and importance of providing accurate information. The applicant’s explanation to the Department for this omission is not convincing given he disclosed a claimed abduction in January 2013 by the Sri Lankan authorities. I find the applicant’s failure to mention this incident in his Arrival interview to significantly undermine this claim.

23. Given my findings above, I do not consider it credible that men in a white van, affiliated with the authorities, came to the applicant’s house [in] January 2013 searching for him; that he was abducted by such men [three days later]; or that following his release they came again to his house in around February 2013 searching for him. These incidents are clearly claimed to be connected to the authorities’ suspicion that the applicant was smuggling weapons or otherwise involved with the LTTE which I do not accept to be credible. Further, I do not consider it plausible that if the authorities genuinely suspected the applicant of LTTE involvement they would release him one day after he was abducted in late January 2013. As raised in the second IAA decision, persons genuinely suspected of LTTE links in the aftermath of the civil war were commonly arrested, detained under the PTA or placed into rehabilitation camps. The lack of any such action being taken against the applicant between May 2009 and April 2013 further undermines his claims.            

24. It follows that I do not accept that the applicant was of any adverse interest to the authorities at the time of his departure from Sri Lanka. He has not claimed to have been involved in any activities following his departure that would cause him to be of adverse interest to the authorities. I therefore do not accept that, at any time since his departure, the authorities have questioned, threatened or harmed the applicant’s mother or his parents-in-law in connection with his activities. Given my findings above, I do not accept that the authorities have any adverse interest in the applicant’s wife. As such, I do not accept that the authorities have questioned her family in Ampara about her whereabouts or are monitoring her parents’ communications. While I accept that her parents reside in close proximity to a SLA base, considering my factual findings together with the country information discussed below, I do not accept that SLA officers have forced their way into her parents’ home.

25. I have significant concerns with the applicant’s claim, first raised in his oral evidence to the Tribunal, that his mother was assaulted in around August 2020 by persons asking about him and his wife, which led to her death two months later. Considering my findings above, I do not accept this had any connection with the applicant’s perceived LTTE links or claimed sexual assaults on his wife. I find the late disclosure of this very significant claim to further undermine its credibility. I have considered the applicant’s explanation, that he mistakenly believed the information had been relayed to his representative. However, given the significance of this information and in circumstances where the applicants and [Wife A] prepared pre-hearing evidence with the assistance of their representative, I do not find this explanation to be convincing. I therefore do not accept the applicant’s claim to the Tribunal that he has ceased to have contact with his brothers because of this incident or that they have threatened to harm him if he returns.

26. [Wife A] raised in her June 2025 Statutory Declaration that she often experienced sexual harassment while travelling by bus in the Eastern Province. In her oral evidence to the Tribunal, she referred to being touched inappropriately by SLA or CID officers while travelling by bus between Ampara and Batticaloa. I do not consider it necessary to make a finding on these claims. While [Wife A] did not specify when this conduct occurred, based on the available evidence I find that it was either during the conflict period or in the few years after the conflict ceased. The second applicant would be returning to Sri Lanka more than 16 years after the end of the conflict, in a significantly changed security environment, as further discussed below.

    Refugee and complementary protection assessment

    Tamil ethnicity and imputed LTTE links

27. Given my findings above and relevant country information, I am not satisfied there is a real chance, being a possibility that is not remote or far-fetched,[30] that the applicants will face harm on return to the Eastern Province for reasons of their Tamil ethnicity, imputed LTTE links and/or former residence in the Eastern Province. I acknowledge, as did the delegate and IAA, that during the civil war covering the period from 1983 until May 2009, many Tamils were monitored, harassed, arrested and/or detained by security forces, particularly in the north-east. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity and emergency regulations were, at times, applied in a discriminatory manner.[31]

    [30] Chan Yee Kin v MIEA [1989] HCA 62

    [31] Department of Foreign Affairs and Trade, Country Information Report: Sri Lanka, 2 May 2024; UK Home Office, Country policy and information note: Tamil separatism, Sri Lanka, April 2023 (updated 4 March 2025)

