The Authority's decision
20 On 4 October 2016, the Authority affirmed the delegate's decision to refuse to grant the appellant a protection visa. In its statement of reasons the Authority identified the information to which it had regard, which included the material given to it by the Secretary pursuant to s 473CB of the Act. The Authority also considered whether pursuant to s 473DD of the Act it could have regard to the further material that had been provided to the Authority by the appellant's representative. In relation to that further material, the Authority stated that -
(1) the appellant's representative's submission dated 29 August 2016 was not "new information", and the Authority had considered it;
(2) the appellant's statutory declaration dated 28 August 2016 was not "new information", and the Authority had considered it;
(3) the first letter from the psychologist dated 18 October 2014 was provided to the Department prior to the delegate's decision, and therefore was not "new information", and the Authority had considered it;
(4) the country information that had been attached to the appellant's representative's submission dated 29 August 2016 was "new information", which did not contain credible personal information and for which there were not exceptional circumstances to justify that it be considered, and so the Authority did not consider it; and
(5) the psychologist's report dated 3 September 2016, was "new information" containing credible personal information not previously known, and had it been known, may have affected the delegate's consideration of the appellant's claims. There were exceptional circumstances to justify that it be considered and the Authority considered it.
21 In relation to the Authority's decision to consider the psychologist's report dated 3 September 2016, the Authority stated at [7] (inter alia) -
… Because the information is from the applicant's treating psychologist and is relevant to his capacity to provide information about his circumstances, I am satisfied that the information in the report is credible personal information which was not previously known and, had it been known, may have affected the consideration of his claims. Because of what the report reveals about the applicant's psychological condition I am satisfied that there are exceptional circumstances which justify its consideration.
(Emphasis added.)
22 The Authority then summarised the appellant's claims for protection. At the outset of its summary, the Authority stated that "[t]here are significant inconsistencies in the [appellant]'s claims as presented at different stages of processing." The Authority summarised the appellant's claim that he had witnessed the shooting in April 2006, including by setting out a detailed account of what the Authority characterised as inconsistencies in the appellant's various accounts of that event given at different stages. The Authority also summarised the appellant's claims that he was detained by the SLA, that he had links with the LTTE, that he acted as an informant for the SLA, and in relation to his family members.
23 Under the heading "Factual findings", the Authority was critical of the appellant's accounts, stating -
23. It is clear from the summary of the applicant's claims set out above that he has provided a most unsatisfactory account of the circumstances which he claims led him to leave Sri Lanka. There are significant discrepancies between his own accounts presented at different times, and between his version of events and an independent media report that he himself submitted in support of his claims. Aspects of his account are, in my view, highly implausible.
24. I accept that the applicant is not well educated, although he states that he attended school for nine years and it is not evident that he is illiterate, as his representative submitted at the SHEV interview. I accept that he and his family suffered displacement as a result of the war and that as a resident of Jaffna, he probably witnessed traumatic events over the war years. I accept that, as noted in the psychological report, he suffers from depression, anxiety and a range of other psychological conditions which have resulted in "deficits in his concentration, retention and memory and attention span". I also note, however, that the psychologist's report itself contains discrepancies as to the applicant's circumstances - for example, it states that the applicant's father was killed by the army, whereas he stated in his application that his father died of natural causes; the report also indicates that three of the applicant's brothers have fled - one to India, one to Switzerland and one whose whereabouts is unknown, whereas in the information provided to the Department he indicates that only two brothers have left. While I accept the diagnosis, I do not accept the report as independent corroboration of the applicant's claims, or as evidence of the circumstances which led to the applicant's conditions. I accept that the applicant's circumstances in Australia have been difficult, although he has had the benefit of legal representation in relation to both his 2013 protection visa application and his SHEV application.
25. I have taken these factors into account in assessing the applicant's claims, but consider that much of his evidence is, at best, unreliable, and I do not accept many of his claims.
26. Although the applicant says that the interpreter at the arrival interview was rude and told him to speak briefly, I consider it significant that what the applicant said at the two initial arrival interviews about the reasons for his departure from Sri Lanka is broadly consistent with the account in the Tamilnet report which he submitted in support of his 2013 protection visa application. Given the problems with his later evidence about the claimed shooting incident, I prefer this earlier version of events. I find that the four people named in the Tamilnet article, whose names are consistent with those provided by the applicant in his subsequent statutory declarations, were murdered by the SLA, as reported by Tamilnet, in open land near the army camp. I do not accept that the applicant witnessed the murders of four auto-rickshaw drivers at the stand where he and several drivers were waiting. I consider it possible that the auto-rickshaw driver reported in the article as having been stopped by the SLA when he went looking for the missing persons was, in fact, the applicant, consistent with his claim in the entry interview that he was stopped by the SLA when he visited the site where the people were shot the following day.
