1502530 (Refugee)

[2017] AATA 1832

1502530 (Refugee) [2017] AATA 1832 (23 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502530

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Amanda Paxton

DATE:23 August 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 23 August 2017 at 9:29am

CATCHWORDS

Refugee – Protection visa – Sri Lanka – Religion – Buddhism – Convert to Islam – Particular social group – Single women without male protection – Fear of societal discrimination – Fear of sexual harassment and violence – Vague claims and evidence – No real risk of significant harm

LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 48A, 499

Migration Regulations 1994, r 1.12, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Sri Lanka, applied for the visas [in] October 2013 and the delegate refused to grant the visas [in] February 2015.

3. For reference in this decision, where relevant, the first named applicant will be known as ‘the applicant’, the second named applicant as ‘the applicant’s son’.

4. The applicant appeared before the Tribunal on 30 August 2016 to give evidence and present arguments. The applicant’s son was invited to interview but declined to attend and the applicant presented evidence on his behalf. The Tribunal also received oral evidence from [Mrs A], the applicant’s sister, and [Mr B], that applicant’s brother-in-law.

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

   RELEVANT LAW

6. The criteria for a Protection visa are set out in s.36 of the Act and 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).

7. Relevantly for this review, s.48A of the Act imposes a bar on a non-citizen making a further application for a Protection visa while in the migration zone in circumstances where the non-citizen has already made an application for a Protection visa which has been refused. The Full Federal Court in SZGIZ v Minister for Immigration and Citizenship held that the operation of s.48A of the Act, as it stood at the time of this Protection visa application, is confined to the making of a further application for protection which duplicates an earlier unsuccessful application for a Protection visa, in the sense that both applications raise the same essential criterion for the grant of a Protection visa.

8. Applying the reasoning in SZGIZ, the Tribunal finds that it does not have power to consider the criterion in s.36(2)(a) of the Act that sets out Australia’s protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (Refugees Convention) because the applicants’ first Protection visa application was refused by the Department on the basis of this criterion [in] June 2005. Instead, the Tribunal has proceeded on the basis that it can only consider the applicants claims under the complementary protection provisions in s.36(2)(aa), s.36(2)(b) and s.36(2)(c) of the Act. These requirements are outlined below.

   Complementary protection criterion

9. A person meets 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’).

10. ‘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.

11. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. 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.

12. 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.

    Section 499 Ministerial Direction

13. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken into account policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

14. The Tribunal notes that DFAT released a Country Information Report on Sri Lanka in December 2015.[1] This DFAT Report has been updated, the most recent being published in January 2017.[2] In line with its obligations under Direction No. 56, the Tribunal has had regard to the most recent report and carefully considered the issues raised in this report. The Tribunal is satisfied that the current report does not differ materially or substantially to the December 2015 report and does not raise any new issues for this assessment. The Tribunal has therefore relied on the earlier report.

    [1] DFAT Country Information Report, Sri Lanka, 18 December 2015

    [2] DFAT Country Report Sri Lanka, 24 January 2017

    Member of the same family unit

15. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include children.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The applicant who was born in [year] in [City 1], Sri Lanka, is now [age] years old, Singhalese and claims to have a real risk of significant harm from community discrimination and violence, and violence perpetrated by the military and police, on return to Sri Lanka because she is a single Singhalese woman without male protection, and a convert from Buddhism to Islam.

17. The applicant’s son, who is [age] years old, makes no claims to have a real risk of significant harm on return to Sri Lanka. However, the applicant noted that he has been in Australia many years, speaks English and little Singhalese or Tamil, and commented that adjustment to life in Sri Lanka would be difficult for him.

18. At hearing, the applicant provided an article concerning violence committed against women in the conflict in Sri Lanka, and another concerning the prevalence of sexual violence against women in Sri Lanka.[3]

    [3] AAT, ff. 35 - 40

19. In post-hearing submission the applicant’s representative made further submissions and provided additional articles to the Tribunal, discussed below.[4]

    Witness: [Mrs A], sister of the applicant

    [4] AAT, ff. 200 - 204

20. The applicant’s sister, [Mrs A], gave testimony supporting the applicant’s evidence concerning her family composition, and that her brother in Sri Lanka moves around Sri Lanka for employment. She supported the applicant’s claim that her parents had property that belongs to each of the siblings, including the applicant, and that there is a legal process on foot about the distribution of the family estate because [one of the siblings] is seeking a greater share. She stated that she doesn’t speak with her brother about the applicant’s situation.

21. [Mrs A] gave testimony that the applicant was “disowned” by the family when she married a Muslim man and converted to Islam but that [Mrs A] re-established her relationship with her sister and it is now a close relationship.  She said that she has various medical conditions and sees the applicant every day when the applicant comes to help her and picks up her [age] year old [child]. She confirmed the applicant’s evidence that she and the applicant give each other emotional support and they celebrate Christmas and Eid together and do things with the applicant’s son.

22. [Mrs A] confirmed that the applicant receives Centrelink assistance. She stated that she works part-time and that she buys things for the applicant when she can.  

23. [Mrs A] gave testimony that she went to Sri Lanka recently for a holiday and she felt unsafe even being there with her husband, and she noted reports of rape against women. She is concerned that the applicant will not be able to survive in Sri Lanka with no-one there to support her or be with her.

    Witness: [Mr B]

24. [Mr B] told the Tribunal that he works in a full-time position. He confirmed the applicant’s evidence that she had lived with them for three or four months after her last arrival and then moved away. He stated that his family have been looking after her more of less since she came to Australia in 2004 because her other siblings were not in touch with her. He confirmed that his family see her often and that she provides a high level of help in the care of his [child].

25. [Mr B] told the Tribunal that the applicant’s son is in touch with his father “all the time”. He stated that the first question he always asks the applicant’s son if whether he has spoken with his father. He does not know if the applicant’s husband provides any other support. He is concerned that the applicant will be vulnerable to harm in Sri Lanka.

    Country Information

    Demography

    2.3 Sri Lanka has a population of approximately 22 million. Sri Lanka’s reported average population growth rate was one per cent per annum between 1981 and 2012, now estimated to be 0.84 percent.

    2.4 Approximately 29 per cent of the population lives in the Western Province where Sri Lanka’s commercial capital, Colombo, and official capital, Sri Jayawardenapura Kotte, a suburb of Colombo, are located. Approximately five per cent of Sri Lankans reside in the Northern Province and 7.6 per cent in the Eastern Province. The remainder of the population live in Sri Lanka’s six other provinces.

    2.5 Sri Lanka is a multi-ethnic society consisting of Sinhalese (74.9 per cent), Tamil (15.4 per cent, of which 4.2 per cent represent Tamils of Indian origin, also known as Plantation Tamils, Hill Country Tamils or Up-Country Tamils), Muslim (9.2 per cent), Burgher and Malay. Ethnic groups can be identified by their language, religion or race.

    2.6 Four major religions are practiced in Sri Lanka: Buddhism; Hinduism; Islam; and Christianity (mainly Roman Catholicism). According to the 2012 census, 70.2 per cent of the population are Buddhist (mostly Sinhalese and concentrated in the southern, central and eastern areas of Sri Lanka), 12.6 per cent Hindu (mostly Tamils and the dominant religion in the Northern Province), 9.7 per cent Muslim (predominately located in the Eastern, Western and North-Western provinces), and 7.4 per cent Roman Catholic and other Christian denominations (concentrated in the Western and North-Western provinces), with less than 7,000 from other religions.[5]

    [5] DFAT, Country Information Report, 18 December 2015, p. 4 and confirmed in the updated DFAT Country Report Sri Lanka, 24 January 2017.