28. However, the security situation in the north and east has improved significantly in the 16 years since the end of the conflict. Tamil ethnicity, in conjunction with residence in areas formerly controlled by the LTTE, in itself no longer give rise to imputed LTTE association.[32]  According to DFAT, certain Tamils in the north and east face a risk of monitoring, arrest and detention, namely those promoting Tamil statehood or glorifying the LTTE; those engaged in politically sensitive issues related to human rights or the war; and former LTTE members. However, DFAT assesses that ordinary Tamils, including those living in the north-east, face a low risk of monitoring, harassment, arrest and detention.[33] Based on my accepted findings, I am not satisfied that either of the applicants face a real chance of harm from the Sri Lankan authorities in the reasonably foreseeable future. While there are reports of discrimination toward Tamils, DFAT assesses that Tamils are at low risk of official discrimination on ethnic grounds, including in public sector employment.[34]

    [32] Department of Foreign Affairs and Trade, Country Information Report: Sri Lanka, 2 May 2024; UK Home Office, Country policy and information note: Tamil separatism, Sri Lanka, April 2023 (updated 4 March 2025)

    [33] Department of Foreign Affairs and Trade, Country Information Report: Sri Lanka, 2 May 2024

    [34] Department of Foreign Affairs and Trade, Country Information Report: Sri Lanka, 2 May 2024

118.   [Wife A] claimed in her 2020 Statutory Declaration that the same SLA officers who sexually assaulted her could harm the second applicant. Given my findings above, I find there to be no real chance or risk of this occurring.

119.   Based on the available evidence, I am not satisfied there is a real chance or real risk that, in the reasonably foreseeable future, the second applicant will be subjected to sexual harassment or abuse from the Sri Lankan authorities if she returns to the Eastern Province.

Harm from non-state actors

120.   I acknowledge credible reports, as outlined above, that gender-based violence against women is prevalent in Sri Lanka and likely underreported. These sources indicate that this occurs most commonly in a domestic setting at the hands of an intimate partner. The second applicant confirmed to the Tribunal that she is not in a relationship and would be residing with her parents on return. In the second applicant’s particular circumstances, I am not satisfied that she faces a real chance or risk of gender-based violence in a domestic setting in the reasonably foreseeable future.

121.   Regarding the claims that the second applicant will face a real chance or risk of sexual harassment or abuse while travelling on public transport, I have carefully considered the information in the UNFPF report. As noted above this is based on a survey of 2,500 females between 15 and 35 years old from all nine provinces and the three main ethnic groups (Sinhala, Tamil and Muslim). Seventy-five of those surveyed were from the applicants’ home area of Batticaloa.[53]

[53] United Nations Population Fund, Report on Sexual Harassment in Public Transportation in Sri Lanka, December 2018

122.   The study found that 90 per cent of those surveyed had experienced sexual harassment at least once in their lifetime while travelling on public buses and trains in Sri Lanka. The report notes that sexual harassment and assault in public transport is a ‘common occurrence in almost all societies in the world’. The report defines ‘sexual harassment’ broadly as any form of ‘unwanted or unwelcome sexual attention’ and notes that the types of harassment can ‘vary from relatively mild to extremely serious in nature’. In almost all cases, the perpetrator was a male co-passenger, bus driver or conductor. The report notes that it is ‘somewhat difficult to categorize certain acts as sexual harassment mainly due to the physical constraints and difficulties when travelling in overcrowded buses and trains’. The most frequently affected category of victims were females who sat near males on long distance buses. The report indicates there to be a higher occurrence of ‘unpleasant incidents with more gravity’ in long distance buses.[54]

[54] United Nations Population Fund, Report on Sexual Harassment in Public Transportation in Sri Lanka, December 2018

123.   The types of sexual harassment experienced are set out in a table which describes 30 types of conduct and their frequency (by total number and percentage). The most frequent is ‘Deliberate touching of any part of the body’ (experienced by 73.52 per cent of respondents), followed by ‘Unwanted crowding of personal space (e.g. excessive closeness’)’ (60 per cent); ‘Improper seating etiquette (deliberately occupying more space than necessary for seating’ (52.48 per cent) and ‘Rubbing genitalia against another’s body’ (52.08 per cent).     

