1214418 [2013] RRTA 177 (20 February 2013)
DECISION RECORD
RRT CASE NUMBER: 1214418
DIAC REFERENCE(S): CLF2012/158095
COUNTRY OF REFERENCE: Sri Lanka
TRIBUNAL MEMBER: Lesley Hunt
DATE: 20 February 2013
PLACE OF DECISION: Brisbane
DECISION: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection (Class XA) visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant, who claims to be a citizen of Sri Lanka, applied to the Department of Immigration for the visa on [date deleted under s.431(2) of the Migration Act 1958 as this information may identify the applicant] July 2012.
3. The delegate refused to grant the visa [in] September 2012, and the applicant applied to the Tribunal for review of that decision.
RELEVANT LAW
4. Under s.65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. The criteria for a protection visa are set out in s.36 of the Act and Part 866 of Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention), or on other ‘complementary protection’ grounds, or is a member of the same family unit as a person in respect of whom Australia has protection obligations under s.36(2) and that person holds a protection visa.
Refugee criterion
5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention.
6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
7. The High Court has considered this definition in a number of cases, notably Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA (2000) 201 CLR 293, MIMA v Haji Ibrahim (2000) 204 CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 (2004) 222 CLR 1, Applicant S v MIMA (2004)
217 CLR 387, Appellant S395/2002 v MIMA (2003) 216 CLR 473, SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51.
8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person.
9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). The expression ‘serious harm’ includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well- founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A fear is well- founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of
that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
16. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non- citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
CLAIMS AND EVIDENCE
19. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.
20. The applicant appeared before the Tribunal [in] December 2012 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.
21. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
Departmental file
22. The applicant provided the following information in his application for protection.
23. He is [age deleted: s.431(2)] and was born in [location deleted: s.431(2)], in the Batticaloa District, in the Eastern Province of Sri Lanka. He has always lived in Batticaloa District. He is Tamil and a Hindu and speaks some Sinhalese and some English.
24. He was issued with a passport [in] 2003.
25. He completed 11 years of secondary school in Batticaloa from [years deleted: s.431(2)]. After this he did a [course deleted: s.431(2)] in 2001 and then a 6 month [course deleted: s.431(2)]. He also did a one month English language course when he was in [Country 3].
26. He worked on his father’s farm from 1999 to October 2003 and then he did some office work in [Country 4]. He also worked in a bank in the [Country 4] and then did some clerical work in a gas works in the [Country 4]. When he returned to Sri Lanka he worked as a distributor of [goods] and also assisted at a local Community Centre and a Sports Club. He helped the Tamil National Alliance (TNA) in the elections in 2010.
27. He is a citizen of Sri Lanka and no other country. He does not have the right to enter and reside in any country other than Sri Lanka. He was in [Country 3] from [a date in] October 2003 until [a date in] April 2007. He returned to Sri Lanka for a few months and then returned to [Country 3] in July 2007 and stayed until the end of September 2009.
28. The applicant’s parents and [sisters] live in Batticaloa. His [brothers] are in overseas countries.
29. The applicant states that he was a member of the local sports club and he was [Official 1] of the club from 2008 to 2010. He was also a member and [Official 2] of the Community Centre from 2009 to 2011. He was also a member of a Youth Club. He also states that he worked for the TNA in the 2010 elections.
30. The applicant claims that his brother is an active member of the TNA and as a member he spread the ideology and policies of the TNA. This led to problems with the Tamil Eelam Liberation Organisation (TELO) and the Eelam People’s Democratic Party (EPDP) which supported the government. His brother’s life was threatened and he was forced to leave Sri Lanka. When he left they turned their anger on the applicant.
31. The applicant’s father was taken by the Special Task Force (STF) immediately after his brother left. He was released the same day; however a week later the STF came looking for his father again. The applicant was then detained for 2 days and interrogated. They asked him about his brother and his involvement with the TNA.
32. Since then the applicant has been regularly taken by the STF in roundups and is branded as a TNA supporter. He was taken more than 20 times until 2003. He then left for work in [Country 3]. When he was taken he was beaten several times. His detention ranged from 1 hour to overnight. When the STF found he was
planning to leave for [Country 3] he was made to report to a military camp once a week and then once a fortnight. He left for [Country 3] in 2003. His father was taken away and detained for 1 month. His father was interrogated and asked to produce the applicant’s brother. The TNA negotiated his father’s release. The applicant states that his father was assaulted and sustained injuries as a result. The applicant’s mother was able to visit him once every 2 days for about 10 minutes only.
33. The applicant claims that his father and [brother] continued to be harassed, rounded up and questioned. His [brother] left Sri Lanka in 2006. After this his father continued to be targeted and questioned.
34. The applicant states that the family live near a [location deleted: s.431(2)]. During 2007 the peace accord was in place and the applicant returned to Sri Lanka for a holiday because he thought things would have settled down. However one month later Tamil Makkal Viduthalai Pulikal (TMVP) members who had an office in the village wanted to borrow the applicant’s motorbike. One day he refused their request and a physical fight broke out as a result. After this the applicant’s father advised him to leave for [Country 3] again.
35. The applicant returned to Sri Lanka again September 2009. The applicant started a business and about 6 months later he won a contract to become an agent for a [goods deleted: s.431(2)] company. He had to distribute [goods]. He also began community work with the community centre. He was a member and became [Official 2] for nearly 2 years from 2009 to 2011. He was also [Official 1] of the Sports Club.
36. The TMVP approached the community centre and asked the organisation to organise a [Meeting 6] for the TMVP. He was asked to assist. There were [a number of] members on the committee of the centre and they were told that they had to get 500 people to attend the TMVP [Meeting 6] which was to be held in [location and date deleted: s.431(2)]. He was also told that he must come to the [Meeting 6] venue on [date deleted: s.431(2)] to decorate. [Meeting 6 details deleted: s.431(2)]. The community centre committee agreed to go to the venue on [that date] to decorate.
37. An argument took place about how to attract 500 people to the [Meeting 6], particularly as the TMVP was not popular in the district. The committee agreed to organise a public meeting to promote the [Meeting 6] and attract [Meeting 6] participants. The public meeting was advertised. The applicant told the committee that he would not be involved.
38. On [date deleted: s.431(2)] only a few people turned up to decorate the [Meeting 6] venue. Because he was not involved he was accused by the TMVP of being a TNA supporter. [In] March some TMVP people came to his house to look for him. His mother told them he was out at the shop. When he arrived home at 8pm. his mother gave him a letter signed by a TMVP member requesting that he go to the TMVP office at [time deleted: s.431(2)]. However his mother had given him the letter later than that. The applicant went immediately to the TMVP office after he returned home at [time deleted: s.431(2)]. He arrived there at about [time deleted: s.431(2)]. There was a police security person at the front of the TMVP office. The
applicant gave the policeman the letter and was told to wait outside. He waited for 1.5 hours. During this time he overheard a conversation in which the police said he was going to be beaten and he should leave. However the applicant remained seated.
