1510182 (Refugee)

1510182 (Refugee) [2018] AATA 377 (15 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1510182
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Amanda Paxton
DATE:15 February 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 15 February 2018 at 12:05pm

CATCHWORDS
Refugee – Protection visa – Sri Lanka – Ethnicity – Muslim (Moor) – Fear of Persecution – Father’s business targeted by Muslim gangs – Suspected links with criminal Muslim gangs– Father disappeared – Safety fears – Cut off communication with family – Remote chance of harm – Credibility issues
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91R, 91S, 499
Migration Regulations 1994, r 1.12 Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
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

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).
The applicants, who claim to be citizens of Sri Lanka, applied for the visas on [date] October 2013 and the delegate refused to grant the visas on [date] July 2015.
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 husband’.
The applicant appeared before the Tribunal on 15 March 2017 to give evidence and present arguments. The applicant’s husband attended the Tribunal to support his wife but did not give evidence.
The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.
A copy of the delegate’s decision record dated [July] 2015 refusing the applicant’s current application for protection was provided to the Tribunal by the applicant.[1]
[1] AAT 1510182, ff. 1 – 14.
RELEVANT LAW
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). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. 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.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet 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’).
‘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.
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
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of 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.
Member of the same family unit
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 spouses.
In this case, a certified copy of the applicants’ marriage certificate was provided to the Department. Based on this documentation, the Tribunal accepts the second named applicant is the applicant’s husband and a member of the applicant’s family unit in accordance with r.1.12.
CONSIDERATION OF CLAIMS AND EVIDENCE
In her Protection visa application, the applicant declares she was born [date] in Colombo, Sri Lanka, married in 2009, adheres to the Muslim religion and identifies as a Sri Lankan Moor.
The applicant’s claims are set out in her Statement of Claims dated [October] 2013 accompanying her Protection visa application. The Tribunal has examined the applicant’s statement and considers the summary contained in the delegate’s decision record provided to the Tribunal by the applicant is an accurate reflection of her claims. These claims are as follows:
·     The applicant and her husband are Ceylonese Moors (Muslim). The applicant grew up in [Suburb 1], Colombo.
·     The applicant's family lived in a house inherited by her mother in a Muslim area [at] [address 1].
·     Following an increase in violence and gang activity in their local area in the year 2000, the applicant's father purchased a house in a Buddhist area of Colombo and moved the family to [address 2].
·     The applicant's father was a successful businessman and owned [multiple] [stores] and as a result of this became a target for Muslim criminal gangs. He was eventually forced to close one of these stores on discovering that the gangs wanted to take possession of it.
·     In 2002, following unrest involving Buddhist groups targeting Muslims; the applicant's family home was destroyed. The applicant escaped with the assistance of a family friend and was traumatised by this event.
·     The applicant's family, returned to the Muslim area of [Suburb 1]. The applicant's father bought a home at [address] [Suburb 1] and reinforced the security of this house.
·     A gang leader named [Mr A], noticing the security improvements and good location, wanted the house. The applicant's father initially refused to give [Mr A] the house, but the gang took him away and threatened to harm to the family, and the applicant's father agreed to give [Mr A] the house for a 'small sum'. Her family returned to their previous home [at address 1] [Suburb 1].
·     As a result of ongoing battles between [Mr A] and a rival gang leader named [Mr B], the police and army began interrogating Muslims in the area. The applicant's father and brother were taken for questioning.
·     In 2007, [Mr B] and his gang were arrested and the situation 'quietened down', however, they were released from prison in 2009 and became involved with elections, forcing people to vote.
·     In May 2009, violence between [Mr A] and [Mr B]'s gangs escalated and members from both gangs were killed. The applicant witnessed some of these incidents whilst 'peeping through the door' of her house and advised that the army came to their house looking for [Mr A].
·     The police and army were interested in the applicant's family due to the sale of their home to [Mr A]. Members of [Mr B]’s gang also believed that her father was part of [Mr A]'s gang. He was interrogated by both the army and rival gang. In July 2009, [Mr A] was killed.