    2.36 Crime rates across Sri Lanka vary, but are highest in Colombo District and tend to be higher in the Western Province and the Northern Province. The incidence of homicide throughout has fallen sharply in recent years and is now comparable with other South Asian countries, UNODC estimated a murder rate of 3 per 100,000 in 2011, but the rates of many other serious crimes, including assault and rape have either remained steady or increased slightly. DFAT is aware of increased reports of gender based violence (GBV) in the north and east, and has been told that these reports of GBV have not been met with an effective response. [6]

    [6] DFAT, Country Information Report, 18 December 2015, p. 8 and confirmed in the updated DFAT Country Report Sri Lanka, 24 January 2017.

    Ethnicity
    3.1 The Sri Lankan Constitution provides that ‘no citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such grounds’. However, ethnicity is highly politicised in Sri Lanka and tends to be bound together with related issues of language and religion. These three issues are defining features of day-to-day life in Sri Lanka.

    3.2 Most Sri Lankans tend to live alongside members of their own ethnic groups but major urban areas are more integrated with ethnic groups living in close proximity to each other. Colombo is highly integrated with roughly equal populations of Sinhalese, Tamils and Muslims. This high level of integration is due in part to internal relocation by Tamils and Muslims from other parts of the country during the conflict but also to the economic opportunities available in Colombo. Because the north and east were isolated from the rest of the country during the conflict, these areas tend to be less well integrated. Relatively few Sinhalese or Muslims who left these areas during the conflict have returned.

    3.3 Overall, DFAT assesses that there are currently no official laws or policies that discriminate on the basis of ethnicity or language (‘official discrimination’), including in relation to access to education, employment or access to housing and that implementation of laws and policies by the Sirisena government is generally without discrimination. More generally, there is a moderate level of discrimination between ethnic groups (‘societal discrimination’), largely as a result of the civil conflict and its causes.[7]

    [7] DFAT, Country Information Report, 18 December 2015, p. 9 and confirmed in the updated DFAT Country Report Sri Lanka, 24 January 2017.

    Religion

    3.10 The Sri Lankan Constitution guarantees freedom of religion and belief while giving Buddhism a ‘foremost place’. Attacking places of worship or religious objects is punishable with a fine and/or a maximum of two years imprisonment. Acts intending to insult religion are punishable by a fine and/or a maximum of one year imprisonment.

    3.11 There is a place for religions other than Buddhism in public life. Prominent Buddhist, Hindu, Muslim and Christian leaders are invited to all national functions, although only Buddhist rituals are performed at most events. Government dignitaries host and attend important events for different religions and Sri Lanka recognises religious holidays for all four religions. In successive governments, including the current government, there are four Ministers with portfolio responsibilities for each of the four major religions. These Ministers are practising followers of the faith they have responsibility for.

    3.12 School students are able to study their choice of Buddhist, Hindu, Muslim and Christian religions in most public and private schools, depending on the availability of teachers. There are also public schools for Hindu and Muslim students.

    3.13 Inter-marriage between religious groups sometimes takes place in Sri Lankan society but is generally not common practice.

    3.14 DFAT assesses there is little official discrimination on the basis of religion as there are no official laws or policies that discriminate on the basis of religion. DFAT is aware of reports that the former Rajapaksa government sanctioned religious discrimination, particularly through support provided to Buddhist group Bodu Bala Sena (the Buddhist Power Force or BBS) (see ‘Muslims’ below), but is not aware of any similar reports since the change of government in 2015.

    3.15 In a 2013 report, the Centre for Policy Alternatives (CPA) listed 65 cases of attacks on places of worship throughout the country between May 2009 and January 2013. The majority of cases reported by CPA were against evangelical Christian churches. The majority of incidents, where perpetrators were identified, were instances of Sinhala Buddhist attacks on other religious places of worship. The Sirisena government has publicly said it is committed to ethnic and religious reconciliation.

    3.16 DFAT assesses that most members of religious groups in Sri Lanka are able to practise their faith freely. However, the risk of harassment or violence increases where practitioners attempt to proselytise or to carry out ‘unethical conversions’ which generally involves a financial inducement to convert religion. [8]

    [8] DFAT, Country Information Report, 18 December 2015, p. 10 and confirmed in the updated DFAT Country Report Sri Lanka, 24 January 2017.

    Muslims
    3.17 The Muslim community is the fastest growing ethnic community in Sri Lanka. Between 1981 and 2012, Sri Lanka’s Muslim population grew by over 40 per cent, from 1.12 million to 1.97 million. 98% of Muslims are Sunni. There are a small number of Shias, including members of the Bohra community, who reside mostly in Colombo. The Malay community, largely made up of descendants of Malay members of the Ceylon Police Force, is Muslim and a few of its members hold senior positions in the Sri Lankan military and police. There is also a Memon community, based mostly in Colombo who are Muslims of Indian or Pakistani descent and speak Urdu. Finally, there are a small number of Muslims who follow the Sufi tradition. Most Muslims speak Tamil as their first language. Muslim communities are found throughout Sri Lanka, including in Colombo and Kandy, but larger communities exist in the east in Ampara, Batticaloa and Trincomalee and in the west in Mannar and Puttalam.

    3.19 Although most Muslims sided with the Sinhalese Government forces during the civil conflict, there has been a recent rise in religious tensions between Muslims and the Sinhala-speaking Buddhist majority, particularly with nationalist groups such as Sinhala Ravaya (Sinhalese Roar) and the BBS. In early 2013, Sinhalese Buddhist nationalist groups called for the removal of Halal certification of food produced in Sri Lanka, which they objected to on religious and economic grounds. The apex religious body of Muslims in Sri Lanka, the All Ceylon Jamiyyathul Ulama (ACJU), agreed in March 2013 to stop issuing Halal certification, other than for products produced for export to Islamic countries.

    3.20 There have been a number of incidents of verbal and physical attacks on Muslims and Muslim businesses. According to the SLMC there were at least 241 anti-Muslim attacks and 69 anti-Christian attacks during 2013, some of which involved physical violence or the destruction of property. For example, in March 2013, a Buddhist mob attacked the warehouse of a Muslim-owned business at Pepiliyana near Colombo. The alleged perpetrators were released without charge. In August 2013, Buddhist monks attacked a mosque at Grandpass in Colombo, resulting in several injuries. Charges were laid in some cases and other cases were settled between the parties, but many alleged attacks were not investigated. In April 2014, the former Government established a special police unit to investigate ‘complaints relating to religious matters’. Reported anti-Muslim attacks have dropped in 2015.

    3.21 In June 2014, Galagoda Aththe Gnanasara, General Secretary of BBS, delivered a speech that was blamed by many for inciting violent riots between Buddhists and Muslims in Aluthgama. The violence lasted two days and resulted in four deaths and more than 80 injuries. Three of those killed were Muslims; the fourth was a Tamil security guard at a Muslim-owned farm. Following the riots, police imposed a two-day curfew and acted to prevent further protests in the area. At the time, the BBS operated with support from the Rajapaksa government. Its activities have drastically decreased in 2015 as a result of the change of government.

    3.22 Although many Muslims are employed in agriculture and fisheries, many are also employed in business, industry and the civil service. DFAT has no evidence to indicate that Muslims are economically disadvantaged in Sri Lanka.

    3.23 DFAT assesses that, given the size of the Muslim population in Sri Lanka and the relatively low number of incidents of violence, there is a low risk of political or religious violence for Muslims in Sri Lanka.