124.   Other types of conduct include: ‘Asking for the contact number’; ‘Trampling the foot deliberately’; ‘Fixated gaze on body parts’; ‘Suggestive/lascivious looks’; ‘Attempts at conversation’; ‘Throwing pieces of paper with contact numbers asking to contact them’; ‘Bus conductor when urging people to move forward places hand on shoulder/back deliberately’; ‘Commenting on attire and body’; ‘Flirting’; ‘Hooting/whistling’; ‘Unpleasant sounds/words’; ‘Cracking distasteful/crude jokes’; ‘Kissing sounds’; ‘Driver deliberately using brakes, making passengers lurch forward’; ‘Indecent exposure/exhibitionism (exposing genitalia)’; ‘Threats of a sexual nature’; ‘Simulating sexual acts’ and ‘Showing sexually explicit photographs’.[55]

[55] United Nations Population Fund, Report on Sexual Harassment in Public Transportation in Sri Lanka, December 2018

125.   RAILS submit that some of these types of conduct clearly amount to serious or significant harm, including ‘Deliberate touching of any part of the body’; ‘Rubbing genitalia against another’s body’ and ‘Indecent exposure/exhibitionism (exposing genitalia)’.

126.   RAILS submit that this report, in conjunction with DFAT’s acknowledgement that ‘sexual harassment and sexual violence (including sexual abuse) toward women was prevalent, particularly on public transport’, supports a finding that the second applicant would face a real chance of such harm. By way of context, this comment follows information regarding the prevalence of gender-based violence more broadly in Sri Lanka, which most commonly occurs in a domestic setting, at the hands of an intimate partner. It is then followed by a statement that its prevalence ‘has reportedly increased in the last two years, with underage (and often incestuous) pregnancies a growing concern’.[56] When read in context I do not consider the latter statement to relate to travel on public transport.

[56] Department of Foreign Affairs and Trade, Country Information Report: Sri Lanka, 2 May 2024

127.   While DFAT acknowledges that sexual harassment is prevalent in the context of travel on public transport, consistent with the UNFPF report, I do not consider this to support a finding that the applicant faces a real chance/risk of gender-based harm of a level amounting to serious harm or significant harm while travelling on public transport. While the size of the UNFPF survey is relatively small, I acknowledge that it is likely to be generally representative of the experiences of women in Sri Lanka while travelling on public transport. I find the applicant will face a real chance of experiencing some of the behaviours described in the report while travelling on crowded public transport. However, for the reasons below I am not satisfied there is a real chance or real risk that she will experience harm amounting to persecution or significant harm in the course of such travel in the reasonably foreseeable future.

128.   For conduct to amount to persecution, s 5J(4) requires that a s 5J(1)(a) reason be the essential and significant reason, and it involves ‘serious harm’ to the person and systematic and discriminatory conduct. I am not satisfied that the majority of the types of conduct listed in the report meet these requirements. I acknowledge that gender can form the basis for a particular social group as defined in s 5L and some of the behaviours described in the UNFPF report clearly relate to this reason. However, several of the behaviours (unwanted crowding of personal space, improper seating etiquette and bus conductor when urging people to move forward places hand on shoulder/back deliberately) may reasonably be due to overcrowding on public transport. The difficulty of characterising some of the acts as sexual harassment is acknowledged in the report itself.

