2446759 (Refugee) - [2025] ARTA 1435

2446759 (REFUGEE) [2025] ARTA 1435 (27 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2446759
Tribunal:General Member S Nyabally
Date:27 March 2025

Place:Melbourne
Decision:The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 27 March 2025 at 9:58am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Circuit and Family Court remittal – arrived by air with false passport and placed in immigration detention – political opinion – family Tamil Tigers sympathisers and two brothers served – applicant’s participation in commemorative events and work for Tamil-language service – colleague killed and applicant detained, interrogated, beaten and threatened – released after father-in-law paid bribe – return after period in another country, and participation in public event while in hiding – circumstances of work, travel and participation – CCTV footage of attack provided – mental health – country information – monitoring of Tamil separatist activities and restrictions on media outlets – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4), (5), 5LA(2), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
AGA16 v MIBP [2018] FCA 628

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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant the applicant a Subclass 790 Safe Haven Enterprise (Class XE) visa (protection visa) under s 65 of the Migration Act 1958 (Cth) (the Act).
APPLICATION FOR REVIEW
The applicant first arrived in Australia [in] October 2023 as an unauthorised air arrival, using a false Sri Lankan passport in the name [Alias]. He has not subsequently departed Australia and is currently detained in immigration detention.
The applicant applied for the protection visa on 3 November 2023. The delegate refused to grant the protection visa on 29 November 2023.
On 4 December 2023. the applicant applied to the (then) Administrative Appeals Tribunal (AAT) for review of the delegate’s decision. On 14 March 2024 the AAT affirmed the delegate’s decision.
The applicant sought judicial review of the AAT’s decision on 16 April 2024. On 25 October 2024 the Federal Circuit and Family Court quashed the AAT’s decision and remitted the matter to the Administrative Review Tribunal for reconsideration.[1]
[1] On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 4 March 2025 to give evidence and present her case. The Tribunal hearing was conducted with the assistance of the applicant’s representative and an interpreter in the Tamil and English languages.
CLAIMS AND EVIDENCE
Before the Department
The applicant claims to be a [Age]-year-old Sri Lankan citizen who was born in [Town], Sri Lanka.
In a statement accompanying his protection visa application, the applicant claimed to fear harm in Sri Lanka on the basis of his familial links to the Liberation Tigers of Tamil Eelam (LTTE) and his (actual and imputed) political opinion.
The applicant claimed that his family were well known locally as LTTE sympathisers as two of his brothers, [Mr A] and [Mr B], had served in the LTTE. The applicant had not had any direct involvement with the LTTE as he was a child when the war ended, but as an adult had actively participated in Tamil commemorative events and had worked as [an occupation 1] for [Employer 1], a Tamil-language [service] operating in Sri Lanka.[2]
[2] [URL]
At the beginning of 2023, the applicant and his colleague [Mr C] were [doing a job task] in [Town] when they were approached by men who identified themselves as from the Criminal Investigation Department (CID). The men took the applicant and [Mr C]’s national identity cards and left, telling them that the cards would be returned by post. [Mr C] was killed several weeks later, and his body found on the road. [Mr C]’s family lodged an inquiry with the courts because they believed that the Sri Lankan authorities were responsible for his death.
In June 2023, the CID detained the applicant and took him to their office. The applicant was held for 3 days, beaten and interrogated about the work he did for [Employer 1]. During the interrogation the CID officers showed the applicant his and [Mr C]’s identity cards, told him that they were responsible for [Mr C]’s death, and warned him that he would face the same fate if he did not cease his [occupation 1] work. The CID officers also accused the applicant of being from a LTTE family, informing him that they knew his 3 brothers had fled Sri Lanka and that 2 were LTTE members. The applicant was only released after his father-in-law paid a senior CID officer a bribe (the June 2023 incident).
In July 2023 the applicant fled Sri Lanka for [Country 1] with the assistance of an agent. He returned to Sri Lanka in September 2023 before departing for Australia in October 2023 using a false Sri Lankan passport.
The applicant claimed that if he were to return to Sri Lanka he would be targeted by the Sri Lankan authorities because of his familial ties with the LTTE and his work in the media.
Interview with the Department
The first applicant attended an interview with the delegate on 21 November 2023.