39. The applicant claims that he was slapped form behind, pushed, and accused of supporting the TNA in the election in April. The applicant agreed that he did support the TNA in the election. He continued to be slapped. He was told that if 500 local people do not attend the TMVP [Meeting 6] he would see what happens. He was told to leave. The applicant left. He did not attend the [Meeting 6] and neither did 500 people from his local area.
40. On the morning of the [date deleted: s.431(2)] [buses] came to the local area to assist with transport to the [Meeting 6]. However not many people boarded the buses. People were abducted as a result of this. On the [date deleted: s.431(2)] in the morning a TMVP man came on a motorbike and told the applicant to go to the TMVP office. The applicant did not go as he was afraid of being beaten.
41. On [date deleted: s.431(2)] the applicant went to the bank and his father stayed in the shop. The TMVP took his father and left a message for the applicant to go to their office. He learnt later that his father was taken and questioned and then taken to [location deleted: s.431(2)] and dropped off. The applicant’s mother told him to go his sister’s house in [location deleted: s.431(2)]. The applicant left at about 9p.m. that night.
42. On [date deleted: s.431(2)] the TMVP went to the applicant’s home looking for him. They verbally abused his parents and threatened to kill the applicant. The applicant’s mother phoned his sister and the family made arrangements for the applicant to leave Sri Lanka shortly after that.
43. The applicant provided copies of several documents and letters as evidence of his identity, Sri Lankan citizenship, his employment in [Country 3], his membership and committee membership of the local community centre and sports club, and support for the TNA.
Tribunal file
44. [In] December 2012 the applicant provided the following information in a written statement. He stated that his mother told him that since he came to Australia unidentified persons approached his house and asked for him. They provided no reason why they wanted the applicant but they verbally abused his mother. His mother told them that the family did not know where he was and they were also looking for him. The applicant has not asked his mother for more details as she is very sensitive and will cry. He tried to convey this information to immigration when he was first told about it but was unable to contact his lawyer.
45. The applicant submitted several articles in the Tamil language in support of his claims. He states that the documents provide the following information.
• An MP gave a speech in the Sri Lankan Parliament stating that Tamils who have been returned to Sri Lanka continue to face problems. (Reference details
were provided for a video clip of the speech which the MP gave to the Parliament).
• An MP talked to Australian reporters about the problems faced by Tamils in Sri Lanka.
• An MP from the Tamil National Alliance (TNA), Mr Logeswaran, has written a letter to the Australian government about what is happening to the Tamils who are returned to Sri Lanka.
• An article outlining the treatment of Tamil asylum seekers on their deportation back to Sri Lanka.
• An article reporting on a TNA supporter’s house which was attacked with a grenade.
• 2 articles on the treatment of Tamil asylum seekers on their deportation back to Sri Lanka.
• Patrick Brown, an MP in the Sri Lankan parliament, has criticised the government over the treatment of Tamils and more specifically the ethnic based violence against students at Jaffna University.
• Tamils are being discriminated against by the Sri Lankan government.
• Tamil people in the Batticaloa area are being harassed by the Sri Lankan army and police and people are being abducted.
• Sinhalese are demolishing Tamil temples and constructing Buddhist ones on the same land.
• The poor treatment of Tamils during their special days and how they are prevented by Sri Lankan authorities from properly celebrating.
• The treatment of Tamil Asylum seekers on their deportation back to Sri Lanka and how they are being detained for long periods after their return.
• An MP has spoken out about the Sri Lankan formed Human Rights Committee and the fact that the persons appointed to the committee are retired military servants.
46. A submission from the representative contained the following information. The applicant fled Sri Lanka because he fears further persecution by the Sri Lankan authorities and paramilitary groups supporting the Sri Lankan government, including the TMVP. The persecution will be in the form of harassment, intimidation, detention, interrogation and physical assault on account of a number of Convention reasons.
47. There is systematic and discriminatory targeting of people with the applicant’s profile in Sri Lanka. The harm he fears amounts to serious harm. The reasons are his race (Tamil); imputed political opinion of being opposed to the Sri Lankan
government as a consequence of his race, his support for the TNA, and for seeking asylum in Australia.
48. He fears persecution also because of his membership of particular social groups, namely “Tamil failed asylum seeker who left the country illegally”, and “male Tamils from the east of Sri Lanka”. The representative submitted arguments as to how these two groups fit the requirements for the Convention ground of “membership of a particular social group”.
49. It is submitted that it is neither relevant nor reasonable for the applicant to relocate elsewhere within Sri Lanka, given that he fears official persecution and there is no protection from the harm feared as it is officially sanctioned and carried out by the Sri Lankan authorities and supporting paramilitary groups.
50. It is submitted that there exists a real chance that the persecution feared would occur in Sri Lanka in the reasonably foreseeable future.
51. The representative outlined the applicant’s claims and submitted arguments in response to the delegate’s decision to refuse the applicant protection. The representative made submissions with respect to the Convention grounds of race, imputed political opinion, and membership of a particular social group, and the applicant’s well-founded fear.
52. The representative submitted extracts from various reports on the human rights situation in Sri Lanka from government and non-government agencies including references cited in several Tribunal decisions. It is submitted that the independent country information strongly supports the applicant’s claims to fear harm from the Sri Lankan security forces and supporting paramilitary groups for Convention reasons.
53. The representative also made submissions with respect to the applicant’s being a potential “returned failed asylum seeker” and cited independent country information which indicates that failed Tamil asylum seekers face dangers and risk of persecution when deported to Sri Lanka from western countries. Particular reference is made to the report from Freedom From Torture, dated 13 September 2012, in which cases of returnees from the UK being tortured were identified and the organisations call for suspension of forcible removals to Sri Lanka. Reference is made also to a similar report from Human Rights Watch dated 15 September 2012.
54. The representative also made extensive submissions with regard to complementary protection legislation.
The hearing
55. The applicant and his representative attended a hearing with the Tribunal [in] December 2012. The applicant provided the following information in response to questions from the Tribunal.
56. The applicant confirmed that the information he provided in his protection visa application is true and correct and there was nothing that he wanted to change in
his application. He confirmed his date and place of birth and that he is a citizen of Sri Lanka and no other country. He stated that his ethnicity is Tamil and his religion is Hindu.
57. The applicant confirmed that he had been issued with a passport by the Sri Lankan government. The passport is at his home in Batticaloa. He thinks it may have expired. The applicant clarified that an agent obtained the passport for him. He did not have to go to Colombo himself to obtain the passport.
58. The applicant confirmed that he has parents, [brothers] and [sisters]. Only his parents live in the family home in Batticaloa. His brothers [are] working overseas. One sister is married and lives in another village, and [a] sister lives with her mother-in-law in an overseas country. The applicant’s father is retired and receives a pension. The applicant is in regular contact with his family and last spoke with them the day before the hearing. The applicant claimed that his mother advised him that someone had come to the house looking for him. She then cried on the phone so he was not able to get any more information about this.