·     In August 2009 during Ramadan, the applicant's father was staying at [Relative A’s] house when the army conducted a raid in the area, killing gang leader [Mr B] who was hiding on the roof of [Relative A’s] house. [Relative A] was unaware that [Mr B] had been hiding on the roof of his house.
·     The applicant's father returned home the following day and explained that they had been questioned about why [Mr B] was on the roof of their house and were advised they would be required for further questioning. The applicant's family were warned not to move by the army, whilst [Mr A] gang threatened revenge for the loss of their leader. The army believe that her father is involved with the gangs whilst the gangs believe that he is an informer for the army.
·     In January 2012, another of [Mr B]'s gang leaders was killed by the army. The applicant's father was taken away by the gang to determine if he had provided information to the army. The applicant's father was tortured and a threat was made by the gang to eliminate her family if it was discovered that her father had been involved with the army.
·     The applicant's family have been unable to seek protection from authorities and her father has avoided coming to their house in order to protect them. The applicant's brother has been questioned by both the gangs and the army and has resigned from his job and is working from home.
·     In July 2013, the current leader of the [Mr B] gang, [Mr C], was killed by the army. After this incident the applicant's father went missing. The applicant and her family are unaware of who is responsible for taking her father but they suspect the army.
·     The gang have continued to harass the applicant's family and have threatened to kill her [siblings] if her father does not return. The applicant's family have avoided contacting her, fearing she will be harmed by the army.
·     The applicant became aware that she wanted for questioning by the army on [date] October 2013, during a phone conversation with her mother. The applicant had not spoken to her mother since December 2011.
·     The applicant's mother advised her that in 2011, her father had been taken away by the army and interrogated and beaten for two days, the applicant's mother withheld this information from her fearing she would respond negatively to this advice as she was a nervous and scared person.
·     The applicant's mother further told her that a friend of her father had advised the army that she had helped with the gang's money dealings and business record keeping and that during her father's interrogation he was questioned about her whereabouts. He advised the army that she was only involved in his personal accounts. The army did not believe this and accused her father of hiding the applicant in Australia.
·     The applicant's family stopped all communication with her fearing she would be harmed by the army or the criminal gangs.[2]
[2] DIBP CLF[file number], ff. 39 – 43.
Accompanying her application, the applicant provided internet news articles concerning religious tensions in Sri Lanka, police actions to curb gang violence in [Suburb 1], gang activity and the death of gang leaders, [Mr A] and [Mr B].[3]
[3] DIBP CLF[file number], ff. 151 – 161.
In an additional submission to the Department, the applicant re-iterated that she fears harm on return to Sri Lanka because she is wanted by the army for questioning in relation to her father’s business accounts, suspecting that he and his friends were involved in criminal gangs.
The applicant re-iterated her claims in her submission to the Tribunal dated 5 March 2017 and at hearing.^[4] These claims are summarised as follows:
·     Discrimination and harm due to the applicant’s Muslim religion: As a Muslim in Sri Lanka, and as a witness to protests against Muslims in Colombo in 2002, the applicant experienced fear and anxiety, that have had lasting implications for her physical and mental health. The applicant later experienced discrimination in employment as a Muslim. There is increasing violence against Muslims in Sri Lanka. The applicant claims she faces a real chance of serious harm or a real risk of significant harm arising from her religion as a Muslim in Sri Lanka.
·     Harm from the Sri Lanka authorities on the basis of suspected criminal connections: The applicant who was trained as [professional] undertook [specified duties] for her father’s businesses and in this role managed his [affairs] as he directed. Through this activity she became aware of some irregularities in the [files] that may have indicated her father was the subject of extortion by Muslim criminal gangs. The applicant just did the [work] for her father and she did not do anything illegal. The applicant also undertook the [same work] for her a friend of her father. The applicant’s father and his friend were suspected by the army as being involved with the Muslim criminal gangs questioned many times. The applicant’s father has been missing since 2013 and she believes the army are responsible for this because this occurred after the army took him from his shop. The applicant claims that the army suspect her with links to the criminal Muslim gangs because of her [work] for her father and his friend. The applicant claims that her husband’s brother has said the army was and is still looking for her to question her in connection with this gang’s activity. The applicant claims she faces a real chance of serious harm or a real risk of significant harm from the army who will treat her in the same way as they did her father.
