The Prevention of Terrorism Act argument
39 The appellant had said the following in his original statutory declaration in support of his visa application:
48. Even though the war is over, the sense and feeling of persecution is still the same. The last time I talked to my family, two months ago, they told me that the Army is still in my village and are still kidnapping and questioning Tamils. Even now in the evenings, Tamils cannot leave their homes for fear of being taken by the Army.
49. My brother, [REDACTED], was stabbed, cut and beaten on 3rd January 2014 in the evening. He was going to the shops when this assault happened. He was hospitalised for four days. We do not know who did it or why they did it but I have seen in the news and heard from my family that crimes like these are not uncommon for Tamil people. I fear that the same thing might happen to me.
50. The Army is arresting people who helped the LTTE in the past and I am worried that they will target me in the future. My fear of the Army is still strong because of what happened to me in the past.
51. I fear if I went back to Sri Lanka, I would be arrested immediately at the airport. The airport officers will most likely hand me over to the Sri Lankan Army who will want to know why I went to Australia and why I came back to Sri Lanka. I am afraid of what they will do to me when they hear my answers.
52. I know of people who have been returned to Sri Lanka. My family in Sri Lanka have been keeping me up to date with stories back home. They told me that one month ago, someone in Australia was sent back to Sri Lanka. The police arrested this person and kept him in detention. They beat him whilst he was in detention. He was released ten days later but he is under continuous surveillance. The police go to his house every now and again to question him and if they get suspicious they will detain him in the camp.
53. I am afraid that this will happen to me.
54. I am unable to relocate to another area of Sri Lanka because my risk of harm extends throughout the whole country. There is nowhere safe for me in Sri Lanka as the Sri Lankan authorities; particularly the Sri Lankan Army is everywhere. If I move out of Tamil provinces like [REDACTED] and into other regions, it does not matter if I am able to avoid the Army because people will notice that I am an outsider and that I am not from that area and they will report me to the Army and there would be a situation like what happened when I moved to Colombo.
55. The Sri Lankan Army still does not believe that the LTTE is completely gone. I fear they will suspect that I am a supporter or former member of the LTTE if I return. I am afraid that they would kidnap me and detain me or even torture me.
40 That evidence came after a long and detailed recitation of what had happened to him during the civil war, including what he was compelled by the LTTE to do to support them, and the numerous occasions on which he was detained, questioned and beaten by members of the Sri Lankan army and the CID. He described severe physical mistreatment at the hands of the Sri Lankan army in considerable detail in his original statement. He expressly stated that:
I have never admitted to being a LTTE supporter because if I were to admit to being a supporter I would most likely be detained, interrogated, tortured and eventually killed.
41 The appellant's narrative revealed he had offered a substantive level of support to the LTTE, which he explained in the following way:
I helped the LTTE build bunkers in the past when they were in my village. They came to my house two or three times asking me if I would build bunkers. I did not refuse them, because they put it to me as "Tamils helping Tamils". Since the LTTE are fighting for the Tamils and their freedom, I see myself as obligated to help them either financially or as a builder if they were to ask me for my assistance. I feel as if I cannot refuse them.
42 He also explained his arrest and detention by the CID when he had fled to Colombo to escape the situation in the north:
The CID took me to the police station, where the police kept me there for three days. On the first day, the police beat me with their batons and they asked me about my involvement with the LTTE. They told me that they suspected that I was an informer and that I had come to Colombo to set up a bomb. I had to explain to the police what had happened to my card, but they were already suspicious that I was an informer for the LTTE and that maybe I was in the city to set off a bomb. It was not until the next day, when an interpreter was allocated to me that I was able to tell them why I was in Colombo.
43 None of this was the subject of any adverse findings by the delegate or by the Authority.
44 While in these statements, he makes no express reference to the Prevention of Terrorism Act, it is apparent the appellant is expressing fears that the Sri Lankan army, and other Sri Lankan authorities, will continue to exercise powers of detention against him, in order to uncover any past or continuing support for the LTTE, and that he will be subject to serious harm if he is detained.
45 That the Prevention of Terrorism Act was a source of power relied on to detain and mistreat Tamils in the past was a link expressly made by the delegate. At [75] of the delegate's reasons, the delegate found, by reference to the 2015 DFAT report, that:
Whilst many Tamils, particularly in the north and east have previously reported being monitored, harassed, detained and/or arrested under the Rajapaksa government, DFAT assessed that these behaviour have decreased under the Sirisena government. Emergency restrictions are being lifted and the Sirisena government has reviewed and released a number of detainees, including Tamils, arrested under the Prevention of Terrorism Act 1979 (PTA).