59. The applicant confirmed that he completed 11 years of secondary school, followed by [courses deleted: s.431(2)]. All courses were conducted in Batticaloa. He attended a short English language course in [Country 3].
60. The applicant stated that he worked on his father’s farm until [2003] when he travelled to the [Country 4] ([Country 4]) where he worked until towards the end of 2009. He returned to Sri Lanka for a holiday in 2007. He thought it would be safe to return to Sri Lanka because he heard that an officer from the [location] near their home had moved. Also there was a peace accord in place. He stayed nearly 2 months and then went back to [Country 3]. He went to [Country 3] originally because of the problems he had in Sri Lanka. His father advised him to go back to [Country 3]. He went back to the same company where he had worked previously – the gas works – however the type of work he did there was different when he returned.
61. The applicant clarified that the problems for him and his family arose because they supported the Tamil National Alliance (TNA) and the Tamil Makkal Viduthalai Pulikal (TMVP) was in their area.
62. When he returned to Sri Lanka at the end of 2009 he had his own business distributing [goods]. His years spent working on his father’s farm educated him in agriculture. He was in touch with agents and farmers and started his business distributing to farmers in the area. He continued this work until he left for Australia. He stated that his business is currently at a standstill as he is not there, his mother is not well and his father is unable to work the business. His capital investment is deteriorating.
63. The applicant confirmed that he was a member of the sports club, that he was also [Official 1] of the club from 2008 to 2010 and was also a [sport deleted: s.431(2)] coach at the club. He confirmed also that he was a member and [Official 2] of the community centre. The main role of the community centre was to provide assistance during natural disasters such as the flood that occurred about 6 months before he left Sri Lanka. He stated that as [Official 2] he kept records of accounts
of the centre. He said that IOM and Red Cross helped at this time also. Sometimes they provided cash funds and the committee of the centre decided how to divide and distribute these funds. The Centre put up a proposal and then the funds were directed through the proposed programs after the proposal was approved. The centre had a program manager who processed the services. The program manager is manager for the Batticaloa District and the district manager has to approve the programs and services.
64. The applicant stated that during his childhood he played for the clubs so his association with them is long term. He clarified that he was [Official 1] from 2009 to 2011. He left the role as he found he could not commit fully to the role of [Official 1] because of his work commitments. He usually caught up on the [Official 1] duties on Saturdays and Sundays.
65. The applicant submitted letters from the sports club and the community centre and stated that he obtained them after he came to Australia as he needed confirmation that what he was stating in his application was true. The Tribunal put to the applicant that the letter from the sports club stated that he was club [Official 1] from 2008 to 2010 and that this was inconsistent with information which indicated that he was in [Country 3] until towards the end of 2009. He responded that this was a typographical error and should read 2009 to 2011
66. The applicant stated that his brother was an active member of the TNA and he spread the ideology and policies of the TNA. The whole family supported the TNA however his brother was the most politically active member of the family. His brother was present during the counting of votes at various elections but the applicant was not. The applicant stated that he helped promote the TNA by helping to organise the venue for their public meetings and by doing some canvassing for votes for the TNA.
67. The applicant stated that he was active in the 2010 Parliamentary elections and in response to questions from the Tribunal the applicant was able to name 3 TNA elected members of parliament in his electoral district. The applicant was able to identify the political parties which formed the TNA alliance; and explained briefly the historical relationship between the TNA and the Liberation Tigers of Tamil Eelam (LTTE). He stated that there is no ongoing relationship between the LTTE and the TNA and that he and his family have never had any links with the LTTE. They have only ever supported the TNA as the TNA represents Tamils and works for the improvement of the lives of Tamils.
68. The applicant stated that the family support for the TNA led to problems with other parties which supported the Sri Lankan government, particularly the Eelam People’s Democratic Party (EPDP). His brother’s life was threatened and his brother fled from Sri Lanka. When he left the EPDP turned their anger on the applicant and his father. The applicant’s father was taken by the Special Task Force (STF) two days after the brother left Sri Lanka. He was released the same day. A week later the STF came looking for his father again. This time the applicant was detained for two days and interrogated. They asked about the applicant’s brother.
69. Since then the applicant has been regularly taken by the STF in roundups because he is branded as a TNA supporter. He was beaten and he always feared for his life. His detention varied from 1 hour to overnight. This happened about 20 times until 2003. He left for [Country 3] in 2003. His father was taken away and detained for about a month during which time he was assaulted and injured. He was always questioned about the applicant’s brother’s activities for the TNA. The applicant’s father and younger brother continued to be harassed and rounded up and questioned. His brother left Sri Lanka in 2006. After this the applicant’s father continued to be targeted and questioned.
70. The applicant states that his family home is near a [location deleted: s.431(2)]. Because of the peace accord the applicant decided it would be safe to return for a holiday. One month later TMVP members who had an office in the village came to the applicant to borrow his motorbike. Every day they came to ask for his bike. He usually gave it to them as he did not want any trouble. One day he refused their request and got into a physical fight. After this his father advised him to go back to [Country 3].
71. The applicant returned to Sri Lanka again in September 2009. There was no longer a TMVP office in the village. The applicant started his business and about 6 months later he won a contract to distribute [goods]. He began his community work with the community centre and became [Official 1] of the sports club as well.
72. The TMVP came to the community centre to ask for assistance in organising their [Meeting 6]. There were [a number of] committee members and the TMVP asked them all to assist. They were told they had to get about 500 people to attend the TMVP [Meeting 6] which was to be held on [date deleted: s.431(2)]. They were also asked to decorate the intended venue on [date deleted: s.431(2)]. The committee agreed to go on the [date deleted: s.431(2)]. The committee had an argument about how to attract 500 people to the [Meeting 6] as the TMVP is not popular. They agreed to hold a public meeting to promote and attract [Meeting 6] participants. The public meeting was advertised. The applicant said he would not be involved. Only a few members turned up on [date deleted: s.431(2)] to decorate the venue.
73. The applicant was approached by TMVP members and accused of being a TNA supporter. [In] March the TMVP came to his home looking for him. His mother told them he was out. He arrived home at about [time deleted: s.431(2)]. and his mother gave him a letter from the TMVP telling him to be at the TMVP office at [time deleted: s.431(2)]. The applicant went to the office as soon as he got home. There was police security at the front of the TMVP office. He gave them the letter and was told to wait outside. He waited for about 1.5 hours. He heard the police saying he was going to be beaten and he should leave. However the applicant remained seated. Then suddenly he was slapped from behind, pushed, and accused of supporting the TNA in the elections in April. The applicant agreed that he did. He continued to be slapped. He was threatened and told that 500 local people must attend the TMVP [Meeting 6]. He then left and he did not attend the [Meeting 6] on the [date deleted: s.431(2)].