Delegate’s decision
In their decision record, the delegate did not accept that there was a real chance or risk that the applicant would be harmed because of his familial ties with the LTTE and/or his work in the media.
The delegate accepted that [Mr A] and [Mr B] had served in the LTTE, but found that they were low-level former cadres and that the country information indicated that Tamil family members of low-level LTTE members were unlikely to face persecution in Sri Lanka.
The delegate did not accept that the applicant worked for [Employer 1] with [Mr C], that he and [Mr C] were approached by CID officers while [doing a job task], that [Mr C] was killed in suspicious circumstances, that [Mr C]’s family lodged an inquiry with the courts, that the June 2023 incident occurred as claimed, or that the applicant remained in hiding over the period between his return from [Country 1] and his departure for Australia. In rejecting those claims, the delegate placed weight on: the lack of any country information concerning a January 2023 protest or [Mr C]’s death; the absence of any reference to the applicant on the [Employer 1] website; and [Social media] posts which indicated that the applicant participated in [an event] in [Town] in September 2023, during the period he claimed to be in hiding in Colombo.
Submissions and evidence
The applicant has provided a large amount of information to the Department and Tribunal, including:
·written submissions prepared by his legal representatives;
·oral evidence given at his protection visa interview, his AAT hearing and his 4 March 2025 hearing;
·a number of written statements from the applicant, the most recent of which was declared on 28 February 2025;
·photographs of the applicant participating at Tamil commemorative events;
·CCTV footage depicting an attack on the applicant on 24 November 2021;
·supporting statements from [Mr C]’s wife and mother;
·[Mr C]’s death certificate;
·a letter from [Public office holder Mr D],[3] who helped secure the applicant’s release from the CID in June 2023;
·a letter from [Mr E], a friend of the applicant who helped him flee Sri Lanka in July 2023;
·two translated messages from the Sri Lanka Police dated [November] 2023 and [December] 2023;
·supporting statements from the applicant’s mother and wife; and
·health assessment reports prepared for the applicant by [Organisation].
[3] [Reference]
Where relevant, these are considered in the Tribunal’s findings below.
Criteria for protection visa
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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.[4]
[4] In this case, the relevant report is the ‘Country Information Report: Sri Lanka’ (2 May 2024) (DFAT Report)
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds. The applicant does not claim to be a member of the same family unit of a person in respect of whom Australia has protection obligations.
For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Identity
The applicant has provided a translated copy of his Sri Lankan birth certificate, and copies of the biodata pages of the Sri Lankan passport issued in his name.[5] There is no information before the Tribunal suggesting that he has a right to enter or reside in any other country. The Tribunal finds that the applicant is a citizen of Sri Lanka, and that Sri Lanka is the receiving country and country of reference for the purposes of this review.
[5] The Tribunal does not have a copy of the applicant’s bogus passport before it.
The applicant’s personal background
The applicant gave evidence that he was born in [Village], [Town]. He is one of [Number] siblings. [Some] of his sisters are deceased and [one] lives in [Village]. The applicant’s eldest brother, [Mr F], has been estranged from the family since the end of the civil war. The second brother, [Mr A], was granted a protection visa in Australia in 2017 and is now an Australian permanent resident. The applicant’s third brother, [Mr B], has sought asylum in [Country 2], and his fourth brother, [Mr G], has sought asylum in [Country 3].
The applicant and his family lived in [Town] until they were displaced at the end stages of the Sri Lankan civil war. The applicant, his parents, sister and [Mr G] were all detained in camps for about a year after the end of the war. They were permitted to return to [Village] in about 2010. [Mr B] was released from a military camp in 2013.
After completing his O-levels in [Year] the applicant went to work in a shop with [Mr B]. He opened his own shop in 2018, selling [supplies] to other merchants. After closing his shop in 2020 the applicant retained 2 vehicles which he would rent. The rent from 1 vehicle was used for his living expenses, and the rent from the second vehicle was saved.
The applicant is married. He and his wife married in 2019, and they have a [child] together. The applicant’s wife and child life with his wife’s parents in [Location], [Village].
The Tribunal accepts the above matters to be true.
The applicant’s claims for protection
As was noted above, the delegate did not accept the applicant’s claims about his work for [Employer 1], the death of [Mr C] or the June 2023 incident. The delegate also did not accept that the applicant was of ongoing interest to the Sri Lankan authorities because of his media work and/or political opinion. The delegate placed significant weight on the applicant’s decision to participate in [an event] while in hiding, which in their view suggested that the applicant knew he was of no particular interest to the Sri Lankan authorities.