46 The DFAT report on which the delegate relied also refers to the Prevention of Terrorism Act. The delegate clearly recognised that Act as a source of power relied on by Sri Lankan authorities to arrest and detain Tamils suspected of involvement in or association with the LTTE.
47 The Authority's reasons also refer to the Prevention of Terrorism Act at [9] and [14], by reference to the 2015 DFAT report and its account of the history of Tamils being detained under that Act. In the first reference, relying on the DFAT report and some earlier country information, the Authority found:
More Tamils were detained under emergency regulations and the Prevention of Terrorism Act (PTA) than any other ethnic group. Torture and other ill-treatment of persons in custody by the security forces was a widespread problem both during and since the armed conflict. There have also been reports of the police launching massive search operations in Colombo City and arresting a number of people on suspicion.
(Footnotes omitted.)
48 It was in this context that at [14] the Authority found that one of the acts of the Sirisena Government had been to release "some individuals held under the Prevention of Terrorism Act 1979 (PTA)". This is taken from the 2015 DFAT report, and is similar to the findings made by the delegate. In both cases, there is elaboration about how many people were released, or were still held, not whether arrest and detention under the Prevention of Terrorism Act continued.
49 The Minister accepted these references to the Prevention of Terrorism Act by the Authority were a "step removed" from the appellant himself, but submitted that the findings need to be viewed in the context that the Authority accepted the past treatment of the appellant and found the recent changes in circumstances were the main factors which led it to conclude he did not face a real chance or real risk of harm.
50 There is no debate on the appellant's own evidence to the delegate and the Authority, that he was not simply articulating a fear about being apprehended on his return for offences relating to unlawful departure from Sri Lanka under the Sri Lankan Immigrants and Emigrants Act. He was articulating a consistent fear of being arrested again by the Sri Lankan army or other Sri Lankan authorities, because he had in fact been associated with the LTTE, and had not revealed that when questioned. His evidence sought to articulate the regular, arbitrary and random nature of the arrests, detention, questioning and mistreatment he had faced in the past.
51 Aside from its general finding at [18] of its reasons, the Authority then went on (at [19]-26] of its reasons) to focus on what, on the country information, it found would happen to the appellant on his return as a failed asylum seeker. This carried through into its complementary protection assessment at [31]-[38].
52 At [27] and [28] the Authority made findings that the appellant did not have a "risk profile requiring monitoring", and that he did not have a profile of "actual or imputed connection to the LTTE". However, the cross-references in these paragraphs to earlier parts of its reasons really only go back to the general findings at [16] and [18], which in turn rely on the general improvement in the situation in Sri Lanka, as the Authority found it.
53 Yet at [15], the Authority had accepted:
The current Sirisena government has publicly claimed that military involvement in civilian activities has ceased. DFAT assesses that there has been an overall decrease in monitoring in 2015, but some individuals in the north and east still report being questioned and observed by the military and report that the sizeable military presence remains a factor in aspects of civilian life.
54 This finding is taken from the 2015 DFAT report at 2.39. That full paragraph reads:
2.39 Under the Rajapaksa government the security and intelligence forces in the north and east were known to monitor any possible LTTE activity and any form of civil resistance or anti-Government sentiment. Some community members were questioned by authorities after they were visited by Non-Government Organisations (NGOs) or foreign government officials. Although not officially mandated to do so, in many areas military officers and personnel took a visible and active role in aspects of civilian life. This included participating in community functions, opening development projects such as schools and houses and undertaking community work. The Sirisena government has publicly claimed that military involvement in civilian activities has ceased. DFAT assesses that there has been an overall decrease in monitoring in 2015, but some individuals in the north and east still report being questioned and observed by the military and report that the sizeable military presence remains a factor in aspects of civilian life.
55 At 3.7-3.9 the 2015 DFAT report stated:
3.7 Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested and/or detained by security forces under the Rajapaksa government. For example, during the civil conflict, more Tamils were detained under emergency regulations and the PTA than any other ethnic group. While this was primarily due to LTTE members and supporters being almost entirely Tamil, there were also likely instances of discrimination in the application of these laws, with LTTE support at times imputed on the basis of ethnicity. There are no published statistics on the numbers or ethnicity of those arrested under the PTA. However, DFAT assesses that there are currently fewer individuals detained under the PTA than there were during the conflict. The Sirisena government has undertaken to review the list of detainees under the PTA and has released some detainees, including Tamils. The government has said it is willing to work with the International Committee of the Red Cross (ICRC) to provide greater access to detainees for welfare monitoring and to establish a comprehensive database on detainees (see: 'Arbitrary arrest and detention' below).