74. On the morning of the [date deleted: s.431(2)] buses came to assist with transport however not many people boarded the buses. The next morning a TMVP man
came on a motorbike and told the applicant to go to the TMVP office. The applicant was afraid of being beaten and seriously harmed and did not go to the office.
75. On the [date deleted: s.431(2)] the applicant went to the bank. His father was in the shop when the TMVP came and took his father away. They left a message for the applicant to go to their office. His mother told him to go his sister’s house instead. This was about 12 kms from his home and he walked most of the way and got a lift for the last kilometre. His father was questioned and then released.
76. The applicant stated that the next day the TMVP went to his home and abused his parents and other sister. His mother phoned him at his sister’s house to tell him this. There was a lot of kidnapping of TNA supporters in the area. The family were afraid for him. He left Sri Lanka shortly after this. He moved from his sister’s house to his sister’s sister-in-law’s house where he stayed for several days before leaving Sri Lanka.
77. The Tribunal questioned the applicant about the short period of time in which he was able to make arrangements to depart Sri Lanka. He responded that he had been saving to go back to [Country 3] but it took a long time to make these arrangements and the trip did not eventuate. The agent helping him told him about the option of going to Australia instead. His brother in law got details of a smuggler and made contact with him by phone. The applicant went to a pre- arranged meeting place. The smuggler demanded a lot of money and the applicant could not afford it. He got some money by pawning his sister’s jewellery and his mother’s gold chain and he had some money from the business. He paid this to the smuggler. The balance was paid later. The boat left the day after he paid money to the smuggler.
78. The applicant stated that he did not want to be away from his parents but he had no choice. He fears his life is in danger in Sri Lanka because he is Tamil and because he supports the TNA. His mother was threatened a couple of months ago and she is not well. She is very anxious about him.
79. The applicant stated that there is independent information to support his claim that TNA members and supporters are being abused in Sri Lanka. He is from a Tamil family and he supports the TNA and for these reasons he is discriminated against and is constantly harassed. They try to force him to support the pro-government political party. He is afraid of what they will do to him if he goes back. He fears he would be physically assaulted or even killed. He wants the Australian government to go to Sri Lanka and find out the truth. They should speak with Tamil Members of Parliament to find out the truth about the problems and fears faced by Tamils in Sri Lanka.
Independent Country Information
TMVP [Meeting 6]
80. [Information deleted: s.431(2)]. 1 2 3
1 [Information deleted: s.431(2)]
81. [Information deleted: s.431(2)] 4
82. [Information deleted: s.431(2)] 5
83. [Information deleted: s.431(2)]
Treatment of Tamils who refuse to support the TMVP
84. The TMVP has two factions, one led by Vinayagamoorthy Muralitharan (aka Karuna Amman), and the other by Sivanesathurai Chandrakanthan (alias Pillayan). A May 2010 Department of Foreign Affairs and Trade (DFAT) advice provides background information on the party, and indicates that “domestic and international observers have connected both groups to incidents of violence in the east”.
85. The TMVP was formed by Vinayagamoorthy Muralitharan (aka Karuna Amman), who was a high ranking LTTE Commander in the east until he broke away from the LTTE to join the Government in 2004, taking several thousand cadres with him. Initially known as the Karuna Faction, the group is understood to have played a crucial role in supporting the Government military campaign which regained the eastern province from the LTTE in 2007. The TMVP was subsequently registered as a political party representing the Karuna Faction. While Karuna was out of the country for an extended period, his deputy Sivanesathurai Chandrakanthan (alias Pillayan) was appointed Chief Minister of the Eastern Province in 2008. When Karuna returned to Sri Lanka, tensions with Pillayan saw the group split into two factions, with Pillayan remaining the main TMVP representative and the Karuna Faction re-emerging. Karuna joined the Sri Lanka Freedom Party (the ruling party of President Rajapaksa) with an estimated 2000 of his followers in 2009. He currently holds the position of Deputy Minister of Resettlement in the current Sri Lankan UPFA government.
86. The Karuna Faction remained armed during the conflict period, citing threat from the LTTE. The TMVP formally disarmed in March 2009, although some have alleged that elements of the TMVP retain arms. The Karuna Faction has not undergone any formal process of disarming. Domestic and international observers have connected both groups to incidents of violence in the east and both are reported to continue to work in coordination with elements of the security forces in some respects. Both the TMVP and Karuna Faction are predominantly based in the east, with the Karuna Faction reported to be particularly active in Batticaloa and Ampara Districts. Since the end of the military conflict, the Karuna Faction has developed a presence in Jaffna, Mannar, Vavuniya and the Vanni region. Currently, Karuna is understood to have about 1,000 active cadres supporting him. Pillayan is reported to have a party support base of around 1,000-1,500, with several hundred of these remaining armed. 6
2 [Information deleted: s.431(2)] 3 [Information deleted: s.431(2)] 4 [Information deleted: s.431(2)] 5 [Information deleted: s.431(2)] 6 Department of Foreign Affairs and Trade 2010, Paramilitary groups in post-war Sri Lanka , 20 May
87. A Danish Immigration Service report on a fact-finding mission to Colombo in June-July 2010 refers to the comments of sources regarding the situation for Tamils in conflict with or in opposition to the TMVP. The director of an anonymous local NGO said “returnees from abroad affiliated with TMVP opposition could face a problem” and “people in opposition to the TMVP would keep a low profile in the East,” as there was an ongoing struggle between Karuna’s and Pillayan’s armed groups. The Norwegian Embassy also mentioned that “paramilitary groups will not target the political opponents directly, but work through the government structure.” The embassy said it was reported during the election campaign “that political opponents including their family members were threatened and warned, but this was not a phenomenon which was limited to the East.” The director for a human rights organisation commented that “people in opposition to Karuna’s armed group could be in trouble.” An official attached to a human rights organisation, when asked whether opponents of the TMVP would be at risk in the East, said, however, “that today it would not be a major problem because the TMVP does not have much power.” According to a leading human rights activist, a person targeted in the East by TMVP (Pillayan) might “seek protection in Colombo, as the TMVP (Pillayan) would not have the power to target people outside the East”, while the director of the anonymous local NGO said “it would be very difficult to seek protection from the police because they ‘walk hand in hand’ with the paramilitary groups.” 7