·     Harm as reprisal from criminal gangs: The applicant also claims she fears reprisals from the criminal gangs who believe the applicant’s father informed against them for the army.
[4] AAT 1510182, ff. 77 – 83.
On 5 March 2017, the applicant provided a submission to the Tribunal in support of her review applications. In this submission, the applicant provided country information from the US Department of State: Country Report on Human Rights Practices 2014 – Sri Lanka, including assessments of arbitrary or unlawful deprivation of life, disappearances and arbitrary arrest or detention.[5]
[5] AAT, 1510182, ff. 81 - 82.

The applicant’s husband makes no claims to have a real chance of serious harm or a real risk of significant harm on return to Sri Lanka.
Country of reference
The applicants claim to be citizens of Sri Lanka and provided copies of their Sri Lankan passports and birth certificates to the Department and brought their passports to the Tribunal hearing.[6] On the basis of this evidence, the Tribunal finds that the applicants are citizens of Sri Lanka, that Sri Lanka is the applicants’ country of nationality for the purposes of the Refugees Convention, and that Sri Lanka is the receiving country for the purposes of complementary protection.
[6] DIBP, CLF[file number], ff. 80 – 144 and ff. 147 – 150.
Third country protection
There is no evidence before the Tribunal to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Findings and Reasons
The issue in this case is whether the applicant faces a real chance of serious harm for a Convention reason of race, religion, nationality, membership of a particular social group or political opinion, or a real risk of significant harm on return to Sri Lanka. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In assessing the applicant’s claims, the Tribunal considered the applicant’s written statement that she suffered from memory loss as a result of trauma.^[7] The Tribunal had regard to the AAT’s ‘Guidelines on Vulnerable Persons’. At commencement of the hearing, the Tribunal encouraged the applicant to make the Tribunal aware if she had concerns that she was unable to present her evidence or needed a break for any reason. The Tribunal remained alert for any evidence that the applicant was unable to present evidence and argument. As discussed below, the Tribunal considered the applicant’s evidence was spontaneous and sincere in respect of her experiences of being caught up in communal protests in 2002. The Tribunal has accepted below that the applicant suffered some psychological trauma in this event which has had an impact on her ability to move [certain body parts] on a few occasions when she has been upset or stressed.
[7] DIBP CLF[file number] f. 42.
The applicant, who was generally very detailed in her responses, indicated that she was able to recall past events clearly throughout the hearing. The Tribunal was satisfied the applicant did not suffer from memory loss at any point at hearing. The Tribunal was also satisfied the applicant was able to provide evidence and respond to questions in an appropriate manner. The Tribunal found the applicant was able to understand and effectively present her claims and argument.
The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[8] However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is “well founded”, or that it is for the reason claimed. Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[8] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, the Full Federal Court, Foster J at [482].
Although the concept of onus of proof is not appropriate in administrative enquiries and decision-making, the relevant facts of an individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant.[9] For the reasons set out below, the Tribunal has formed the view that some parts of the applicant’s evidence should not be accepted.
[9] MIEA v Guo & Anor (1997) 191 CLR 559 at [596]; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at [169]-[70].
The applicant’s background
On the basis of the consistent and detailed evidence of the applicant, the Tribunal accepts the applicant was born [date], is Muslim (Moor) and grew up in [Suburb 1], Colombo, Sri Lanka. On the same basis, The Tribunal accepts the applicant’s mother continues to live in [Suburb 1] in the family home and her [siblings] both live at home. The Tribunal accepts the applicant married in Sri Lanka 2009 and came to Australia as a dependent on her husband’s student visa on [date] August 2010.