3.8 The cessation of the forced registration of Tamils suggests the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the end of the conflict.
3.9 DFAT assesses that monitoring and harassment of Tamils has decreased under the Sirisena government and, on a day-to-day basis, the Tamil community feels more confident to refuse or question the motives of monitoring activities undertaken by authorities, if such activities occur.
56 At 3.36-3.38 the 2015 DFAT report stated:
3.36 Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country. According to expert testimony provided to a hearing of the UK's Upper Tribunal on Immigration and Asylum, Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including 'stop' and 'watch' electronic databases. 'Stop' lists include names of those for whom there is an extant court order, arrest warrant or order to impound their Sri Lankan passport while 'watch' lists include names of those for whom Sri Lankan security services consider to be of interest, including for separatist or criminal activities. Those on a watch list are not likely to be detained, although there have been some media reports claiming that individuals, mostly Tamils, travelling from the United Kingdom have been detained on arrival at the airport. DFAT has not been able to verify these reports but notes that those on a watch list are likely to be monitored.
3.37 In the north and east, Sri Lankan security forces maintain a significant presence and a high level of awareness of the civilian populations of the area. For example, according to a 2013 UNHCR survey, 87 per cent of mostly Tamil IDPs who had returned to their homes in the north and east had been registered by the military and 71 per cent had been visited by the military or the Police Criminal Investigation Department (CID) for interviews. Sri Lankan authorities have also increased their security presence in the north and east from time to time. For example, in March 2014, a number of check-points were established due to an alleged resurgence of LTTE activity. DFAT is aware of credible reports of people being stopped, detained and questioned by security forces in 2014 but assesses that these incidences decreased in 2015, since Sirisena came to power. After initially retaining the police powers granted to the military by Rajapaksa, in March 2015 Sirisena did not renew them, thus making military checkpoints in the north technically illegal.
3.38 Most public gatherings in the north and the east are monitored by the police or military. The Government remains sensitive to those expressing views that could be considered sympathetic to the LTTE. In May 2015, the Government allowed Tamils to hold public memorial ceremonies in the north and east to honour dead civilians on the anniversary of the end of the war, however there was a heavy police presence and any other form of demonstration was banned.
57 Then at 3.42-3.43 the 2015 DFAT report stated:
3.42 In addition to a relatively small number of high-profile LTTE members, many thousands of LTTE members have been arrested and detained in rehabilitation centres since the end of the conflict. Generally, this includeS former combatants, those employed in administrative or other roles and those who may have provided a high level of non-military material support to the LTTE during the conflict.
3.43 DFAT assesses that, although the great majority of these low-profile ('low-risk') former members have already been released following their detention, any other low-profile LTTE members who came to the attention of Sri Lankan authorities would be detained and may be sent to the remaining rehabilitation centres. Following their release from rehabilitation centres, low-profile former LTTE members may be monitored but generally are not prosecuted.
58 There is then a specific part of the 2015 DFAT report devoted to activities of Sri Lankan authorities under the PTA, at 3.54-3.55:
3.54 Under Regulation 22 of Sri Lanka's Emergency Regulations 2005 (repealed in 2011), administrative detention in rehabilitation centres or elsewhere was possible for up to two years without judicial review or access to legal representation. Some of these provisions were replaced by similar regulations under the PTA, which is still in place. Under the PTA, suspects can be held without charge for three-month periods, not exceeding a total of 18 months. In addition to those arrested under the PTA, some former LTTE members have been arrested and detained on other criminal charges. According to Sri Lanka's then Minister for External Affairs, GL Peiris, as of March 2014, a total of 12,288 LTTE members had been arrested and sent to rehabilitation centres since the end of the conflict in 2009. The majority of those in rehabilitation have since been released and DFAT understands that only 45-50 former ex-LTTE members remain in rehabilitation as of July 2015.
3.55 DFAT is unable to independently verify the number of former LTTE members in detention other than rehabilitation. Former LTTE members continue to be identified and arrested, detained and prosecuted within Sri Lanka's criminal justice system. In a June 2015 interview for The Island newspaper, Minister of Justice Wijeyadasa Rajapakshe stated that there were only 273 convicted or suspected LTTE cadres in government custody, including those in rehabilitation centres.