129.   The most frequent type of conduct is ‘Deliberate touching of any part of the body’, which RAILS submit to clearly amount to serious and significant harm. However, given the physical constraints and difficulties involved in public transport travel as acknowledged in the report, I consider it to be unclear whether this conduct is for reasons of the respondent’s gender.  

130.   While ‘serious harm’ is not exhaustively defined in the Act, s 5J(5) provides examples of the types of harm that may amount to serious harm. This relevantly includes significant physical harassment or ill-treatment. I acknowledge that some of the conduct described in the report may, depending on the circumstances, amount to significant harassment or ill-treatment, particularly the rubbing of genitalia against another’s body. However, I am not satisfied that  the majority of the conduct, which does not involve any form of physical harm, would constitute significant physical harassment or ill-treatment. Regarding the most frequent type of conduct (deliberate touching of any part of the body), based on the available evidence, I am not satisfied that this would necessarily amount to significant harassment or ill-treatment. For example, this could be limited to the touching of a person’s arm or hand to ask them to make way for other passengers.

131.   I also acknowledge that serious harm can include serious mental harm. Examples of serious mental harm involve the conduct of mock executions, or threats to the life of people very closely associated with the person seeking protection.[57] I acknowledge that some of the types of conduct, if experienced by the second applicant, would be likely to cause her some degree of distress and anxiety. However, even taking into account her age, considering the concerns discussed above I am not satisfied this would amount to the level of serious mental harm or any other type of serious harm for the purpose of s 5J(4)(b). While RAILS has indicated that the second applicant has recently been referred to a specialist mental health service, there is no evidence before me that she suffers from any diagnosed mental health conditions.     

[57] Revised Explanatory Memorandum, Migration Legislation Amendment Bill (No 6) 2001 at [25]

132.   For the purposes of the complementary protection criteria, ‘significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. The definitions of cruel or inhuman treatment or punishment and degrading treatment or punishment in s 5(1) of the Act require an intention on the part of a perpetrator to inflict severe physical or mental pain or suffering or extreme humiliation which is unreasonable. I acknowledge that some types of conduct described in the report may, depending on the circumstances, involve severe physical or mental pain or suffering or extreme humiliation which is unreasonable. However, I find the vast majority of the conduct to not reach this threshold.

133.   In regard to the real chance/real risk threshold, I have also considered the finding in the UNFPF report that there is a higher occurrence of more serious harassment during long-distance bus travel. Based on the available evidence and the second applicant’s circumstances, I find that she would not be required to undertake solo travel on long-distance buses. If a particular requirement arose where she was required to do so, I consider that she could reasonably arrange for a male relative to travel with her. I find this would substantially reduce the real chance/risk of her experiencing conduct that may amount to serious or significant harm while travelling on public transport.

134.   I have considered whether the second applicant would face an increased risk of gender-based harm while travelling on public transport, or more broadly while residing in the Eastern Province, due to being ‘westernised’, returning as a failed asylum seeker, and/or her lack of familiarity with life in Sri Lanka/Tamil culture. For clarity, this encompasses the claim raised by [Wife A] that the second applicant may face sexual harassment from other students while attending school.

135.   As noted in the 2024 DFAT report, between July 2013 and September 2023, close to 2000 Sri Lankans have returned from Australia as failed asylum seekers following a statutory (appealable) process. Most are from the north-east of the country and nearly all are Tamil. In-country sources reported recent voluntary returnees had received support from the International Organisation for Migration (IOM), as well as from their families and broader communities. Recent returnees had been welcomed by their communities and found employment or established businesses.[58] I also note that the Eastern Province has far greater ethnic diversity than the north. As of the most recent census (2012), Tamils comprised 39.2 per cent of its population, Muslims 36.9 per cent and Sinhalese 23.2 per cent.[59]

136.   While I accept that the second applicant may be noticeably westernised and her status as a failed asylum seeker could be known, I do not consider these factors would elevate her risk of being subject to gender-based violence on return to the Eastern Province. As outlined above, many Tamils have returned to the north and east after unsuccessfully seeking asylum in Australia. It is likely that many of these people have similarly spent lengthy periods in Australia considering the statutory right to seek merits and/or judicial review. According to DFAT, the risk of societal discrimination for such returnees is low and many are reported to have been welcomed and supported by their families and communities. As discussed above, the second applicant would have the support of her parents and extended family in the Eastern Province.

