CAT/C/34/D/211/2002
Page 3
2.1
The complainant contends that, in 1990, aged 14, he and 14 other boys were
recruited by the Tamil National Army, which was working with the Indian Army, but
subsequently escaped. Thereafter, his father sent him to an area controlled by the
Liberation Tigers of Tamil Elam (LTTE). When asked to join the LTTE, he declined
and offered to assist in other ways such as building bunkers and distributing food. He
was thereupon forced to undertake 3 months training with the LTTE assisting those
wounded on the battlefield. In 1995, when the Sri La nkan Army attacked Jaffna, his
father took him to safety in Colombo, where he stayed with a friend. Without
providing further detail, he states that he was physically abused at a Colombo police
station. He then learned that his father had been detained in Jaffna by the LTTE and
later killed. Following the father’s disappearance, he fled to Taipei but was forced to
return to Sri Lanka (no details are provided). After his return, he claimed that he had
learnt that the Sri Lankan authorities were in search of him, and he fled to Australia.
2.2
The complainant entered Australia on a three month tourist visa on 11 October
1995 and lodged an application for a protection visa on 12 December 1995. Following
interviews, the delegate of the Department of Immigration rejected the claim on 19
November 1997, regarding the complainant as not credible on account of a variety of
inconsistencies between his application and his interview testimony. The complainant
concedes “certain minor inconsistencies” but argues that they “are not significantly
relevant”, and that he was misled by another person who advised him not to disclose
everything. On 12 December 1997, he applied for review of the decision.
2.3
On 28 September 1999, the Refugee Review Tribunal, following a hearing at
which the complainant appeared with interpretation, affirmed the decision not to grant
a protection visa. The Tribunal stated that it “does not attach importance to minor
inconsistencies of detail arising from the [complainant’s] original submission. The
Tribunal has, however, carefully considered more serious inconsistencies and
difficulties with the [complainant’s] evidence which are addressed as they arise in this
decision. Apart from a number of lesser discrepancies, there were major difficulties
with key claims.” After addressing these issues in turn, the Tribunal found that: “The
extent of implausibilities, inconsistencies and other difficulties with the Applicant’s
evidence are such that, considering them all together, the Tribunal is satisfied that the
[complainant’s] claims have been fabricated.”
2.4
On 25 October 1999, the complainant requested the Minister of Immigration
under section 417 of the Migration Act 1958 to substitute, in the public interest, a
more favourable decision for that of the RRT. On 8 January 2000, this was rejected.
On 15 February 2002, a second request under section 417 was filed and, on 29 March
2003, rejected. On 2 May 2000, the complainant was detained in immigration
detention for purposes of removal. On 10 May 2000, a third request under section 417
was filed, which was later rejected on 24 November 2000. The same day, he lodged a
second application for a protection visa on the grounds that the original application
was invalid. On 22 May 2000, the Department determined that the original application
had been validly made.
2.5
On 22 August 2000, the second application for a protection visa was rejected
as the complainant had not established a real fear of persecution if returned to Sri
Lanka. On 24 August 2000, he applied to the RRT to appeal the refusal. On 30
October 2000, the RRT cancelled the decision to refuse the second application for a