88. More recently, an academic source referred to in a February 2012 Immigration and Refugee Board of Canada response to information request, said in January 2012 that the Karuna faction members were still armed, although they claimed otherwise, and “the faction continues to operate in northern and eastern Sri Lanka, threatening the lives of Tamil citizens or the lives of their families”. He “also indicated that Tamils ‘generally do not ignore the requests’ of the factions because they are capable of doing ‘anything to them’”, and “that, while the Pillayan group uses ‘soft strategies’ to convince Tamils to support them, the Karuna faction is more ‘aggressive’ in getting support”. The Karuna faction’s targets included “anyone that opposes the SLFP [Sri Lanka Freedom Party], regardless of whether they are Tamil or Sinhalese, as well as Muslims in the East, particularly in Batticaloa, Ampara, and Trincomalee, where there are substantial Muslim populations with ‘significant control over land’”. Another academic said, however, that Karuna “is ‘no longer involved in any militancy,’ (5 Jan. 2012) and, more generally, that paramilitary groups no longer operate in Sri Lanka”. 8
89. The International Crisis Group (ICG), in a report from March 2012, indicates that Karuna and Pillayan had “been given various forms of power in exchange for their help in policing the Tamil population in the east”, although it is also stated in the report that “Tamil parties aligned with the government during the war have been
7 Danish Immigration Service 2010, Human Rights and Security Issues concerning Tamils in Sri Lanka, Report from Danish Immigration Service’s fact-finding mission to Colombo, Sri Lanka, 19 June-3 July 2010 , October, pp. 36-37 8 Immigration and Refugee Board of Canada 2012, Sri Lanka: The Tamil Makkal Viduthalai Pulikal (TMVP) and Karuna factions; their relationship with each other; reports concerning their treatment of Sinhalese and Tamil citizens; whether they are still active as paramilitary groups , LKA103950.E, 17 February < http://www.irb-cisr.gc.ca:8080/RIR_RDI/RIR_RDI.aspx?id=453812&l=e > Accessed 22 August 2012
offered no real political power.” 9 Another ICG report from July 2011 refers to the government, since the early 1990s, using “former Tamil militants, realigned with it against the LTTE” as part of its counter-insurgency strategy, most notably Douglas Devananda’s Eelam People’s Democratic Party (EPDP) and Karuna’s faction. Both Devananda and Karuna became government ministers, and the report indicates that “[t]his has had grave consequences for Tamil civilians; both groups are implicated in extrajudicial killings, abductions, extortion, prostitution and child trafficking (and, at least with respect to Karuna, recruitment of child soldiers).” The report also refers to a continuing violent rivalry between Karuna and Pillayan. 10
90. According to Amnesty International’s 2012 annual report on Sri Lanka, “political activists, returning displaced people, and former LTTE members were targets” of “gangs linked to the security forces and government-aligned political parties,” which included the Tamil People’s Liberation Tigers. The gangs “were blamed for robberies, abductions, rapes, assaults and murders in Jaffna, eastern Sri Lanka, and increasingly in other parts of the country.” 11 Another Amnesty International report refers to the Tamil People’s Liberation Tigers as the Tamil Makkal Viduthalai Pulikal or TMVP. 12
91. The US Department of State (USDOS) report on human rights practices in Sri Lanka for 2011 also indicates that during the year, unknown actors suspected of links with pro-government paramilitary groups including the TMVP associated with both Karuna and Pillaiyan, “committed killings and assaulted civilians.” According to the report:
The overall number of extrajudicial killings decreased from the previous year. Nevertheless, during the year, and particularly in the beginning of the year, unknown actors suspected of association with pro-government paramilitary groups committed killings and assaulted civilians. These included the Tamil Makkal Viduthalai Pulikal, associated with former LTTE eastern commander and now Deputy Minister of Resettlement Vinayagamurthi Muralitharan, alias “Karuna,” as well as Sivanesathurai Chandrakanthan, alias “Pillaiyan,” in the east, and the Eelam People’s Democratic Party (EPDP), led by Minister of Social Services and Social Welfare Douglas Devananda, in Jaffna. These and other pro-government paramilitary gangs and parties also were active in Mannar and Vavuniya. All of these groups endeavoured to operate political organizations, some with more success than others, and there were persistent reports of close, ground-level ties between paramilitary groups and government security forces. Whereas these groups served more of a military function during the war, often working in coordination with security forces, during the year they increasingly took on the characteristics of criminal gangs as they sought to solidify their territory and revenue sources in the post-war environment. 13
9 International Crisis Group 2012, Sri Lanka’s North I: The Denial of Minority Rights , Asia Report No. 219, 16 March, p. 12 < http://www.crisisgroup.org/en/regions/asia/south-asia/sri-lanka/219-sri-lankas-north-i-the- denial-of-minority-rights.aspx > Accessed 20 March 2012 10 International Crisis Group 2011, Reconciliation in Sri Lanka: Harder than Ever, Crisis Group Asia Report No. 209, 18 July, pp. 3-4 and footnote 13 11 Amnesty International 2012, Annual Report 2012 – Sri Lanka , 24 May 12 Amnesty International 2011, When will they get justice? Failures of Sri Lanka’s Lessons Learnt and Reconciliation Commission , ASA 37/008/2011, September, endnote 28
TMVP relationship with TNA members and supporters [in] 2012 and onwards
92. No information was located to confirm or deny that TMVP members would threaten, harass and beat people who refused to attend or assist in the organising of the [Meeting 6] in [date deleted: s.431(2)]. No information was located specifically relating to whether Tamil Makkal Viduthalai Puligal (TMVP) officials send threatening letters or make phone calls to people, demanding that they visit the TMVP office.
93. The TMVP has a well-documented history of abductions, forcible recruitment (including of children), extortion and extra-judicial killings, including in the Batticaloa district of Eastern Province. 14 While recent sources indicate that the TMVP continues to be implicated in abductions, killings and criminal enterprises, 15 only limited recent sources suggest that forcible recruitment by pro-government paramilitaries continues in Sri Lanka. The Danish Immigration Service (DIS) quoted “an anonymous source” in 2010 as stating that paramilitary groups “are now engaged in criminal activities, including kidnappings and abductions for ransom. Moreover, the paramilitary groups are forcefully recruiting young people”. The DIS also quoted a “diplomatic mission” in Colombo which was aware of reports of “forced recruitment in Ampara district by the former regional commander Iniya Barrathi who was part of the TMVP breakaway faction”. 16 Iniya Barrathi is associated with the Karuna group.