    3.24 DFAT assesses that, like other religious groups, Muslims in Sri Lanka are not subject to official discrimination and are generally able to practise their faith freely. Muslims in Sri Lanka are able to exercise their political will to elect representatives of Muslim parties. DFAT was told that religious tensions and violence described above have reduced in 2015, but DFAT assesses that there remains a moderate risk of societal discrimination against Muslim Sri Lankans.[9]

    Women

    3.86 Article 12(2) of Sri Lanka’s Constitution guarantees that no citizen shall be discriminated against on the grounds of sex. Sri Lanka is a party to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Although women are considered equal under civil and criminal law, the law favours males in matters relating to divorce, custody of children and inheritance.

    3.87 There have been several high-profile women in Sri Lanka’s political history, including three-time former Prime Minister Sirimavo Bandaranaike and her daughter, former President Chandrika Bandaranaike Kumaratunga. Women have also featured in other important positions, such as former Chief Justice Shirani Bandaranayake. More generally though, women’s participation in politics is very low, even compared with other South Asian countries. Of the 225 members of Sri Lanka’s current Parliament, 12 are women (5.3 per cent). At the time of this report, the Sirisena government had two female Cabinet ministers, two female State ministers and two female deputy ministers.

    3.88 Rape and domestic violence are criminalised under the Prevention of Domestic Violence Act of 2005. Marital rape is an offence only in cases where the individuals are legally separated. Sexual harassment is punishable under Section 345 of the Penal Code and can carry a maximum five-year prison sentence. Reported incidents of sexual assault and rape have increased in recent years, and tend to be higher in remote areas. A majority of cases are likely to go unreported due to associated social stigma. Domestic violence is also reported to be high, but is also likely to be underreported given the stigma associated with it and conservative views that it is a family matter, especially in Tamil culture. The Asian Human Rights Commission has said that most cases reported to authorities result in ‘settlements’ which do not proceed to prosecution, although sentences are sometimes given in serious cases. President Sirisena’s election manifesto committed to taking action to prevent the abuse of women (and children), including speeding up the trial process for these offences. It is too early to assess implementation of this commitment.[10]

    Police

    5.4 The Sri Lankan Police Service (SLPS) has a notional strength of around 90,000 members. It has responsibility for enforcing criminal and civil laws and maintaining general law and order. The SLPS maintains a 6,000 member paramilitary Special Task Force (STF).

    5.5 With the removal of the Emergency Regulations in 2011, the SLPS became responsible for maintaining law and order within Sri Lanka. In August 2013, the former Rajapaksa government reassigned ministerial responsibility for the SLPS from the Defence Secretary’s portfolio to the President. Under the Sirisena government, portfolio responsibility for the SLPS has been given to the Minister of Law and Order and Prison Reform. The Sirisena government has identified the independence of the police as part of its agenda for constitutional reform.[11]

    [9] DFAT, Country Information Report, 18 December 2015, pp. 10 -11, and confirmed in the updated DFAT Country Report Sri Lanka, 24 January 2017.

    [10] DFAT, Country Information Report, 18 December 2015, p. 19 and confirmed in the updated DFAT Country Report Sri Lanka, 24 January 2017.

    [11] DFAT, Country Information Report, 18 December 2015, p. 26 and confirmed in the updated DFAT Country Report Sri Lanka, 24 January 2017.

    Country of reference

1. The applicants claim to be citizens of Sri Lanka and provided copies of their Sri Lankan passports to the Department with their application. The Tribunal finds that Sri Lanka is the applicants’ receiving country for the purposes of complementary protection.

   Third country protection

2. There is no evidence before the Tribunal to suggest that the applicants have the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

   Findings and reasons

3. The issue in this review is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of any of the applicants being removed from Australia to their receiving country of Sri Lanka, there is a real risk that any of the applicants will suffer significant harm.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

4. While the applicant’s evidence at hearing was detailed and direct in a number of areas, her evidence in respect of areas central to her claims, such as her relationship with her family and husband was vague and limited, raising serious concerns for the Tribunal about the credibility of these claims, that are discussed further below.

   Family circumstances

5. The Tribunal accepts the applicant’s detailed evidence that she was born in [year] in [City 1], Sri Lanka, and lived most of her life in Colombo. On the consistent evidence of the applicant, the Tribunal accepts the applicant’s mother passed away over ten years ago and her father passed away in 1994; and that she has [number] siblings, [a number of them] in Australia, the [rest] in Sri Lanka.

6. The Tribunal accepts the applicant’s detailed oral evidence that she went into [Occupation 1] after school, learnt to [consult] with clients, and worked for about three years in this capacity before going to [another country] for about a year to visit her sister who was accompanying her husband who was employed there. The Tribunal accepts that on return to Sri Lanka, the applicant joined [another employer as a different occupation] and worked there for fourteen years. The Tribunal accepts the applicant is fluent in the Singhalese and English languages.

7. The Tribunal accepts the applicant’s detailed account that she travelled extensively in her work as [an Occupation 1], travelling for training and for short stays associated with her work. The Tribunal accepts the applicant’s evidence that her neighbour looked after her son when she travelled. On the basis of the applicant’s evidence and the documentary evidence before it, the Tribunal accepts she first came to Australia in 1996 to visit her sister who had been in Australia for many years; and that she made a number of visits bringing her son on one occasion. The Tribunal accepts the applicant came to Australia a fifth time in 2004 and has not departed Australia since then.

8. On the basis of the applicant’s oral evidence at hearing, the Tribunal accepts the applicant met her husband, who was in the [Occupation 1] industry in his family [business], in 1994; that he was not married when they first met but neither his family nor her family approved of their relationship because he was Tamil Muslim and she was Singhalese Buddhist, and he married someone else soon after; that he remains married to his first wife and has [number], now adult, children from this marriage. The Tribunal accepts the applicant’s evidence that she and her husband continued to see each other and she married him in 1997 becoming his “second” wife, a status recognised in Sri Lanka, while not a valid marriage in Australia because he remains in his marriage to his first wife.

9. On the basis of the applicant’s oral evidence at hearing, the Tribunal accepts that when she married her husband she lived in an apartment annexed to the home of a Muslim family; that she did not know this family at first but got to know them. The Tribunal accepts the applicant’s evidence that her husband lived between both his home with his first wife and the applicant; and that the applicant had her son and continued working in the [Occupation 1] industry.

10. On the evidence of the applicant and the documentary evidence before it, the Tribunal accepts that the applicant came to Australia with her son in 2004, and about one and a half months later, her husband came to Australia with his first wife and children. The Tribunal accepts the applicant stayed with her sister for a few months before moving to another place in 2005 for six years. The Tribunal accepts the applicant’s husband’s first wife and family lived nearby and the applicant’s husband continued both relationships.

11. On the consistent evidence of the applicant, the Tribunal accepts that she and her husband separated in 2007 and he remained with his first wife and family and she moved with her son to another house in [a suburb], close by to her sister. The Tribunal accepts the applicant’s evidence that her husband returned to Sri Lanka in 2013; that she and her husband have not divorced, and as discussed below that they are in contact with each other and that her husband remains in close contact with her son.