The Tribunal has the benefit of substantial additional evidence addressing the delegate’s concerns.
In respect of the applicant’s work for [Employer 1], the applicant has provided further evidence about the nature of the position, his motivation to work as [an occupation 1], and why he could perform the job without formal [work sector] qualifications. The applicant explained that he was inspired to work in [work sector] to promote awareness of Tamil issues. He did not consider that the current situation for Tamils in Sri Lanka was fair or acceptable, and wanted to bring news of this to the international community. The applicant did not require the income, as he was earning money through the rental of his vehicles, but rather had an ambition to spread news about the Tamil cause to society. The applicant did not need formal [work sector] training to work for [Employer 1] as the website relied primarily on [materials] uploaded by its contributors. He would [produce the materials], edit them on [an app] then send them to the [website] via [messaging service]. He would be paid if the [website] chose to use the content. The content was not attributed to him specifically and would be taken down if the Sri Lankan government objected to it.
The applicant’s evidence is supported by country information, which suggests that the significant external censorship of Sri Lankan media outlets may force small organisations such as [Employer 1] to exercise self-censorship as a survival strategy. For example, social media platforms including Facebook, Twitter, WhatsApp, Viber and YouTube were temporarily restricted during anti-government protests on April 3, 2022, and in July 2022, anti-government protesters at multiple times experienced internet and mobile signal jamming around the protest site in Colombo.[6] The Tamil Guardian, a news outlet focused on Tamil issues, has also faced persistent censorship on social media platforms.[7]
[6] ‘Sri Lanka: Picking up the Pieces’, South Asia Press Freedom Report 2022-2023, available at
[7] ‘‘Facebook’s Tamil censorship highlights risk to everyone’ – The Intercept’, Tamil Guardian (19 January 2022), available at
In respect of [Mr C]’s death, the applicant has provided the Tribunal with the following corroborative documents:
·a copy of [Mr C]’s press association card;
·a translated copy of [Mr C]’s death certificate;
·a translated copy of a request for [Mr C]’s death certificate made by the ‘Justice of the Peace and Inquirer into Sudden Deaths’; and
·statements from [Mr C]’s wife and mother, both raising concerns with the lack of ‘proper investigation’ into [Mr C]’s death.
In respect of the applicant’s June 2023 detention and his decision to participate in the [event] in September 2023, the applicant has given evidence that he only managed to escape further harm from the authorities because of the actions of [Public office holder Mr D] and [Mr E]:
·[Mr D], who is Tamil, was instrumental in securing the applicant’s release in June 2023 by providing the applicant’s father-in-law with the contact details of a senior CID officer, which enabled his father-in-law to pay the bribe.
·[Mr E] was responsible for organising the applicant’s departure from Sri Lanka in July 2023, and was the person who requested that he participate in the [event]. The applicant agreed to the request because he felt obligated to return the favour to [Mr E]. [Mr E] had assured the applicant that he would not be detained by the authorities at the [event] because they had no arrest warrant, and also because senior officials (including [Mr D]) would be attending the game. [Mr E] arranged for the applicant to be transported secretly to and from the [event] in a lorry driven by one of his contacts. The applicant did not remain in [Town], returning to Colombo immediately after the [event] ended.
The applicant’s claims are corroborated by the letters from [Mr D] and [Mr E].
[Mr D] confirms that the applicant’s father-in-law reached out to him for assistance when the was detained by the CID for 3 days. The MP contacted ‘higher officials’ and passed on information about the applicant’s situation to enable his father-in-law to arrange his release.
[Mr E]’s letter describes the travel arrangements he made for the applicant’s return to [Town] as follows:
I requested [the applicant] to play by the initially refused due to security concerns. However, I assured him that the [venue] was safe; as VIP guests were attending, legally there is no proof to arrest [the applicant] by Court, and no one would be arrested in front of the VIPs. Based on my assurance, he agreed to participate and because of his contribution, our team won the match.