27. It is not clear why the applicant's representative submitted that the Tamilnet report was unreliable and should be given no weight, especially when it was submitted by the applicant himself in support of his claims. In any event, as noted above, there are numerous problems with the applicant's later evidence about the shootings. Despite his representative's arguments to the contrary at the SHEV interview, it is clear that the applicant has provided different evidence as to the number of people who were shot at different times - at the entry interviews he said five people; in his statutory declarations he said four drivers and a passer-by; at the SHEV interview he said that three of his driver friends and a passer-by were shot, and when the delegate put the discrepancies to him, he responded that five or six people were killed but he only mentioned the three friends who he knew. As noted above, the initial claim that five people were killed is consistent with the Tamilnet report, which is also consistent as to the names of the victims provided by the applicant.
28. Information that was considered by the delegate indicates that a number of auto-rickshaw drivers were shot around the Jaffna area in 2006. Interestingly, there are no reports in the information provided by the applicant or considered by the delegate of an incident similar to the one now described by the applicant - that is, where four drivers and a passer-by were shot in front of other drivers at an auto-rickshaw stand. I do not accept that the incident, as described in his protection visa and SHEV applications, in fact took place. I accept that the applicant may have known other drivers who were killed, and I accept that he may have been frightened. However, I do not accept that this was why the applicant left Sri Lanka. There is no credible information to indicate that the applicant was at risk of harm as a three wheeler driver in the years after the end of the war and prior to his departure from Sri Lanka, and the evidence suggests that if the authorities did have concerns about him they had ample opportunity to kill or harm him.
29. As I do not accept that the applicant witnessed the shooting of auto-rickshaw drivers in the circumstances described in his SHEV application, I do not accept that he was arrested and detained by the SLA immediately afterwards. As noted above, I consider it plausible that, as he stated at the entry interview and consistently with the Tamilnet article, he was "stopped" and questioned when he went to the site the next day. However, I do not accept that the applicant was detained for two or three months and questioned as he subsequently claimed. Apart from the fact that I do not accept the version of events which he claims led to this lengthy detention, his evidence about what happened during this detention and the reasons for it are, in my view, not credible. First, I do not accept that the applicant would have been questioned about who killed the drivers when, according to his own evidence, they were shot either by the army, or by paramilitaries associated with the army. Second, if the applicant had really been suspected of having links with the LTTE, it is not apparent why he too would not have simply been killed. Third, he has given inconsistent and somewhat implausible accounts of why he and the other drivers were suspected of having links with the LTTE. He stated initially that the drivers were compelled to drive LTTE family members and associates to Heroes' Day functions, but later said that the reason they were under suspicion was that the Heroes' Day event was held near the auto stand. As noted above, although the applicant had claimed in his 2016 statutory declaration that LTTE leaders frequented his uncle's garage, and it was because of this association that the applicant had been required to drive them around, he did not mention this connection at any earlier stage of his application. Indeed, in both arrival interviews and in his 2013 statutory declaration he stated that neither he nor his family had any association with the LTTE and he did not mention his uncle's connection at the SHEV interview until the earlier claim that he did was explicitly put to him. In these circumstances, I do not accept that there was a significant LTTE connection through his uncle. I accept that LTTE members may have had their vehicles repaired at his uncle's garage and that the applicant would have given LTTE members rides from time to time. I do not consider that this association would have been viewed as significant by the Sri Lankan authorities either during the war or subsequently, and I do not accept that the applicant came to the adverse attention of the Sri Lankan authorities because of actual or imputed links to the LTTE. I do consider it plausible that three wheeler drivers would have been regarded as a useful source of information about the movements of LTTE members, and I accept that in these circumstances, the applicant may have been asked to provide information to the SLA from time to time. I do not accept, however, that he was required to inform the army camp of every night hire that he undertook over a six year period.