12. The applicant claimed that she became alienated from her siblings when she converted to Islam to marry her husband. When the Tribunal enquired about the applicant’s relationship with her [brother] in Sri Lanka, she responded vaguely to the question, and then indicated that she is really not sure where her brother in Sri Lanka is because she has lost contact with him. The Tribunal suggested that perhaps she may know about him through her sister, and the applicant hesitatingly agreed that her sister is in contact with her brother in Sri Lanka, and with more hesitation, that she and her sister do talk about him. She stated that he has a family and stays mostly outside of Colombo for employment reasons, but he lives in the family home in Colombo intermittently. The Tribunal considered the applicant’s hesitation to provide information about her brother suggested she was seeking to minimise her relationship with her brother, and the Tribunal was not convinced that she was alienated from her brother as claimed or ‘disowned” as described by the applicant’s witness. However, given the circumstances where the applicant has been absent from Sri Lanka for a long period and that her brother has his own family responsibilities the Tribunal accepts this relationship is not strong. On this basis, the Tribunal does not accept the applicant’s brother has “disowned” the applicant or that he and his family will not provide the applicants with support within their capacity to do so, on their return to Sri Lanka.

13. In support of her claim that she was alienated from her family because of her conversion to Islam and marriage to her husband, the applicant told the Tribunal that her relationship with her sister in Australia, [Mrs A] , was also not close when she arrived in Australian in 2004. The Tribunal noted that the applicant told the Tribunal that she visited her sister subsequent to her conversion and marriage in 1997 a number of times, including once with her son,  before her last arrival in 2004. The Tribunal does not consider this is the conduct of siblings who are alienated from one another. However, as discussed below, as both the applicant and her sister, [Mrs A], testified, their relationship is now very close, and on the evidence of the applicant, the Tribunal accepts they give each other strong and mutual practical and emotional support.

14. The Tribunal accepts the evidence of the applicant, supported by the evidence of her witnesses, that the applicant’s parents had a family property in Sri Lanka. On the basis of the evidence of the applicant and her sister, the Tribunal accepts there are legal issues associated with the inheritance of this property because her parents did not leave a will and [one of the applicant’s siblings] is seeking a greater share in the estate, claiming [he/she] provided greater support to [the] parents. The applicant stated that even after ten years the legal processes are on-going and it is difficult to progress the case because most of the applicant’s siblings, including [the sibling] who is contesting an even split of the estate, are in Australia. The applicant stated that she is not involved in this dispute, implying this was because she was alienated from the family and would therefore not be a beneficiary of the estate. However, the applicant agreed that the property will eventually be sold and that she will be entitled to a share of the proceeds. In her witness testimony, the applicant’s sister also indicated to the Tribunal that there was no obstacle to the applicant receiving a share of the estate. The Tribunal accepts the applicant’s marriage and conversion may have placed strains on her familial relationships, but on the evidence before it, the Tribunal does not accept the applicant has been disowned by her family, or that she has been denied familial support for this reason. On this basis, the Tribunal does not accept any of the applicants will be denied familial support in the future should this be required.

    Socio-economic deprivation

15. The applicant has claimed that there a real risk she will suffer significant harm in Sri Lanka because she will not be able to survive; that she will not be able to work as well as look after her son. In post-hearing submission, the applicant’s representative submitted that if the applicant had to return to Sri Lanka, she would have to find a place to live and to find employment.

16. The Tribunal accepts the applicant’s evidence that she has not worked in Australia and she receives a Centrelink payment and support from an NGO for her son’s expenses, school books etc., and that her sister helps her sometimes depending on her needs.

17. In this consideration, the Tribunal has taken into account the applicant’s claim that her husband is either unwilling or unable to offer her assistance if she returns to Sri Lanka.  The applicant stated she and her husband remain married, but they have been separated many years and have grown apart. She stated that she has not taken action to resolve the status of her marriage because her husband is in Sri Lanka, and in Australia her marriage is not valid. The Tribunal accepts the applicant is still married but separated from her husband.

18. The applicant claimed at hearing that her husband provided her with some limited assistance on one occasion in the past, but he cannot give her financial assistance now because he gave up his part in the [family] business and is not doing well financially, struggling to pay for the education of [his] children at [university] in [Country 1]. The applicant gave evidence that her husband is from an established business family. While the applicant was vague in her evidence about his support, she indicated that their separation was amicable and she stated that her husband would support her if he was doing better. The Tribunal considers the applicant’s evidence indicates that her husband has financial resources at his disposal, some of which he is currently using to support [his] children in fee paying [tertiary] education in [Country 1]. The Tribunal also notes that the applicants are supported in Australia through Centrelink payments, NGOs support and some additional support from her sister and on this basis considers that the need for additional support from her husband has been limited. The Tribunal draws the conclusion that the applicant’s husband’s limited financial support in the past does not derive from his unwillingness or inability to provide support to the applicants, but because they are supported through other means. On the evidence before it, the Tribunal is satisfied that the applicant’s husband will provide both the applicant’s with support in the future if this is required.

19. The Tribunal also put country information above to the applicant which indicates that in Sri Lanka while they tend to favour men, divorce laws are in place to govern marriage and divorce. The Tribunal also took into account country information provided by the applicant to the Tribunal that financial maintenance can be ordered under the Maintenance Act.”[12] The Tribunal put to the applicant that it would expect that if needed, she would obtain support from her husband through a court process under Sri Lankan law. The applicant was vague in response, stating only that she has not taken any action to obtain support because her husband is in Sri Lanka and she is here. She stated that she last spoke with her husband a couple of months ago – that they don’t speak about much but he speaks with their son. On the evidence before it, the Tribunal finds the applicant continues to have an amicable relationship with her husband, albeit not a marital relationship, and that the applicant considered there to be no need to divorce or to obtain financial maintenance. As above, the Tribunal does not accept that the applicant’s husband cannot or will not offer the applicant and the applicant’s son basic assistance and support in the future. However, in the event that the applicant wishes to divorce, the Tribunal notes that provision for the applicants’ financial maintenance by her husband can be obtained through the judicial process. For all the reasons above, the Tribunal does not accept the applicants will not be supported by the applicant’s husband in future if this is required.

    [12] AAT, ff. 72 - 75

20. It was submitted that the applicant’s sister, [Mrs A] and her husband, are themselves not able to provide a high level of financial support if the applicant had to return to Sri Lanka, because they have their own financial commitments and [Mrs A] has a medical condition that prevents her from being able to work full-time. A medical certificate was provided supporting the claim that the applicant’s sister has various medical conditions and the Tribunal accepts this is the case.[13] The Tribunal accepts [Mrs A]’s ability to support the applicants is limited. However, on the evidence of the applicant and [Mrs A], the Tribunal is satisfied that [Mrs A] will to continue providing the applicant and her son with a low level of support if required.

    [13] AAT, f. 206

21. As discussed with the applicant at hearing, the Tribunal acknowledges that the applicant has not been employed for some time, but noted that, on the accepted evidence above, she has strong employment skills and history Sri Lanka, and speaks Singhalese and English. The Tribunal put to the applicant that she is well positioned to find work in [Occupation 1] or client service roles, given her job [experience]. In response, the applicant indicated that most of the people in the [Occupation 1] industry were Muslim but that she does not know the situation now. The applicant’s response was confused and she could not explain why this may be an issue for her in regard to her employment, given that she identifies as Muslim, but stated that it will be more difficult now because she has converted to Islam and she may not be accepted. The applicant did however state that most Muslim people speak Tamil, but she speaks Singhalese and English, and that this may present a barrier to her obtaining employment. The applicant told the Tribunal that she did not experience problems when she lived in Sri Lanka but there may be problems now  because Buddhist are people make problems for other religions, and this may affect her chances of employment.