I organised travel arrangements for [the applicant]’s journey between Colombo and [the venue] in [Town]. [The applicant] travelled to the [event] via [Employer 2], as I work as [an occupation 2] for a company and was able to arrange the Transport. After the match, i arranged a private vehicle to safely transport [the applicant] back to Colombo. I am aware of the transport’s departure and arrival times because of my role as [an occupation 2] at [Employer 2].

The Tribunal considers that the additional evidence before it adequately addresses the concerns identified by the delegate. However, as the Tribunal has ultimately found that the applicant meets s 36(2)(a) of the Act on the basis of his imputed pro-Tamil separatist political opinion, the Tribunal has only addressed his claims and evidence to the extent that they are relevant to its findings.
FINDINGS AND REASONS
The Tribunal accepts, as the delegate did, that the applicant’s brothers [Mr A] and [Mr B] both served in the LTTE. At the hearing the applicant provided a detailed description of his interactions with his brothers’ LTTE cadres while growing up, including his memories of dinners at the family home with LTTE fighters. The Tribunal accepts the applicant’s claim that he was perceived as coming from a ‘LTTE family’ by local authorities due to his brothers’ involvement with the movement.
The Tribunal accepts that the applicant has been an active participant in Tamil commemorative events in Sri Lanka, including Maaveerar Naal protests in November 2019, 2020 and 2021, and a protest about missing persons held in early 2023. This claim is corroborated by photographs the applicant has provided depicting him attending those events. In one event, which the applicant claimed was the 2023 [protest], the applicant is wearing a [shirt] with [a slogan]. In another photograph of the same event, the applicant is shown standing in a line with [Mr D].
The Tribunal accepts that the perception of the applicant as coming from a ‘LTTE family’, coupled with his participation in Tamil protests and commemorative events, may have attracted the adverse attention of the Sri Lankan authorities. The applicant gave evidence that the CID would often attend and monitor Tamil political demonstrations, and would threaten and harass him just before significant dates such as Maaveerar Naal and Mullivaikkal Remembrance Day to dissuade the applicant from participating. This claim is corroborated by the CCTV footage he has provided showing the applicant being attacked and chased by 3 men. The footage is date stamped 24 November 2021 – 3 days before Maaveerar Naal.
The Tribunal accepts that the Sri Lankan authorities’ interest in the applicant may have intensified after he participated in the 2023 protest wearing a shirt bearing a slogan promoting Tamil statehood. The DFAT Report indicates that the Sri Lankan authorities remain on high alert to Tamil separatist activity, and security forces continue to monitor public gatherings and protests in the north-east and question individuals suspected of promoting Tamil statehood or pursuing politically sensitive issues related to the war (such as advocating for missing persons or organising and participating in civil war commemorations).[8]
[8] DFAT Report at [3.13], [3.16].
As the Tribunal accepts that the applicant may have been imputed by the authorities as holding a pro-Tamil separatist political opinion, it also considers his claims to have been detained, beaten and threatened by the CID in June 2023 to be credible. His claims are corroborated by [Mr D] in his letter, and are consistent with DFAT’s assessment that anybody found to promote the LTTE or Tamil statehood more broadly faces a high risk of monitoring, arrest and detention.[9] The Tribunal accepts that the applicant fled Sri Lanka for [Country 1] shortly after being released by the CID, and did not return to [Town] other than for one day as described at [‎39]-[‎42] above.
The Tribunal accepts that the applicant may continue to be of ongoing interest to the Sri Lankan authorities on the basis of his adverse political profile, his failure to report to the authorities following his release in June 2023 and his subsequent disappearance. This claim is corroborated by the 2023 messages from the Sri Lanka police ordering the applicant’s arrest and transfer to the CID headquarters in Colombo.
[9] Ibid at [3.77].
Is the applicant a refugee?
In her written submissions to the Tribunal the applicant’s representative submits the applicant faces a well-founded fear of persecution from the Sri Lankan authorities, including the CID, based on (amongst other things) his profile as a Tamil with former LTTE family members who has protested in support of missing persons in Sri Lanka. Ms Merlino submits that the applicant has suicidal tendencies and is psychologically vulnerable, and if he were to be detained by the Sri Lankan authorities there is a real chance that his already fragile mental health will significantly deteriorate.
Country information
This Tribunal previously considered the Sri Lankan authorities’ response to perceived Tamil separatism in Tribunal case 1909084.[10] That decision contained the following summary:
[10] 1909084, unreported, 10 October 2024.