59 The report then goes on to describe what kind of people might be selected for "rehabilitation", or prosecution, noting at 3.61 that "[r]ecommendations for rehabilitation alone are usually only made for low-profile detainees".
60 At 4.24-4.25, the 2015 DFAT report states:
4.24 Although Sri Lankan law prohibits arbitrary arrest and detention, the PTA allows authorities to detain suspects without charge for up to 72 hours. Following this, a suspect must either be produced before a magistrate or can be held without charge under detention orders for three-month periods not exceeding 18 months. Suspects can be held in irregular places of detention, as well as at police stations, detention centres or prisons.
4.25 The Sirisena government has taken some limited action to deal with individuals detained without charge under the PTA by the former Rajapaksa government. As of the date of this report, the government had released 39 detainees on bail and has committed to streamlining judicial processes for PTA cases, including consideration of rehabilitation as an alternative to custody.
61 In my opinion, the material provided by the appellant both to the delegate and to the Authority, all of which was accepted by the Authority, read with the contents of the country information to which the Authority expressly had recourse, fairly raised the claim that the appellant considered he would continue to face arbitrary arrest and detention, and mistreatment, from the Sri Lankan authorities on return to Sri Lanka. The country information made it clear that the powers under the Prevention of Terrorism Act were what had been, and what continued to be, exercised to effect such arrests and detentions. While the authors of the 2015 DFAT Report expressed an opinion that this kind of conduct was decreasing, there was in fact a lot of detail given in the DFAT report about continued risks, and who might face them.
62 While the Authority made general findings about the decrease in monitoring of Tamils (see [15] of its reasons) it also found that this practice continued and that the "sizeable military presence remains a factor in aspects of civilian life". While it made a finding at [14] that some individuals held under the Prevention of Terrorism Act had been released, it did not grapple with the way powers under the Prevention of Terrorism Act were currently being exercised, or might be expected to be exercised in the foreseeable future.
63 There is a disconnect, or disconformity between, on the one hand, the Authority's complete acceptance of the appellant's narrative of his past treatment (including what the Authority described as "torture" of him by the Sri Lankan authorities) and his past involvement with the LTTE, and on the other, its highly generalised findings that the appellant would have no profile of interest to the authorities on return.
64 That disconformity can be explained by a failure of the Authority to grapple - at the level of active intellectual engagement - with the appellant's fears about arbitrary arrest and detention under the Prevention of Terrorism Act once he was back in civilian life in Sri Lanka, as opposed to what might happen to him at the airport and in relation to his illegal departure. In relation to the need for "active intellectual engagement" by a decision-maker such as the Authority: see, for example, Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [45] and Singh v Minister for Home Affairs [2019] FCAFC 3 at [34]-[36]. The absence of any reference by the Authority to, or consideration of, all of the other parts of the 2015 DFAT report to which I have referred, strengthen the inference that the Authority did not turn its mind to whether, as an individual with the specific background he had been accepted to have, there was a real risk or real chance of the appellant being exposed to future exercises of power under the Prevention of Terrorism Act and future arrest, detention and mistreatment.
65 That is not to suggest in all cases that there needs to be a detailed examination of such matters: what distinguishes the present case is the "wholesale" acceptance (as the Minister described it) of the appellant's narrative about his past LTTE involvement, and his past mistreatment over many years and on many occasions by the Sri Lankan authorities. His articulation of fears of that treatment recurring, in the context of the very country information on which the Authority preferred to rely, fairly raised for consideration at a level more than mere generalities, what the appellant was likely to encounter once he was forced to return to civilian life, whether in the north or elsewhere in Sri Lanka. That did not occur, and the failure of the Authority to engage with this aspect of the appellant's claims meant it exceeded its jurisdiction.
66 The Federal Circuit Court erred in not identifying this error. It is not to the point that the Authority took into account the existence of the Prevention of Terrorism Act (see [26] of the Federal Circuit Court reasons). Nor is it to the point that the Authority found the appellant was not sent for rehabilitation in the past. The country information identified this as a consequence of arrest under the Prevention of Terrorism Act, not a precursor. Contrary to the Federal Circuit Court reasons at [28], the point being made by the appellant, even though he was self-represented, did not simply raise a disagreement about the country information on which the Authority relied. As I have sought to demonstrate, the very country information which the Authority accepted (as it was entitled to do) contained a great deal more about arrest and detention under the Prevention of Terrorism Act, and monitoring of Tamils, than the Authority's reasons disclosed. None of these aspects of the 2015 DFAT report were considered by the Authority in the light of the claims being made by the appellant. That is the error.
67 The appeal must be allowed.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.