22. As set out above, country information was put to the applicant at hearing that Sri Lanka is a multi-ethnic society, diverse in culture, linguistically, in ethnicity and religion, and that the Constitution provides that no-one shall be discriminated against on the grounds of race, religion, language, cast, sex, political opinion, place of birth or any such grounds. As discussed with the applicant, while DFAT assess that there are currently no official laws or policies that discriminate on ethnicity or language, including in relation to access to education, employment of access to housing, but there is a moderate level of discrimination between ethnic groups. On the basis of the country information before it, the Tribunal accepts the applicant may experience some discrimination in employment from Tamil speakers given that she does not speak Tamil, and potentially from Sinhalese employers who may discriminate against Muslims, as discussed further below, and that this may mean she may enjoy less favourable social, economic or cultural rights than she may wish. However, the Tribunal also notes that the applicant did not have difficulty obtaining employment in the past as Sinhalese, a Singhalese speaker and Sinhalese convert to Islam, and does not consider the societal discrimination she might experience as a Sinhalese, or as a Sinhalese convert to Islam, will be such as to prevent her from obtaining employment and accommodation, and supporting herself and her son on return to Sri Lanka.

23. The applicant claimed she will not be able to work because she will need to care for her son. The Tribunal notes the applicant’s son is now [age] and considers that he is of an age where he can largely care for himself. The Tribunal does not accept that applicant’s care for her son will present a barrier to her employment.

24. The Tribunal has considered the applicant’s claim that religious discrimination by the Buddhist community against Muslims will prevent her from finding employment and earning an income to support herself. In respect of this claim, the Tribunal has considered DFAT advice above, discussed with the applicant, that DFAT are aware of reports that the former Rajapaksa government sanctioned religious discrimination, particularly through support provided to BBS, but is not aware of any similar reports since the change of government in 2015. The Tribunal has also taken into account the DFAT country information above put to the applicant indicating that the Muslim Sri Lankan community, while predominantly Tamil speaker, is also ethnically and linguistically diverse, especially in Colombo. The Tribunal also notes that the applicant has an employment history in a responsible position in an international company, and client service skills and employment, including fluency in English, and while on the evidence before it, the applicant may experience at most a moderate level of societal discrimination from some Tamil, Sinhalese or Muslim Sri Lankans employers, the Tribunal does not accept that this will be such that she will not find employment in Colombo and be able to support herself. The Tribunal does not accept the applicant has a real risk of significant harm on this basis.

25. Taking all the above into account, the Tribunal does not accept the applicant’s claim that she will not be able to survive, support herself or obtain accommodation in Sri Lanka. The Tribunal is satisfied the applicant will find employment, and if required will obtain some support from her husband and her sister and brother and have some access to family resources. The Tribunal also considers the applicant has demonstrated through her employment in a responsible job, that she has the capacity to act with initiative and independence. The Tribunal does not accept that the applicant will not be able to source accommodation on return to Sri Lanka.

26. The Tribunal finds there is a not real risk that any of the applicants will be subjected to degrading treatment because they will not be able to support themselves or find accommodation.  The Tribunal does not accept there are not substantial grounds for believing that of any of the applicants have a real risk of significant harm on this basis.

    Societal discrimination, sexual harassment and violence against the applicant as a single woman without male protection/convert to Islam

    Societal discrimination

27. The Tribunal has considered the applicant’s claim at hearing that her major fear on return to Sri Lanka is living as a single woman. It was submitted that the applicant has a real risk of being subject to societal discrimination, harassment and violence, and that this risk is heightened because she will be identified as a convert to Islam. On the accepted circumstances above, the Tribunal accepts the applicant will live as a single woman separated from her husband with her [son] in Sri Lanka. The Tribunal also accepts the applicant is a convert to Islam and that there is a possibility that she will be identifiable in the community as a Muslim convert because she speaks Sinhalese but has a Muslim name and, as disced below, may be attired in dress typically associated with Muslims in Sri Lanka. 

1. The applicant told the Tribunal that most people in Sri Lanka, even men, do not live single lives, and she believes that the community will regard her as strange and will not accept her when she is known to be a single parent living with her son. At hearing, the applicant could not provide any suggestions about how the claimed lack of acceptance may manifest itself, but her representative submitted she faces a real risk of discrimination and ostracism as a single woman, heighted because she is a convert to Islam, that amounts to degrading treatment as exhaustively defined in s.5(1) of the Act.

2. On the basis of the country information submitted by the applicant to the Tribunal prepared for the Canadian Immigration and Refugee Board in respect of single Tamil women relocating to Colombo, the Tribunal accepts that published research indicates that the presence of single women living in Colombo is “an increasing phenomenon” but it is still not “common” for a single woman to live alone in Sri Lanka. In this respect, the Tribunal has taken account of country information provided to the Tribunal by the applicant that in 2003, “In Sri Lanka, one in five households is headed by a woman … 23% are located in urban centres…”[14] The Tribunal notes this research has focussed on relocation of single Tamil women to Colombo where remuneration is better, and indicates that there can be negative assumptions about their character.[15] The Tribunal also takes into account other academic opinion sourced for the Canadian Immigration and Refugee Board submitted by the applicant in respect of Tamil women displaced after the civil conflict, that there are gendered norms and cultural beliefs that stigmatise women from living alone in Sri Lanka, and that life for such women in Colombo “is precarious due to economic, social and, political and gendered structural forms of inequality and risk.”[16] In considering the applicant’s circumstances in the context of this assessment of the situation of single Tamil women in Colombo, the Tribunal assesses that the applicant’s circumstances differ considerably from those of single Tamil women displaced from conflict. The Tribunal accepts the applicant may be affected by generalised gendered norms that stigmatise women living alone, but notes that the applicant, as accepted above, is of the dominant Singhalese ethnicity and language group, previously well established in Colombo, and possesses a range of financial and social resources.  The Tribunal considers these circumstances are strong protective factors against societal discrimination faced by the applicant.

   [14] AAT, f. 69, Daily News [Colombo], 8 August 2003, Nadira Gunatilleke, “Discriminating against vulnerable groups.”

   [15] AAT, f. 64

   [16] AAT, f. 64

3. In considering the applicant’s circumstances as a single woman/ Sinhalese convert to Islam, the Tribunal has also taken into account country information above, discussed with the applicant, that Colombo is a populous, culturally and linguistically diverse, highly integrated multi-ethnic city of commercial and economic opportunity and mobility. On the country information before it, the Tribunal accepts that the applicant may not be accepted by some people in the community in Sri Lanka, may be viewed as an oddity and with suspicion, and may experience societal discrimination and ostracism by some members of the community as a single woman/Sinhalese convert to Islam. The Tribunal accepts that this may be uncomfortable and emotionally difficult for her to manage. However, on the basis of the country information before it and the applicant’s accepted circumstances, the Tribunal, does not accept that the discrimination and ostracism the applicant fears will be more than a moderate level.

4. The Tribunal has had regard to the definition of significant harm under s.36(2A), with particular consideration of s.36(2A)(e), that the non-citizen ‘will be subjected to degrading treatment of punishment’, and the definition of degrading treatment or punishment’ as exhaustively defined in s.5(1) of the Act as an act or omission that causes, and is intended to cause, “extreme humiliation which is unreasonable.’ The Tribunal finds that while the applicant may experience at most a moderate level societal discrimination, including lack of acceptance, distrust and ostracism by some, this treatment does not rise to the level of degrading treatment or punishment as defined. The Tribunal does not accept the applicant has a real risk of significant harm on this basis.

   Sexual harassment, assault and rape

5. The Tribunal has considered the applicant’s claims that she has a real risk of significant harm as a single woman because she will be subject to sexual harassment, assault and rape because she has no family to protect her. At hearing, the applicant claimed it is dangerous to be a single woman without male protection in Sri Lanka because the incidence of sexual harassment, assault and rape of single women, including widows and single mothers, is high.