137.   I accept that the second applicant has little to no memory of life in Sri Lanka. However, she is of Tamil ethnicity and has always resided with Tamil parents. I find that she would have some familiarity with Tamil culture. While I accept that she cannot read or write in Tamil, she is able to speak Tamil. I am not satisfied that any noticeable difference in her Tamil accent would cause her to be targeted for gender-based harm. She would be returning to a province with considerable ethnic diversity. Based on the available evidence and my findings above, I not satisfied that any of these factors would cause her to be targeted such that she would face a real chance of serious or significant gender-based harm.

138.   Considering all of the above, I am not satisfied there is a real chance or real risk that the second applicant will experience sexual harassment or abuse from non-state actors amounting to serious or significant harm if she returns to the Eastern Province.

Re-integration challenges

139.   I have considered the claims that the second applicant would face harm on return to Sri Lanka because of her Tamil/Sinhalese language limitations and lack of familiarity with Sri Lankan life. I acknowledge that reintegrating into Sri Lankan society would involve significant personal challenges for the second applicant, including in relation to language and cultural adjustments. However, I am not satisfied that this would amount to persecution by state or non-state actors for any of the reasons in s 5J(1)(a). I am therefore not satisfied that the second applicant has a well-founded fear of persecution for these reasons. Further, I am not satisfied that it would amount to any of the types of significant harm defined in s 36(2A) for the purposes of engaging complementary protection obligations.

Ministerial intervention request  

140.   I have considered the request for the Tribunal to refer this case to the Minister for possible intervention under s 351 of the Act. I acknowledge RAILS’ submissions that this case may involve unique or exceptional circumstances with respect to the second applicant and her younger sister who is an Australian citizen. Having regard to all the circumstances of this case, I have decided not to refer this matter to the Minister. I note that it is open for the applicants or their representative to submit a request for Ministerial intervention directly to the Department if they wish to pursue this option.

[58] Department of Foreign Affairs and Trade, Country Information Report: Sri Lanka, 2 May 2024

[59] Department of Foreign Affairs and Trade, Country Information Report: Sri Lanka, 2 May 2024

Conclusions

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

   DECISION

142.   The Tribunal affirms the decision not to grant the applicants protection visas.

Date of hearing: 16 June 2025

Representative for the applicants:  Ms Mu Shwe

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

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

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

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

but does not include an act or omission:

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

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

…

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

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

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

…

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

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

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

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

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

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

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

…

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

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

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

…

5H    Meaning of refugee

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

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

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

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

…

5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b)     significant physical harassment of the person;

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

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

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

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

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

5K    Membership of a particular social group consisting of family

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

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

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

(i)the first person has ever experienced; or

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

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

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

5L    Membership of a particular social group other than family

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

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

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

(c)     any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

(i)the relevant State; or

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

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

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

(a)     the person can access the protection; and

(b)     the protection is durable; and

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

…

36     Protection visas – criteria provided for by this Act

…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

…

Secretariat, 31 January 2017

Secretariat, 31 January 2017

single Tamil women; ability to relocate to Colombo, including access to housing, education, employment, and health care; the method and ability of the government or paramilitaries to track Tamils, including single Tamil women, upon relocating to Colombo; impact of COVID-19 in Colombo (2020–April 2022), 2 May 2022

single Tamil women; ability to relocate to Colombo, including access to housing, education, employment, and health care; the method and ability of the government or paramilitaries to track Tamils, including single Tamil women, upon relocating to Colombo; impact of COVID-19 in Colombo (2020–April 2022), 2 May 2022