48.DFAT reports that the military retains a significant presence in the Eastern Province of Sri Lanka, 15 years after the end of the war. Further, in-country sources reported that the military and police had strong intelligence and surveillance capabilities, closely monitored for separatist activity, and that the military presence in the north-east had not materially reduced since the end of the war and was disproportionate to the security threat.[11]
[11] DFAT Report at [2.75].
49.The Sri Lankan authorities remain on high alert to the potential re-emergence of the LTTE and to Tamil separatist activity more broadly. Security forces continue to monitor public gatherings and protests in the north-east, and monitor and question individuals and groups suspected of promoting Tamil statehood or pursuing politically sensitive issues related to the war (such as organising and participating in civil war commemorations). DFAT assesses that Tamils who are suspected of glorifying the LTTE, as a proscribed entity, face a high risk of monitoring, arrest and detention.[12]
[12] DFAT Report at [3.13], [3.16].
50.…[S]ome Maaveerar Naal commemorations, including in Vavuniya and Batticaloa, were disrupted by police in November 2023 and, according to Human Rights Watch, nine Tamils were arrested under the Prevention of Terrorism Act (PTA).[13] The US Department of State noted that ‘throughout the country, but especially in the north and east, Tamils reported security forces regularly monitored and harassed members of their community, especially activists, journalists, NGO staff, and former or suspected former LTTE members’.[14] In its August 2024 report, the United Nation’s Human Rights Office of the High Commissioner (OHCHR) states:
[13] DFAT Report at [3.15].
[14] United States Department of State, ‘2023 Country Reports on Human Rights Practices: Sri Lanka’, (22 April 2024), 20240423140425, p 48.
OHCHR also received reports of at least 12 cases in which the PTA was used to detain persons, – primarily those participating or involved in organization of memorialization activities, – for a short period and without adequate acknowledgment of their deprivation of liberty, who were then released on bail or discharged weeks or months later.[15]
[15] Office of the High Commissioner for Human Rights (OHCHR), Report A/HRC/57/19 (advance unedited version) (16 August 2024), available at at [15].
51. The US Department of State has reported that:
Impunity remained a significant problem characterized by a lack of accountability for abuses, particularly regarding government officials, military, paramilitary, police, and other security-sector officials. Civil society organizations asserted the government, including the courts, was reluctant to act against security forces alleged to be responsible for abuses. During the year, civil society organizations reported some Tamils from the north alleged police illegally detained and tortured them and questioned them regarding connections to the LTTE or participation in protests.[16]
[16] United States Department of State, above n 10, p12.
52.The United Nations and various national and international human rights organisations continue to express concern about the use of repressive laws such as the PTA and the Bureau of Rehabilitation Act in order to arrest, detain and prosecute Tamils, despite promises of a de facto moratorium on its use.[17]
[17] Concluding observations on the sixth periodic report of Sri Lanka, United Nations, Report CCPR/C/LKA/CO/6 (26 April 2023), available at at [16]; ‘Situation of human rights in Sri Lanka: Comprehensive report of the United Nations High Commissioner for Human Rights’, OHCHR, Report A/HRC/57/19 (advance unedited version) (16 August 2024), available at at [15].
The HRCSL received numerous complaints of arbitrary arrest and detention. Police sometimes held detainees incommunicado, and lawyers had to apply for permission to meet clients, with police frequently present at such meetings. In some cases, unlawful detentions reportedly included interrogations involving mistreatment or torture. In August the government stated a de facto moratorium on the use of the PTA had been in effect since March 2022. Despite this there were reports of at least 15 arrests under the PTA. This included nine Tamils arrested in November for alleged use of illegal symbols or images glorifying the LTTE during participation in LTTE Great Heroes Day, an annual event to commemorate fallen LTTE fighters.[18]
[18] United States Department of State, above n 10, pp 16-17.