6. In response to DFAT country information above, put to applicant at hearing, that the Constitution guarantees against sexual discrimination and that laws that criminalise and penalise rape and sexual assault and that sexual harassment against women, it was submitted that this does not mean that sexual discrimination and violence against women is not pervasive at the societal level or that women are safe from sexual violence. The Tribunal has considered the country information above, put to the applicant at hearing, that legislation and the penal code criminalise violence against women, and although independent advice suggests that many perpetrators are not brought to justice, because women often do not report violence against them, that there are no official laws or polices that support violence against women, and that while it was too early to assess the effectiveness, the current government is committed to taking action to prevent the abuse of women (and children).

7. In considering whether the applicant in her circumstances, has a real risk of significant harm from men in the community because she is an single woman, the Tribunal has taken into account DFAT advice above, discussed with the applicant, that the incidence of sexual assault and rape have remained steady or increased in recent years, and tend to be higher in remote areas. The Tribunal has also taken into account a report submitted by the applicant’s representative of causes of men’s violence against women, which suggests that male use of violence against women, particularly against their female partners, is pervasive in the Asia-Pacific region, including Sri Lanka.[17] The applicant submitted two articles by David Rush, commenting on the Sri Lankan data used in this report, and noting that 15% of men surveyed admitted to having committed rape, very predominantly partner rape, at some time in their life.[18] As well as examining male attitudes to violence against women, this report also suggest there is a low charge rate of perpetrators across the region, particularly relating to marital rape, flowing from patriarchal attitude to women.

   [17] Emma Fulu et all, “Why do some men use violence against women and how can we prevent it”, Quantitative findings from the United Nations multi-country study on men and violence in Asia and the Pacific.

   [18] AAT, ff. 35 – 38, Dave Rush, “On violence against women in Sri Lanka.”

8. On the basis of the country information before it, the Tribunal accepts that sexual harassment, assault and rape occur in Sri Lanka, including Colombo, and that the incidence is underpinned by cultural attitudes to gender. The Tribunal also accepts that the applicant may have a marginally greater risk than the female population in general to sexual harassment, assault and rape, given she may be identified as a woman living only with her [age] year old son and sometimes identifiable as a Sinhalese Muslim convert. The Tribunal notes that the applicant will have the company of her son, she has accommodation options which will provide her with emotional and practical support if she chooses, as she did in the past when she lived in an annex to someone’s home, when her husband was also living at the home of his first wife. The Tribunal also notes the applicant has the option of living alone among the Muslim community, as she did in the past, where she is with people who share her religion, are multi-ethnic and some of who will speak English or Sinhalese.   

9. On the basis of the country information before it and the applicant’s circumstances, the Tribunal considers that it is highly speculative to draw the conclusion that the applicant has a real risk of significant harm from sexual harassment, assault and rape or violence of any kind. On the country information before it and the circumstances of the applicant, the Tribunal also considers the possibility the applicant faces harm from sexual harassment, assault and rape or violence, is remote. On the evidence before it, the Tribunal does not accept there are substantial grounds for believing there is a real risk the applicant will be subject to significant harm on this basis.

10. The Tribunal has also considered the submission of the applicant’s representative that widows and single mothers can be vulnerable to being pressured to exchange sexual favours for support, and notes that in a telephone interview with the Canadian Research Directorate, a socio-cultural anthropologist assessed that widows and single mothers are particularly “vulnerable to being pressured to exchange [sexual] favours for support.”[19] The Tribunal has found above that the applicant will be able to support herself and will also be able to draw on support from her husband and family. The Tribunal does not accept the applicant will need support such that she will be vulnerable to pressure for support for sexual favours. The Tribunal does not accept there is a real risk the applicant will be subject to significant harm on this basis.

    [19] Immigration and Refugee Board of Canada, Sri Lanka: Ability of single Tamil women to relocated and access housing and employment in Colombo, 8 April 2015, AAT f. 63

11. The Tribunal has also considered the applicant’s claims that as a single woman/single woman without male protection she will be subject to rape, sexual abuse and torture by police and military forces who act with impunity, and that police cannot be relied on for protection because the military and the police are often perpetrators of these crimes against women. In support of this claim the applicant has provided an article dated 25 April 2014, referring to Sri Lanka as having been named by the UN as among 21 countries where rape and other sexual violence has been committed in current and recent conflict.[20] The report identifies armed groups, militias, rebels and security forces suspected of rape and other forms of violence in conflict situations. It was submitted that while the government may change, the attitudes of the police, army personnel and general population are still the same. The Tribunal has taken this information into account, but as discussed with the applicant at hearing, the Tribunal notes independent DFAT advice above, that such conduct occurred in the civil conflict and its aftermath in Sri Lanka, that DFAT report that the conflict in Sri Lanka ceased in 2009, and that there have been allegations of sexual assaults and rape attributed to the Sri Lankan military in the conflict zones of the north and east.[21] The Tribunal also put to the applicant DFAT country information that, “the security situation in Sri Lanka has greatly improved since the conflict ended in May 2009.”[22]

    [20] Dave Rush, Sri Lanka named in UN rape in conflict report, 25 April 2014

    [21] DFAT, Country Information Report, 18 December 2015, and confirmed in the updated DFAT Country Report Sri Lanka, 24 January 2017.

    [22] DFAT, Country Information Report, 18 December 2015, p. 7 and confirmed in the updated DFAT Country Report Sri Lanka, 24 January 2017.

12. In response to the independent country information above, the applicant stated that some incidents occur but they are not allowed to be published because the government does not want other people to know what is going on in the country. It was submitted that for every comment from DFAT, the representative could provide counter information.

13. As discussed with the applicant at hearing, the DFAT advice above is derived from on-the-ground discussions as well as a very wide range of relevant and credible open source reports, including those produced by the UK Foreign and Commonwealth Office, the US Department of State; those from relevant UN agencies, including the Office of the United Nations High Commissioner for Refugees, the United Nations Office on Drugs and Crime, the United Nations Children’s Fund, and the United Nations Development Programme; recognised human rights organisations such as Human Rights Watch and Amnesty International; Sri Lankan non-governmental organisations and reputable news organisations.[23] The Tribunal has considered the applicant’s views but gives greater weight to the DFAT information as being independent and authoritative.

    [23] DFAT, Country Information Report, 18 December 2015, p. 3

14. On the evidence of the applicant, she was a resident of Colombo and the Tribunal finds that on return to Sri Lanka she will live in Colombo. The Tribunal does not accept that there is any longer civil conflict in Sri Lanka or that the applicant will live in the north or east, and for this reason does not accept this claim.   On the basis of the independent country information before it, the Tribunal does not accept that police and military in Colombo perpetrate violence against women. Considering the applicant’s individual circumstances and the country information before it, the Tribunal does not accept the applicant the applicant has a real risk of significant harm from police and military on return to Sri Lanka.

15. The Tribunal has also considered the applicant’s claim that there is a real risk she will be subject to significant harm because the security environment is generally poor and life is dangerous in Sri Lanka. The applicant’s claims in this respect were extremely vague. She said she did not know what she feared but she is scared about her safety and the safety of her son. In support of this claim, the applicant’s representative in her post-hearing submission referred to DFAT’s Smart Traveller website that advises travellers to exercise a high degree of caution because of the unpredictable security environment.[24] It was also submitted that Sri Lanka is not secure in the aftermath of the war. The applicant’s sister supported the applicant’s assessment about security in Sri Lanka stating that when she returned recently she felt unsafe and saw reports of rape against women.