94. The asylum-seeker lobby group Still Human Still Here challenges the UK Home Office argument that ongoing paramilitary abductions in Sri Lanka are primarily financially motivated (i.e. for ransom). 17 Still Human Still Here lists a number of sources (primarily from the pro-Tamil Tamil Net website), which indicate that paramilitaries in Sri Lanka continue to commit politically motivated abductions. However, the sources provided suggest that such abductions are designed to silence or intimidate active members of the political opposition, rather than people unwilling to join them. None of the sources indicate that abduction for purposes of forcible recruitment continues. 18
95. The UK Home Office position would appear to be based on statements made in Amnesty International’s Annual Report 2011 - Sri Lanka . In that report, Amnesty International states the following: Armed Tamil groups aligned with the government continued to operate in Sri Lanka and commit abuses and violations, including attacks on critics, abductions for ransom, enforced
14 RRT Country Advice 2012, Country Advice LKA41254 , 14 November; RRT Country Advice 2012, Country Advice LKA41340 , 9 November; RRT Country Advice Service 2010, Country Advice LKA36970 , 20 July; RRT Research & Information 2009, Research Response LKA35100 , 24 July 15 US Department of State 2012, Country Reports on Human Rights Practices 2011 – Sri Lanka , 24 May, Section 1a; Amnesty International 2012, Annual Report – Sri Lanka , 24 May; Amnesty International 2011, When Will They Get Justice? Failures of Sri Lanka’s Lessons Learnt and Reconciliation Commission , September 16 Danish Immigration Service 2010, Human Rights and Security Issues concerning Tamils in Sri Lanka, Report from Danish Immigration service’s fact-finding mission to Colombo, Sri Lanka, 19 June-3 July 2010 , October, pp.13,36Ampara is approximately 50 kilometres south of Batticaloa. 17 UK Home Office 2012, Operational Guidance Note: Sri Lanka , April, p.14, Section 3.6.27Attachment> 18 Still Human Still Here 2012, A commentary on the April 2012 Sri Lanka Operational Guidance Note , 3 May, UNHCR Refworld < http://www.unhcr.org/refworld/docid/4fd9c9c62.html > Accessed 21 November 2012
disappearances and killings…Enforced disappearances and abductions for ransom carried out by members of the security forces were reported in many parts of the country, particularly in northern and eastern Sri Lanka and in Colombo. 19
96. The Department of Foreign Affairs and Trade (DFAT) notes that while the TMVP formally disarmed in March 2009, “it is also likely that at least some elements of the TMVP retained their arms”. 20 According to Tamil Net , a person known as Thiraviyanathan (alias Jeyam) is the current head of the TMVP’s armed wing in Batticaloa district. 21
Election Violence
97. An article in The Guardian, 24 January 2010, reports on the District Parliamentary Elections held in 2010 as follows.
The run-up to the vote has already been marred by violence. Police say at least four people have been killed and hundreds wounded in clashes between the factions and on Friday the house of an influential opposition figure was bombed. Fonseka, who decided to challenge Rajapaksa after complaining of being sidelined, has dismissed the president as a "cardboard king". Rajapaksa's supporters, meanwhile, have portrayed Fonseka as a dictator in the making, comparing him to Idi Amin, the brutal Ugandan military leader. Amid the name-calling, there lurks the real fear that violence will escalate if the result is disputed. With the Sinhalese vote expected to be split, both men have courted the Tamil minority, who make up 12% of the population – and who bore the brunt of the bloody campaign to defeat the Tigers. Sri Lanka's main Tamil party has thrown its weight behind the former general despite his ruthless conduct of the campaign against the Tigers. The Tamil National Alliance, the main Tamil political party, considers Rajapaksa, who is seeking a second six-year term, the greater evil. The TNA has said it could not back Rajapaksa because of the government's human rights abuses and its inability to achieve reconciliation between the Sinhalese and minority Tamil communities following the end of the 25-year civil war. 22
98. Sivanesathurai Chandrakanthan (alias Pillayan), the political leader of the TMVP, is the current Chief Minister of Eastern Province. 23 In November 2012, the International Crisis Group (ICG) stated that Pillyan and the TMVP do not enjoy popular support among the Tamils of Eastern Province, primarily because of their history of “serious human rights violations” and for having “abandoned the national cause”. Rather, Sri Lanka’s Tamils’ political allegiances are presently
19 Amnesty International 2011, Annual Report – Sri Lanka , 13 May, p.302 20 DIAC Country Information Service 2010, SRI LANKA: Paramilitary groups in post-war Sri Lanka , (Sourced from DFAT advice of 20 May 2010), 21 May 21 ‘Paramilitary terrorizes Vaakarai, instructs people to vote for UPFA’ 2012, TamilNet , 26 July
invested in the Tamil National Alliance (TNA). 24 A large corpus of sources reports that both the TMVP and the Karuna group are increasingly implicated in intimidation of TNA candidates, officials, and locals suspected of intending to vote for them, in Eastern Province/Batticaloa. 25
99. Country Advice obtained on 26 November 2012 provides information on the current security situation in Batticaloa -Eastern Province - and indicates that TNA supporters are currently being targeted for adverse treatment by the TMVP and Sri Lankan authorities. 26 An article from Colombopage dated 17 September 2012 states that five Tamil councillors fled from Eastern Province due to threats; they are reported to have gone to the capital Colombo “in fear of their lives”. 27
100. The Sunday Times reported on 26 August 2012 that the Tamil National Alliance (TNA) were contesting the elections of 8 September 2012 in the East for the first time in the 22-year provincial election history. According to The Sunday Times , TNA candidates and supporters had been the victims of a series of incidents, threats and intimidation, allegedly from supporters of former Chief Minister and TMVP leader Sivanesathurai Chandrakanthan who was contesting on the ruling party United People's Freedom Alliance ticket. 28 The Batticaloa district recorded the highest number of violent incidents in the run-up to the 8 September 2012 polls. Of a total of 27 incidents, 13 have been from Batticaloa district. However the TNA parliamentarian, Pon Selvarasa, who led the campaign in the Batticaloa district, stated that TNA supporters have been assaulted and subjected to threats and intimidation, while propaganda material has been seized and vehicles stoned; he noted that the police have acted promptly in some cases once a complaint is lodged. 29
101. The Sunday Leader reported on 17 July 2012 that two incidents took place on 7 July 2012 when the head of a dead dog was stuck on the gate of an election candidate and another candidate had his front yard flooded with sewage water. The
24 International Crisis Group 2012, Sri Lanka: Tamil Politics and the Quest for a Political Solution , Crisis Group Asia Report N°239, 20 November 25 ‘Paramilitary groups threaten TNA candidates in Batticaloa district’ 2012, Tamil News Network , source: Tamil Net , 22 July < http://www.tamilnewsnetwork.com/2012/07/22/paramilitary-groups-threaten-tna- candidates-in-batticaloa-district/ > Accessed 22 August 2012; ‘Paramilitary terrorise and intimidate Batticaloa voters’ 2012, Tamil Guardian , 27 July
TNA MP Senathirajah said “we’re not sure who is responsible for these crimes but we believe these are planned attacks to build up fear”.’ 30
102. Tamil Net reported on 26 July 2012 that members of the TMVP had been threatening voters in Batticaloa with eviction if they voted for the TNA. 31 The same source stated on 21 July 2012 that the Sri Lankan military had threatened TNA candidates. 32