53.DFAT reports that whilst prohibited under Sri Lanka’s constitution and other laws, and the former Wickremasinghe government proclaiming a zero-tolerance approach, torture continues and is a routine tool of policing. They stated that in December 2023, the HRCSL reported torture was ‘a recurrent phenomenon in Sri Lanka.’[19] Earlier, in 2018, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms expressed concern about ‘the routine and systemic use of torture and ill-treatment and the conditions of detention, in particular the inhumane conditions in the high-security wing of the prison in Anuradhapura’.[20]
54.DFAT states that most reports of mistreatment and torture pertain to members of the police. In-country sources told DFAT that police routinely mistreated criminal suspects during their investigations, including as a means of extracting confessions.[21] They state:
Risk of torture perpetrated by the military, intelligence or police has decreased since the end of the civil war, but torture continues to be used, including as a routine tool of policing. Because few reports of torture are verified within Sri Lanka, it is difficult to determine the exact prevalence of torture; however, multiple domestic and international sources consider it to be common.[22]
55.Overall DFAT assesses that the general population in Sri Lanka face a low risk of torture, but that people arrested and detained for suspected criminal activities face a moderate risk of torture. They cite in-country sources who state that where it occurs, torture is not confined to a particular geographic region or ethnic group but is a nationwide problem that affects all communities. However, those most affected include people detained for drug trafficking and under the PTA for suspected terrorist activities.[23]
…
57.With respect to the treatment of returnees (including failed asylum seekers), DFAT states that on arrival in Colombo, returnees will be presented to Sri Lankan immigration where they will be interviewed by the Chief Immigration Officer. Depending on the circumstances of their departure from Sri Lanka and their personal history, they may also be interviewed by other agencies including the CID, the Sri Lankan State Intelligence Service (SIS) and the Sri Lankan Navy Intelligence (SLNI); these agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal background, or trying to avoid court orders or arrest warrants.[24] (emphasis added)
[19] DFAT Report at [4.19] and [4.23].
[20] DFAT Report at [4.21].
[21] DFAT Report at [4.24].
[22] DFAT Report at [4.29].
[23] DFAT Report at [4.30].
[24] DFAT Report at [5.37]–[5.39].
The Tribunal has reviewed the sources cited above and adopts the above summary.
While the Wickremesinghe government was defeated by Anura Dissanayake in Sri Lanka’s 2024 Presidential election,[25] the Tribunal does not consider that the change in leadership has altered the Sri Lankan authorities’ treatment of politically active Tamils in any meaningful way. Country information indicates that the Dissanayake government has maintained its opposition to Tamil statehood. According to the Tamil Guardian, the ruling Janatha Vimukthi Peramuna (JVP) party has consistently opposed international investigations into war crimes and the granting of devolution to Tamils:
Dissanayake and the JVP have been firmly against [an internationalised accountability process to hold perpetrators of war crimes accountable], with the JVP leader stating last month he "will not seek to punish anyone accused of rights violations and war crimes".
“Even the victims do not expect anyone to be punished,” he claimed, despite Tamils repeatedly calling for an international accountability mechanism and for Sri Lanka to be taken to the International Criminal Court (ICC).
At the same time, his party has openly embraced military officials implicated in war crimes such as retired general Aruna Jayasekara, reportedly entrusting him with their defence policy. Jeyasekara was the commander of the 3rd contingent to Haiti during a Sri Lankan peace keeping operation that faced allegations of running a child sex trafficking ring during a UN peacekeeping operation from 2004 to 2007.[26]
[25] Ellie Grounds, ‘Left-leaning Anura Dissanayake claims victory in Sri Lanka's presidential election after second vote count’, ABC News Online (23 September 2024), available at ‘Who is Anura Kumara Dissanayake?’, Tamil Guardian (20 September 2024), available at
Dissanayake also backtracked on election pledges such as repealing the PTA,[27] and in February 2025 the Sri Lankan government issued an extraordinary gazette continuing the ban on several Tamil diaspora groups, extending a ban that was first introduced more than a decade ago.[28]
Assessment
[27] ‘Dissanayake claims occupied land will be returned to 'rightful owners' in the North’, Tamil Guardian (2 February 2025), available at
[28] ‘Sri Lanka continues ban on Tamil organisations despite government change’, Tamil Guardian (24 February 2025), available at
The Tribunal finds on the basis of the country information cited above that despite significant improvements since the end of the war, the Sri Lankan government continues to take a particular interest in those who are involved with politically sensitive issues including memorialisation events and/or anything perceived to be promoting Tamil separatism, including accusations of war crimes. Although the Rajapaksa and Wickremasinghe governments are no longer in power, the governance architecture set up by the Rajapaksas remains largely unchanged, and continued surveillance and repression of political activists continues in the north and east.