    [24] AAT, f. 202

16. In response to DFAT advice as above, put to the applicant that the security situation in Sri Lanka has greatly improved since the end of the conflict in 2009, the applicant stated that the government is essentially the same government as before - only the head has changed – and that negative matters are not reported, only positive reports and that reality is totally different. She stated that safety is not available to the public unless you know people who are running the country. The applicant’s representative further submitted that police do not have enough resources, prosecution takes forever, and the judicial system is not working. In considering the applicant’s claims in respect to security in Sri Lanka, The Tribunal has taken account of DFAT assessment, put to the applicant, that there is no law or Government policy which hinders access to state protection and that any citizen can exercise avenues of redress through the police, judiciary and the Human Rights Commission of Sri Lanka. The Tribunal also takes into account DFAT advice put to the applicant, that the Sri Lanka Police Service is responsible for maintaining law and order in Sri Lanka and that it has a strength of about 90,000 members. On the evidence before it, the Tribunal considers the possibility the applicant has a real risk of significant harm because of the general security environment in Sri Lanka, is speculative and remote. The Tribunal does not accept that applicant has a real risk of significant harm on this basis. 

    Societal discrimination, harassment and violence arising from the applicant’s identity as a Sinhalese convert to Islam.

17. The Tribunal has considered the applicant’s claim that she has a real risk of significant harm from the community from societal discrimination, harassment and violence against the applicant because she will be identifiable as a Sinhalese convert to Islam. 

18. In this consideration, the Tribunal accepts the applicant’s consistent claim that she converted to Islam to marry her husband. The Tribunal further accepts the applicant’s explanation that the [Occupation 1] industry was dominated by Muslim and that she was well disposed to Islam because she was with Muslim people most of the time. The Tribunal considered that other than to enable her marriage to her husband, the applicant’s evidence about the reasons for her conversion at hearing was very vague. However, in post-hearing submission, it was claimed that the applicant was attracted to the disciplined lifestyle and attitudes to family and charitable life displayed by her Muslim associates.

19. The applicant explained to the Tribunal that to convert, she had to purify herself and embrace the Islam faith. In 1996, she went to Qur’anic classes and was formally converted to Islam when the Imam (a woman) led her with certain words from the Qur’an in a private meeting. When asked about the main beliefs of Islam, the applicant was extremely hesitant, but with time and prompting, she mentioned most of the six main beliefs of Islam. The Tribunal was satisfied that the applicant converted to Islam in 1996 and formed the view that she has a superficial understanding of Islam.

20. The Tribunal accepted the applicant’s evidence that she did not attend Muslim worship in Sri Lanka; that mostly her husband went to the mosque but he was not very involved in Islam; but that she observed Islam in Sri Lanka by fasting and celebrating at fasting time. The Tribunal accepted the applicant’s evidence that she had occasionally worshipped at the mosque in Sri Lanka, but never in Australia, but that she had shown commitment to Islam by going with her husband to a pilgrimage site in Saudi Arabia in 1997 and to the same site with a group in 2001. The Tribunal accepts the applicant’s direct oral evidence that in Australia, she fasts at fasting time, eats halal and tries to lead a life in the Muslim way. The applicant’s witness testified that she celebrates Eid with the applicant and her son, and the Tribunal accepts this.

21. In support of the applicant’s commitment to Islam, it was submitted that she had raised her son as Muslim. She told the Tribunal that she sometimes speaks with her son about how to lead a Muslim life. When the Tribunal enquired how he practices Islam, the applicant stated that when he was little she took him to learn the Qur’an but she stopped because his father was not here and it was difficult to take him. The applicant stated that now her son is older he has not resumed any Islamic study because he goes to a state school and she does not take him because there are problems with radicalisation of Muslims; she was planning to take him, but time flew and now he also has less time. She stated that her son does however, fast at fasting time. The Tribunal accepts the applicant’s evidence that she had intentions to raise her son as Muslim but on her own evidence, she has not pursued this in a practical sense.

22. In post-hearing submission, the applicant’s representative submitted that the applicant’s Islamic beliefs are not doctrinal but that, without being very sophisticated, they are demonstrated in day to day observance e.g by eating halal and observing Ramadan. Overall, on the evidence of the applicant, the Tribunal accepts she converted to Islam in 1996 and that she maintains adherence to this faith in a low level, unsophisticated, non-doctrinal way. The Tribunal accepts that the applicant will continue practising her Islamic faith consistent with her current conduct; that is that she will not attend Islamic worship, but will eat halal and fast and celebrate Islamic festivals.

1. The Tribunal has considered, and accepts, the applicant’s claim that she may be identifiable in the community as a Sinhalese convert to Islam, because while she speaks Sinhalese, she has a Muslim name and if wearing salwar kameez a style of dress which while worn by many is more associated with Muslim people in Sri Lanka.

2. The applicant presented in western dress at the hearing, and the Tribunal enquired about her dress in Sri Lanka. She indicated that in Sri Lanka, she dressed modesty, and provided a photo of herself dressed conservatively in salwar kameez and stated that if she were in a Muslim area of Colombo she would dress in this kind of attire. The Tribunal accepts that as part of her Islamic practice, the applicant may dress modestly if in a Muslim area. However, the Tribunal does not accept the applicant demonstrated any doctrinal commitment to wearing traditional Islamic dress such as head scarf or hijab, and on the evidence before it, the Tribunal does not accept the applicant will dress in traditional Muslim clothing.

3. The Tribunal considered the applicant’s claim that once identified as a Muslim convert, she will not be accepted by Muslims who are mostly Tamil, or Sinhalese who are suspicious of converts. The Tribunal sought to understand what impact this might have on her life and the applicant could not identify any issues but the Tribunal understood that she is concerned she will not be well-regarded and may experience societal discrimination.

4. In post-hearing submission, it was claimed that in areas where Muslims are most numerous such as Kandy, Muslim women reported that they felt increased pressure to wear the hijab and were attacked by non-Muslims for their Islamic dress. It was submitted that this report supports the applicant’s evidence that if she were to return to Sri Lanka, she would have to wear Islamic clothing if she were to live in a Muslim community. The Tribunal has considered this claim but notes first that the applicant did not give evidence that she would be forced to wear the Muslim hijab, and given that the applicant was provided with ample opportunity to explore this claim, the Tribunal does not accept the applicant considers that this will occur in her circumstances. On the country information before it and on the basis of the applicant’s evidence, even in the event the applicant chooses to live in a predominantly Muslim community, there will be no pressure for her to dress in conspicuously conservative Muslim attire such as the hijab. The applicant indicated that she may wear the ubiquitous salwar kameez if she were in a Muslim area. In the view of the Tribunal, given that she will be living in multi-ethnic, diverse Colombo, where, on the evidence before it, many expressions of different culture, such as attire, are accepted, the applicant will attract minimal attention from the community, either Tamil or Sinhalese as a convert to Islam. The Tribunal does not accept the applicant has a real risk of significant harm on this basis.

5. The Tribunal has considered the applicant’s claim that if she is living in a Muslim area, she will have to wear Islamic clothing.   The applicant’s representative has submitted that the applicant will be compelled to wear Islamic dress citing a report that Muslims in the north feel under increasing pressure to wear the Hijab. The applicant’s representative also submitted that Tamils distrust Sinhalese women in hijab. As above, the Tribunal does not accept the applicant will wear hijab and does not accept there is a real risk the applicant will be subject to significant harm on this basis.