30. I accept that he may have come to be known as an informer, although I do not accept his evidence that people knew this because they realised that people were harmed a few days after they rode in his three wheeler. I do not consider it credible that people would have made this connection, given the delay between the contact with the applicant and the alleged harm, and given the differing nature of the various kinds of harm that the applicant says was done - thefts, robberies, rapes and one killing. Indeed, the applicant's evidence about the various kinds of harm being done to people he informed on appears somewhat implausible, although I am prepared to accept that if any of the people of whose movements he informed the SLA were in fact known or suspected of having LTTE links they may well have been targeted, but it seems more likely that they would have been detained or killed rather than robbed or raped. I do not accept the applicant's claim that they were targeted because the authorities wanted information about the applicant, or that they were harmed while being questioned about him. Had the authorities wanted information about the applicant, I consider that they would have detained him and asked him, rather than forced him to identify other people who they then asked about the applicant. In any case, I note the applicant claimed that these incidents of harm ceased after 2009, and whatever is the truth of the matter, I consider that the events were related to the security situation in place during the war. Even if the applicant was still required to pass information to the authorities from time to time after the end of the war, I am satisfied that no harm came to any person who he informed on after 2009. He says that people stopped talking to him and declined to use his services, but he nonetheless remained in Sri Lanka in his village over the six year period that he says he experienced these difficulties.
31. Having regard to all of the applicant's evidence and the other information before me, I accept that the applicant knows auto-rickshaw drivers who were shot around 2006, and possibly over a more extensive period during the war years. I do not accept that he witnessed such shootings, although I accept that he may have been the rickshaw driver referred to in the Tamilnet article who was "stopped" by the army when he visited the site of a shooting looking for the victims.
24 The Authority considered the appellant's claimed history of, and consequential risk due to, a real or imputed connection with the LTTE. At [39] the authority held -
39. … the credible information before me does not suggest that the applicant was ever of any real interest to the authorities because of actual or suspected links with the LTTE. Nor does the credible information indicate that the applicant has been subjected to any form of serious or significant harm because of his ethnicity, his actual or imputed support for the LTTE or his job.
25 At [40] the Authority referred to the risk associated with being of Tamil ethnicity and a prior resident of areas that were controlled by the LTTE, and stated -
40. UNHCR's 2012 "Guidelines for assessing the eligibility of Sri Lankans for asylum" assess that there is no longer a presumption of a requirement for protection simply for reason of being of Tamil ethnicity and a prior resident of areas previously under the control of the LTTE. I am satisfied that the applicant is not at risk of harm now or in the reasonably foreseeable future for these reasons. The Guidelines set out categories of people who may be at risk of harm because of certain past links to the LTTE, but I am satisfied that the applicant does not fall within any of those categories.
26 At [41] the Authority referred to the evidence of torture and mistreatment of persons taken into detention, but considered that there was no real chance that the appellant would be subjected to such harm -
41. I accept that some people who had certain links with the LTTE may continue to be at risk of harm, especially if they are taken into detention by security authorities as part of the process of monitoring, given the evidence about the prevalence of torture and mistreatment in detention. However, the applicant's evidence does not suggest and I find that he has no connection with the LTTE and is not imputed by the authorities to have any connection with the LTTE. There is no credible evidence to suggest that the applicant has been subjected to even routine monitoring since the end of the war in 2009. In these circumstances, and given the changed security conditions in Sri Lanka (albeit accepting that human rights abuses still occur) I find that there is no real chance that he would be subjected to harm now or on return to Sri Lanka in the reasonably foreseeable future as a person with suspected LTTE connections for any reason including his Tamil ethnicity, his prior residence in LTTE controlled areas, and his occupation as a three wheeler driver.
27 At [47] the Authority addressed the risk of the appellant being questioned and detained upon his return to Sri Lanka as a failed asylum seeker, and stated (inter alia) -
47. I accept that as a person who left Sri Lanka illegally the applicant will probably be investigated and questioned on return. This could involve an interview, contact with the police in his home area, his neighbours and family, and checking criminal and court records. Based on the country information I accept that there may be some risk of further investigation or prolonged detention or harm if a returnee is identified as having an adverse profile, such as a serious criminal record or suspected connection to the LTTE; there have been reports of returnees being subjected to mistreatment in these circumstances. The delegate considered whether the applicant might face harm on return as a failed asylum seeker and considered reports of the mistreatment of returning failed asylum seekers, including information provided by the applicant. The weight of country information, however, indicates that those asylum seekers who were subjected to mistreatment on return had connections of some kind with the LTTE, or there was some reason for the authorities to suspect such links, or they had been politically active overseas. The applicant appears to have no criminal record, and I do not consider that his past interactions with the SLA in Jaffna would cause problems for him now, given that there is no information before me to suggest that this had ongoing repercussions after the end of the war. I find that if the applicant is investigated upon return, the authorities will quickly establish that he has no relevant adverse profile. In these circumstances, I find that the applicant would not be subjected to any mistreatment on arrival back in Sri Lanka that would extend beyond routine processing or which would amount to serious harm. …
28 A footnote numbered 10 to the above passage cited a number of publications that appear from their description and context to comprise country information.