103. In September 2012, elections were conducted to elect representatives to provincial councils in Eastern, North Central and Sabaragamuwa Provinces of Sri Lanka. Sri Lanka’s The Sunday Times described the election climate in Eastern Province as ‘volatile’, and reported that a number of pre-election law violations were recorded in the province. 33 TNA/ITAK leader R. Sampanthan wrote to President Rajapaksa, complaining that persons working for the governing United Peoples Freedom Alliance (UPFA) engaged in intimidation of opposition candidates and supporters. Among his complaints, Sampanthan reported that: “[c]andidates and supporters of political parties opposed to the U.P.F.A…. and vehicles in which they travelled have been attacked”; “personnel claiming to be intelligence personnel have questioned persons engaged in electoral activities on behalf of political parties opposed to the U.P.F.A…. and warned them that they could face unpleasant consequences after the elections”; and “persons identified as the “Blue Brigade” have asked for the polling cards of voters, inspected the same, and warned them that they could face unpleasant consequences if they did not support the ruling party”. 34
104. The Tamil nationalist website Eelam Nation accused Basil Rajapaksa, Sri Lanka’s Minister for Economic Development and brother of President Mahinda Rajapaksa, of deploying “more than one thousand men” to intimidate “Tamils and Muslims in the three districts of the eastern province namely Ampaarai, Batticaloa and Trincomalee” during September 2012 local elections, creating “a climate of fear among voters”. Eelam Nation accused UPFA workers of “openly asking voters not to cast their votes for TNA and the SLMC and warning that their consequence would be dire if they did not vote for the ruling UPFA candidates”. 35 TamilNet 36 reported similar stories of voter intimidation. 37
30 Sri Lanka: Pre-election violence in Jaffna fear among voters’ 2011, The Sunday Leader , 17 July < http://www.thesundayleader.lk/2011/07/17/pre-election-violence-in-jaffna-creates-fear-among-voters/ > Accessed 14 August 2012 31 ‘Paramilitary terrorizes Vaakarai, instructs people to vote for UPFA’ 2012, Tamilnet , 26 July
33 ‘Brisk voting in Eastern Province, lighter turnout in other provinces’ 2012, The Sunday Times , 9 September
105. TamilNet reported that Basil and Namal Rajapaksa, brother and son of the President respectively, travelled to Trincomalee and Batticaloa in September 2012 to “strike a deal between the TNA councillors and the Rajapaksa regime”. TamilNet claims that “[t]he Colombo operatives began to threaten the TNA councillors as they were not able to win the ‘hearts and minds’ of the Tamil people even after promising 50 million rupees in cash to each councillor, a house in Colombo and a vehicle” in return for support for the ruling UPFA. TamilNet claims that some TNA councillors have “gone into hiding”, fearing “abduction and intimidation”. 38
106. Lankasri News reported in August 2012 claims that supporters of the current Chief Minister of Eastern Province Sivanesathurai Chandrakanthan (aka Pillyan) carried out an attack against a TNA candidate for Vaakarai in Kalkuda, resulting in his hospitalisation. 39
107. In July 2012, TamilNet reported that paramilitary groups in Batticaloa “threatened candidates who are being fielded by the Tamil National Alliance (TNA) in the forthcoming elections to the Eastern Provincial Council” in July 2012. 40
108. Similarly, the Tamil Guardian reported that cadres from the Tamil Makkal Viduthalai Pulikal (TMVP) paramilitary intimidated people intending to vote TNA in council elections in Batticaloa, Eastern Province in July 2012. 41
109. In September 2012, the Campaign for Free and Fair Elections (CaFFE) reported that TNA supporters were accused of intimidating voters in Batticaloa District during the election campaign for the Eastern Provincial Council. 42
FINDINGS AND REASONS
110. The applicant travelled to Australia by boat and sought asylum. The Tribunal accepts, as did the delegate, that the applicant is a [age deleted: s.431(2)] Tamil male from Batticaloa in the east of Sri Lanka and has assessed his claims against Sri Lanka as his country of nationality.
36 According to the International Crisis Group, the editors of Tamilnet are linked to the ‘Nediyavan’ faction of the LTTE. Tamilnet “frequently criticises the TNA for moderation allegedly imposed by the Indian and U.S. governments”, and “provides regular and positive coverage to domestic Tamil nationalist critics, particularly those associated with the TNPF [The Tamil National People’s Front]”. See International Crisis Group 2012, Sri Lanka: Tamil Politics and the Quest for a Political Solution , Crisis Group Asia Report N°239, 20 November 37 ‘Rajapaksa’s ministers threaten Tamil voters in East’ 2012, TamilNet , 8 September
111. The Tribunal finds that the applicant is outside his country of nationality as required by Article 1A(2). There is nothing in the evidence before the Tribunal to suggest that the applicant has a legally enforceable right to enter and reside in any country other than Sri Lanka. Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.
112. The Tribunal has to assess whether or not there is a “real chance” that the applicant will suffer “persecution” in the reasonably foreseeable future in Sri Lanka. The applicant states that he fears that if he had to return to Sri Lanka he would again be a victim of harassment, intimidation, pressure to support the TMVP, and physical assault The Tribunal has considered whether or not there is a real chance that the harm feared by the applicant will occur in the reasonably foreseeable future should he return to Sri Lanka; whether the harm feared involves serious harm; whether the harm would involve systematic and discriminatory conduct, essentially and significantly for a Convention reason; and whether or not the government in Sri Lanka would fail in its duty to protect the applicant from the harm feared.
113. The Tribunal had concerns that the applicant had embellished some aspects of his claims. For example the applicant stated that his brother fled Sri Lanka in the year 2000 because of political problems and that after this he, his [brother] and his father were harassed, intimidated, detained and beaten in detention. He claims that he was detained and beaten by members of the Special Task Force (STF) in Batticaloa because of his brother’s known opposition to the Sri Lankan government. He claims that he was regularly taken (more than 20 times) by the STF in roundups and is branded as a TNA supporter. The applicant claims that his younger brother left Sri Lanka in 2006 and he travelled to [Country 3] [in] October 2003 in order to avoid further mistreatment. The Tribunal notes that the applicant lived in an area which was subject to heavy fighting during the recent war in Sri Lanka and accepts that, as a young Tamil male, it is plausible that he would have been subject to adverse treatment locally by the Sri Lankan forces during the war until his departure in October 2003. However, the Tribunal also notes the applicant’s evidence regarding the various jobs he held in [Country 3] between October 2003 and September 2009. Also notable is the fact that the applicant was able to obtain a Sri Lankan passport in his own name without any difficulty and was able to depart and re-enter Sri Lanka in October 2003, in 2007 and in late 2009, also without any difficulty.
114. In the Tribunal’s view it is reasonable to assume that motivation for the applicant’s travel and stay in [Country 3] would include the employment and financial opportunities he found in [Country 3]. Whilst the Tribunal accepts that the applicant, as a young Tamil male, was subjected to being rounded-up and detained prior to 2003, as he was able to obtain a passport and depart and re-enter Sri Lanka as he did without any difficulty, the Tribunal finds that the applicant’s problems with the Sri Lankan authorities were localised at this time. It is evident that he did not have a political profile that brought him to the adverse attention of the Sri Lankan authorities nationally such that he would have been detained and harmed when attempting to leave and re-enter the country in 2003, 2007 and 2009.