In the applicant’s case, he would be returning to such an environment as a failed asylum seeker and a Tamil from northern Sri Lanka, who has come to the adverse attention of the CID and local police in the past due to his perceived association with the LTTE and promotion of Tamil statehood. Further the Tribunal accepts that the Sri Lankan authorities are actively looking for the applicant in his local area, and following his departure in October 2023 were instructed to arrest him and transfer him to the CID headquarters in Colombo.
Given these considerations and taking into account country information about the intolerance of anyone perceived to be promoting Tamil separatism, the Tribunal is of the view that the applicant faces a real chance of serious harm on return to Sri Lanka from the authorities based on his imputed pro‑Tamil separatist political opinion.
If as a result of such adverse attention the applicant is detained and questioned for more than regular processing periods – either on arrival or once back in [Town] – country information indicates that there remains a real risk of ill-treatment or harm requiring international protection, including torture. As noted, whilst DFAT assesses the general population face a low risk of torture, those detained by the authorities in Sri Lanka face a moderate risk of torture. They also note although decreased, torture is still used, described as a routine policing tool, and several sources state torture is common in Sri Lanka. Given what it accepts of his past experiences and profile, the Tribunal considers that on return to Sri Lanka the applicant may be imputed with a pro-Tamil separatist political opinion, detained and questioned in the manner described above, which it accepts will result in a real chance of serious harm.
The Tribunal has also taken the applicant’s personal vulnerabilities into account in assessing the seriousness of any potential harm: AGA16 v MIBP [2018] FCA 628. The Tribunal has had particular regard to the 2025 report from the applicant’s counsellor, which states that the applicant ‘impresses as experiencing symptoms of traumatic stress and depression which include low mood with frequent crying bouts, fatigue, excessive negative rumination, suicidal ideation, poor sleep and appetite, concentration difficulties, high anxiety, social withdrawal, nightmares and unwanted memories’. Taking the applicant’s mental health into account, the Tribunal is satisfied any future harm or even threats of harm the applicant may experience could amount to serious harm as contemplated in the Act.
Accordingly, the Tribunal accepts that should he return to [Town], north Sri Lanka, now or in the foreseeable future, there is a real chance the applicant will face serious harm from the Sri Lankan authorities as required by s 5J(4)(b) of the Act, in that it involves a threat to his life or liberty or significant physical harassment or ill-treatment, for the purposes of ss 5J(5)(a)-(c). The Tribunal finds the applicant’s imputed pro-Tamil separatist political opinion is the essential and significant reason for the persecution the applicant fears, as required by s 5J(4)(a).
Additionally, the Tribunal is satisfied the persecution the applicant fears involves systematic and discriminatory conduct, as required by s 5J(4)(c), in that it is deliberate or intentional and involves his selective harassment for reason of his imputed political opinion.
In this case, as the applicant fears serious harm at the hands of state actors, the Tribunal is not satisfied that effective protection measures as per s 5LA are available to the applicant in [Town]. The Tribunal finds that the applicant would not be able to access effective protection if returned to Sri Lanka for the purposes of s 5LA(2).
Additionally, as the state authorities whom the applicant fears exist nationally, the Tribunal is not satisfied that there is any part of Sri Lanka where he would be safe from the persecution that he fears based on his political opinion. The Tribunal is satisfied the applicant would face a real chance of persecution in all areas of Sri Lanka as required by s 5J(1)(c).

The Tribunal notes that s 5J(3) states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience or conceal an innate or immutable characteristic. In this case, the Tribunal is satisfied that the modification would require the applicant to ‘alter his or her political beliefs or conceal his or her true political beliefs’ which is impermissible as per s 5J(3)(c)(iii) of the Act.
Accordingly, and for the reasons above, the Tribunal finds that the applicant faces a well‑founded fear of persecution from the Sri Lankan authorities due to his imputed political opinion if he returns to Sri Lanka, now or in the reasonably foreseeable future. The Tribunal finds the applicant has a well-founded fear of persecution for the purposes of s 5J.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Given these findings, the Tribunal has not gone on to consider other aspects of the applicant’s claims and submissions.
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date of hearing:  4 March 2025
Representative:  Ms Nina Merlino, Carina Ford Lawyers
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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