6. The Tribunal has taken into account country information above, put to the applicant, that while most Sri Lankans tend to live alongside members of their own ethnic groups, in major urban areas, the ethnic groups, Sinhalese, Tamils and Muslims, are more integrated and live in close proximity to each other. The Tribunal accepts the DFAT advice above, put to the applicant, that the ethnic groups in Colombo are highly integrated. The Tribunal also notes country information that inter-marriage between religious groups sometimes takes place in Sri Lankan society but is generally not common. Noting country information above that the Muslim community, currently 9.2% of the population is fast growing and DFAT assess that there is a moderate risk of societal discrimination against Muslims, the Tribunal accepts the applicant may experience moderate societal discrimination as a Muslim.

7. The Tribunal has considered the claim that there are few Singhalese converts to Islam and almost all Muslims in Sri Lanka are of Tamil ethnicity. It is submitted that in Sri Lanka, although Islam is a proselytizing religion, it is closely tied to ethnicity and as such Tamil Muslims do not accept converts from other ethnic groups. It is further submitted that as the applicant does not speak Tamil, she would be regarded as an outsider by Tamil Muslims. The Tribunal has considered the evidence before it, and also notes, the applicant’s representative’s further submission that Sinhalese would also regard her with suspicion, noting that the US State Reports on Country Human Rights Practices 2016 note that "[M]uslims were viewed as the least assimilated of all the country's many ethnic and religious communities. They were also frequently the target of criticism, especially by Sinhalese, for their distinct cultural practices in dress, food and lifestyle".[25]

   [25] AAT, f. 2014

8. Taking account of all the information before it, the Tribunal accepts that the applicant may experience moderate level societal discrimination, such as social criticism and stigma, as a Muslim and a Sinhalese convert to Islam. The Tribunal has had regard to the definition of significant harm under s.36(2A), with particular consideration of s.36(2A)(e), that the non-citizen ‘will be subjected to degrading treatment of punishment’, and the definition of degrading treatment or punishment’ as exhaustively defined in s.5(1) of the Act as an act or omission that causes, and is intended to cause, “extreme humiliation which is unreasonable.’ The Tribunal finds that while the applicant may experience at moderate level societal discrimination as a Muslim and Singhalese convert to Islam, this treatment does not rise to the level of degrading treatment or punishment as defined. The Tribunal does not accept the applicant has a real risk of significant harm on this basis.

9. The Tribunal has considered the applicant’s claim at hearing that, as a Muslim, she is real risk of significant harm from Sinhalese-Buddhists in Sri Lanka and referred to instances of abuse and violence between Muslims and the nationalist group, Bodhu Bala Sena ("BBS"). The applicant’s representative submitted that although, as discussed at hearing, the election of the Sirisena Government has meant that the influence of anti-Muslim groups such as the Bodhu Bala Sena ("BBS") had declined, violent incidents directed at the Muslim community ranging from hate speech, attacks on Muslim-owned property and businesses, attempts to ban Muslim attire, discrimination in employment and provocative displays of Buddhist insignia close to Muslim places of worship, continue to occur.

10. The Tribunal discussed with the applicant DFAT advice above that there were a number of anti-Muslim involving attacks on property and a mosque and physical violence in 2013, and that in 2014 violent riots over a two day period occurred between Buddhists and Muslims resulting in four deaths, three of whom were Muslim, and many injured. The Tribunal also discussed with applicant that in this period the BBS operated with support from the Rajapaksa government, but that BBS activities drastically decreased in 2015 with the change of government and the advent of the Sirisena regime, resulting in a reported drop in anti-Muslim attacks in 2015. The Tribunal also notes DFAT advice put to the applicant that the Sirisena government has publicly said it is committed to ethnic and religious reconciliation, and their assessment, put to the applicant at hearing, that given the size of the Muslim population in Sri Lanka and the relatively low number of incidents of violence, there is a low risk of political or religious violence for Muslims in Sri Lanka. In response, at hearing, the applicant submitted in response that while the government had changed the bureaucracy and attitudes remain the same. The Tribunal has taken into account the applicant’s submissions, but considered DFAT’s independent advice to be authoritative and on this basis does not accept any of the applicants have a real risk of harm from anti-Muslim groups in Sri Lanka.

11. The Tribunal has considered all the applicants’ accepted circumstances, and has not accepted that any of the applicants face significant risk of harm because the applicant will not be she will not be able to support herself. The Tribunal accepts the applicant has a moderate risk of societal discrimination as a single woman without male protection, single parent and Sinhalese convert to Islam. The Tribunal has not accepted the applicant has a real risk of significant harm from sexual harassment, assault or rape from community or military or police as a single woman living alone with her son. The Tribunal has also assessed the applicant’s overall circumstances and is not satisfied the applicant’s greater risk of societal discrimination from a range of communities, elevate her risk of societal discrimination to more than a moderate level. The Tribunal has assessed the cumulative effect of this risk and finds that the applicant faces at most a moderate risk of societal discrimination. Having regard to the definition of  significant harm as defined, the Tribunal does not accept the applicant has a real risk of significant harm

12. The Tribunal has had regard to the definition of significant harm under s.36(2A), with particular consideration of s.36(2A)(e), that the non-citizen ‘will be subjected to degrading treatment of punishment’, and the definition of degrading treatment or punishment’ as exhaustively defined in s.5(1) of the Act as an act or omission that causes, and is intended to cause, “extreme humiliation which is unreasonable.’ The Tribunal finds that while the applicant may experience at most a moderate level societal discrimination; this treatment does not rise to the level of degrading treatment or punishment as defined. The Tribunal does not accept the applicant has a real risk of significant harm on this basis.

    The applicant’s son

13. The Tribunal has considered that the applicant’s son left Sri Lanka when he was [age] and that it will be difficult for him to adjust to life in Sri Lanka and that he will not fit anywhere because he is English speaking and raised in Australia. The Tribunal accepts the applicant’s evidence that her son is studying at [a] Secondary School in Australia, and that he converses mostly in English. The applicant explained that her husband speaks Tamil, and as she does not speak Tamil, they spoke English together, but her son knows some words of Singhalese from spending time with his aunt, her sister.

14. The Tribunal acknowledges the applicant’s son strong ties to Australia. The Tribunal also acknowledges the applicant’s son may experience initial difficulties adjusting to life in Sri Lanka given he has lived in Australia most of his life. However, the Tribunal notes that the applicant’s father with whom, as accepted, he has frequent contact. The Tribunal considers the applicant’s son will have not only the emotional and practical support of his mother but also his father on return to Sri Lanka. Having regard to the definition of significant harm in s.36(2) of the Act, the Tribunal finds that the initial difficulties the applicant’s son may experience on return to Sri Lanka do not constitute significant harm.

15. The Tribunal has had regard to all the circumstances and findings above, both individually and cumulatively, and finds there are not substantial grounds for believing that there is a real risk that the applicant’s son will suffer significant harm upon being removed from Australia to Sri Lanka.

    Support to the applicant’s sister

16. The Tribunal accepts the applicant and the applicant son provides strong emotional and practical support to [Mrs A]’s family, noting that [Mrs A] has various medical conditions. Having regard to the definition of significant harm in s.36(2) of the Act, the Tribunal finds that the initial difficulties the applicant’s son may experience on return to Sri Lanka do not constitute significant harm.

17. The Tribunal has had regard to all the circumstances and findings above, both individually and cumulatively, and finds there are not substantial grounds for believing that there is a real risk that any of the applicants will suffer significant harm upon being removed from Australia to Sri Lanka.

    CONCLUSION

18. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

19. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Amanda Paxton
    Member