115. The applicant stated that, in spite of his fears of the STF, he returned to Sri Lanka from [Country 3] in April 2007. He claims that he returned then as there was a peace accord in place and he thought it would be safer. The Tribunal notes various
sources of information, including a report in The Guardian on 22 February 2002, which states that a cease-fire was declared in Sri Lankan in December 2001, and a ceasefire agreement signed with international mediation in 2002. An outline of the Sri Lankan civil war provided by Wikipedia, in which various authorities and newspaper articles are cited, indicates that hostilities were renewed in a limited way in late 2005 and then the conflict escalated again when the Sri Lankan government launched a number of major military offensives against the LTTE beginning in July 2006, driving the LTTE out of the entire Eastern province of the island. Then in 2007, the government shifted its offensive to the north of the country, and formally announced its withdrawal from the ceasefire agreement on 2 January 2008.
116. The cease fire remained in place from 2002 until January 2008. There was significant fighting occurring in the eastern province in 2006 until the LTTE were driven out of the Eastern province in 2007. The main focus of the fighting then took place in the northern part of Sri Lanka in 2007. Fighting in the Eastern district, including Batticaloa, would thus have significantly diminished in 2007. The Tribunal accepts that the applicant would have felt it was safer to return to Batticaloa in 2007 for this reason. He remained in Batticaloa until July 2007 when he returned to [Country 3] and his employment at the [workplace deleted: s.431(2)]. The applicant then returned to Sri Lanka after the war ended in late 2009.
117. The applicant claims that after he returned to Sri Lanka in late 2009 he established a successful business distributing [goods] in the local area, and that he became involved in several community organisations. He states that he became a committee member of a local community centre and of a local sports club. The applicant has provided documentary evidence supporting these claims. The Tribunal notes that it is relatively easy to obtain documents and letters of this nature in Sri Lanka and that they may not be genuine, particularly given the incorrect dates provided in one of the letters. However the applicant has provided consistent testimony regarding his business and community activities and was able to speak knowledgeably on these activities at the hearing. Accordingly, the Tribunal accepts the applicant’s evidence with regard to his business and his involvement in the local community centre and sports clubs.
118. The applicant claims that he and his family are supporters of the Tamil National Alliance (TNA). He states that his brother was very active politically and this brought adverse attention of the TMVP to the applicant and his family. The applicant was able to demonstrate knowledge of the history and composition of the TNA and identify TNA elected Members of Parliament. Whilst the Tribunal has some concerns about the veracity of the applicant’s claimed level of involvement in the TNA, the Tribunal accepts that the applicant is a supporter of the TNA and would have voted for the TNA at election time.
119. The applicant claims that members of the TMVP pressured him and the other committee members of the community centre to promote and support the TMVP [Meeting 6] and ensure that 500 people from their area attended the [Meeting 6].
120. Independent information referred to paragraphs 79-81 above confirms that the TMVP held a national [Meeting 6] on [date deleted: s.431(2)]. However no
information was located which confirmed or refuted the applicant’s claim that the TMVP attempted to coerce Tamils in Batticaloa into supporting the [Meeting 6]. The Tribunal was also unable to confirm or refute through independent information the applicant’s claim that the TMVP sent threatening letters to people demanding that they attend their office in relation to the [Meeting 6].
121. However independent information referred to in paragraph 96 confirms the applicant’s claim that there was a lack of popular support by Tamils for the TMVP and that the TMVP intimidated and harassed people who supported the TNA and intended to vote for the TNA in Batticaloa. There are also some reports indicating that the TMVP forcibly recruited members (see paragraph 92 above) although other reports contradict this.
122. Information from the Danish Immigration Service referred to in paragraph 82 supports the applicant’s claim that as a person known to support the TNA and not cooperate with the TMVP he was subject to harassment, intimidation, threats and assault. Information from the Canadian IRB (see paragraph 87) notes that the Karuna faction of the TMVP in Batticaloa is armed and aggressive and that generally people do not ignore their requests for support. This is confirmed by reports from the International Crisis Group, Amnesty International, and the United States Department of State who report that the TMVP are involved in killing, abduction, extortion and other crimes against the Tamil civilian population in the Eastern district. It is reported that the TMVP particularly target those politically opposed to them as well as returning displaced people. (see paragraphs 88-95).
123. After carefully assessing all the evidence before it the Tribunal accepts that that the applicant was pressured to support the TMVP [Meeting 6] and that he was subject to harassment, intimidation, and physical assault when he did not comply with this request.
124. The Tribunal considered the applicant’s claim that he feared further political pressure, physical assault and that he could be killed if he returns to Sri Lanka. The Tribunal notes independent reports referred to in paragraphs 96-107 regarding the elections held in September 2012 in Batticaloa. It is evident from these reports the TMVP have engaged in intimidation, harassment, seriously threatening behaviour and physical attacks against TNA supporters and members in Batticaloa. It is clear that their intention is to create a climate of fear in order to coerce people to vote for and support the TMVP. It is clear that this is an ongoing problem and that the TMVP are likely to continue to threaten, harass, intimidate and attack TNA supporters in Batticaloa in the reasonably foreseeable future. Given that the applicant is known to be a TNA supporter and that he has attracted the adverse attention of the TMVP for this reason in the past, the Tribunal finds that the applicant’s claims of fearing harm from the TMVP in the reasonably foreseeable future are well-founded.
125. The Tribunal then considered whether or not the treatment the applicant fears amounts to Convention based persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Serious harm includes a threat to life or liberty, significant physical harassment or ill-treatment (s.91R(2)) of the Act.
126. The Tribunal finds that the harm the applicant fears is serious (s.91R(1)(b), s.91R(2)), and the essential and significant reason for it is his political opinion (s.91R(1)(a)). Furthermore it is systematic and discriminatory conduct in that it is not random or arbitrary but targeted at Tamils who support the TNA (s.91R(1)(c)). The Tribunal considered whether or not the applicant would be able to access protection from the harm feared. The Tribunal notes the information in paragraph 98 which refers to TNA parliamentarian, Pon Selvarasa, as stating that TNA supporters have been assaulted and subjected to threats and intimidation, propaganda material has been seized and vehicles stoned, and that the police have acted promptly in some cases once a complaint is lodged 43 However, given the very close relationship between the TMVP and the Sri Lankan government, the Tribunal is not satisfied that the applicant would be able to access effective protection from the harm feared.
127. Accordingly the Tribunal finds that the applicant faces a real chance of persecution for reasons of his political opinion in the reasonably foreseeable future in Sri Lanka.
128. The Tribunal considered whether relocation to another part of Sri Lanka is a reasonable option for the applicant. However, given that the agents of persecution in this case are the TMVP, a paramilitary organisation and political party which supports the Sri Lankan State, and given the relatively small size of Sri Lanka, the Tribunal accepts that the applicant faces persecution throughout Sri Lanka. After assessing all the evidence, the Tribunal is satisfied that the applicant has a well- founded fear of persecution in the reasonably foreseeable future in Sri Lanka and meets the criterion at s.36(2)(a).
CONCLUSIONS
129. The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
130. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
43 A poll for politicos – not for people’ 2012, The Sunday Times , 26 August