Case BriefsForeign Courts

Federal Court of Australia: Stewart, J. allowed an appeal filed by a Sri Lankan rape survivor who had applied for an Australian visa, holding that the Immigration Assessment Authority (IAA) erred in rejecting the applicant’s claim that social stigma arising from her sexual assault coupled with her Tamil ethnicity could likely amount to persecution if she were to be sent back.

The appellant is a Sri Lankan citizen of Tamil ethnicity, who lodged a combined application for Safe Haven Enterprise Visas (SHEVs) in 2017 along with her husband and son. Their applications were denied on the grounds that Australia did not owe them protection obligations, and this was affirmed by the IAA. The Federal Circuit Court dismissed the appellant’s application for judicial review of the Authority’s decision.

The appellant feared returning to Sri Lanka due to her Tamil ethnicity and her imputed pro-LTTE political opinion, and apprehended a continuing risk of rape and harassment by Sri Lankan security forces, which had been ongoing since the civil war ended in 2009. She claimed that she been raped while in Sri Lanka, but had “not been able to express this to anybody, not even [her husband].”

The IAA, however, was not convinced that her fear was well-founded, having given regard to “the improved security situation in Sri Lanka, the opportune nature of the sexual assault in 2010 and the protection the appellant would receive from her family,” stating that it was not satisfied that she would face a similar harm (of sexual assault) if she were to return. It went further to state that since the knowledge of the incident was limited to a very small pool of persons, there did not exist a real chance that she would face societal discrimination.

The Court disagreed with the earlier decisions, making a reference to “country information” cited by the IAA itself, which demonstrated that there was a factual basis to the realistic possibility that Tamil rape-survivors in Sri Lanka face discrimination and social stigma. It observed that by assuming that the appellant would not suffer from discrimination because she would be discrete about her rape, the IAA impermissibly divided Tamil sexual assault-survivors in Sri Lanka into two categories- one whose assault is public, and one whose is not. This shifted the focus away from the main question as to why she felt unable to tell “anyone,” causing the Authority to fail to enter upon the inquiry as to whether the social group suffers persecution as a consequence of social stigma. Since the IAA was operating under the presumption that the rape would not be disclosed, it failed to consider what would happen to the appellant if it did.

Stewart, J. acknowledged the increased vulnerability of sexual assault survivors to various adverse health effects as a result of prolonging disclosure of sexual assault, feelings of shame and experiencing negative social reactions. Holding that the appellant could be found to be a refugee and could fulfil the criteria under Section 36(2)(a) of the Migration Act, 1958 (Cth) wherein Australia has protection obligations with respect to a non-citizen refugee, it set aside the orders of the primary judge, allowed the application for judicial review of its decision and remitted the matter to the Authority for reconsideration. [CGW18 v Minister for Home Affairs [2020] FCA 1104, decided on 03-08-2020]

Legislation UpdatesNotifications

S.O. 1730(E).— WHEREAS the Liberation Tigers of Tamil Eelam (hereinafter referred to as the LTTE), is an association based in Sri Lanka but having its supporters, sympathisers and agents in the territory of India;

AND WHEREAS the LTTE’s objective for a separate homeland (Tamil Eelam) for all Tamils threatens the sovereignty and territorial integrity of India, and amounts to cession and secession of a part of the territory of India from the Union and thus falls within the ambit of unlawful activities;

AND WHEREAS the LTTE, even after its military defeat in May, 2009 in Sri Lanka, has not abandoned the concept of ‘Eelam’ and has been clandestinely working towards the ‘Eelam’ cause by undertaking fund raising and propaganda activities and the remnant LTTE leaders or cadres have also initiated efforts to regroup the scattered activists and resurrect the outfit locally and internationally;

AND WHEREAS the separatist Tamil chauvinist groups and pro-LTTE groups continue to foster a separatist tendency amongst the masses and enhance the support base for LTTE in India and particularly in Tamil Nadu,it will ultimately have a strong disintegrating influence over the territorial integrity of India, hence, the strong need continues to exist to control all such separatist activities by all possible lawful means;

AND WHEREAS cases were registered under the Unlawful Activities (Prevention) Act 1967, against LTTE, pro-LTTE elements and chauvinist groups since the last notification of the Government of India in the Ministry of Home Affairs vide number S.O. 1272 (E), dated the 14th May, 2014 that is between May, 2014 and May, 2019 besides cases under the provisions of Explosive Substances Act 1908, Indian Penal Code, etc.;

AND WHEREAS the Diaspora continue to spread through articles in the Internet portals, anti-India feeling amongst the Sri Lankan Tamils by holding the Government of India responsible for the defeat of the LTTE and such propaganda through Internet, which remains continued, is likely to impact Very Very Important Persons (VVIP) security adversely in India;

AND WHEREAS for the reasons aforesaid, the Central Government is of the opinion that the LTTE is an unlawful association and there is a continuing strong need to control all such separatist activities by all possible means;

AND WHEREAS the Central Government has the information that –

(i) the activities of the LTTE remnant cadres, dropouts, sympathisers, supporters who have been traced out recently in the State of Tamil Nadu suggest that the cadres sent to Tamil Nadu would ultimately be utilised by the LTTE for unlawful activities;

(ii) the activities of pro-LTTE organisations and individuals have come to notice of the Government of India that despite the ban in force, attempts have been made by these forces to extend their support to the LTTE;

(iii) the LTTE leaders, operatives and supporters have been inimically opposed to India’s policy on their organisation and action of the State machinery in curbing their activities;

AND WHEREAS the Central Government is of the opinion that the aforesaid activities of the LTTE continue to pose a threat to, and are detrimental to, the sovereignty and territorial integrity of India as also to the public order and, therefore, it should be declared as an unlawful association;

AND WHEREAS the Central Government is further of the opinion that—(i) because of the LTTE’s continued violent and disruptive activities which are prejudicial to the integrity and sovereignty of India; and (ii) the LTTE continues to adopt a strong anti-India posture as also continues to pose a grave threat to the security of Indian nationals, it is necessary to declare LTTE as an unlawful association with immediate effect;

NOW, THEREFORE, in exercise of the powers conferred by sub-sections (1) and (3) of Section 3 of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967), the Central Government hereby declares the Liberation Tigers of Tamil Eelam (the LTTE) as an unlawful association and directs that this notification shall, subject to any order that may be made under Section 4 of the said Act, have effect on and from the date of its publication in the Official Gazette.


[Notification dt. 14-05-2019]

Ministry of Home Affairs