Discrimination and harm due to the applicant’s Muslim religion
As above, the Tribunal accepts the applicant is Muslim and on the consistent and detailed evidence of the applicant at hearing, the Tribunal accepts the applicant and her family lived initially in a house inherited from her mother in [Suburb 1], a predominantly Muslim area of Colombo.
The applicant provided the Tribunal with detailed information about communal tensions between Muslims and Buddhists, and of the development of Muslim gangs in Colombo. The Tribunal formed the view that the applicant’s evidence in this respect was drawn from her experience and was satisfied the applicant was a credible witness in this respect. The applicant explained that a Muslim group in [Suburb 1] led by [Mr A] was initially formed to support Muslims and to counter violence and discrimination against Muslims. She stated that initially people went to this group to discuss their problems but that over time, the nature of this group changed, rival groups developed, and the groups commenced using intimidating tactics to insist that business people such as her father paid protection money.
The applicant told the Tribunal that in [year] her family moved to another house near her father’s mother place to enable the applicant to further her education beyond [primary school] and, because, noting the rise in Muslim gang activity, they believed it was safer. However according to the applicant, after about one year in this house, the local Muslim group which had collected funds from all the Muslims in the area including her father (who donated a lot of money), made plans to build a madrasa, a Muslim school. When building was about to commence many Buddhist people including Buddhist monks lay down on the road in protest. The matter was taken to court and very soon after the court gave permission to commence building in August 2002, Buddhist protesters started destroying the homes of Muslims in this area.
The applicant told the Tribunal that at that time she had finished her A level’s and was at home with her mother. She and her mother had no idea what was happening until her father rang to tell them protesters were burning and damaging houses in the area. The applicant described people starting to smash her house until Singhalese neighbours told the protesters not to harm the applicant and her mother and they ran away. The applicant stated that they felt unprotected because the army surrounded the area but nevertheless allowed Singhalese people to enter. The applicant stated that after this incident, the family went to [Relative B’s] house for safety and later returned to the [Suburb 1] house.
The applicant gave evidence that during this incident she became very frightened and although she does not know why, she found she could not use [certain body parts]. She fell and needed help from her mother. The applicant described experiencing paralysis in [certain parts of her body] two or three times subsequently when she has been anxious or stressed, including on an occasion in 2009 discussed below when the applicant spent three or four days in hospital suffering from this problem. The applicant told the Tribunal that in 2009, she was examined by a [medical professional] but despite extensive investigations the cause of this condition was not identified. The applicant stated she has not experienced this problem since being in Australia or sought treatment and that on other the occasions her husband has helped her.
On the basis of the detailed oral evidence of the applicant at hearing, consistent with her written statements, the Tribunal accepts the applicant witnessed communal violence in 2002 when Buddhist protests against Muslim activities in her area erupted in violence. The Tribunal acknowledges that this experience was frightening for the applicant and that she has experienced physical/psychological difficulties subsequently.
At hearing, the applicant stated that issues arising from her religion are not a problem for her in Sri Lanka, and that her claims for protection relate only to her involvement in managing her father’s [business affairs], the army and gangs as discussed below. However, the Tribunal has considered whether the applicant has a real chance of serious harm or a real risk of significant harm on return to Sri Lanka arising from her Muslim religion given that she provided an internet news article from [a website] from [date] June 2013 suggesting that anti-Muslim sentiment was leading to a rise in Muslim-Buddhist tensions and communal violence against Muslims.[10] The applicant also raised issues of discrimination against Muslim people in Sri Lanka, stating they were treated poorly.
[10] DIBP CLF[file number] ff. 152 - 153
In consideration of this claim, the Tribunal has had regard to the following advice, put to the applicant, from DFAT’s Country Information Report, Sri Lanka, from January 2017:
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, along with communal issues surrounding language and religion, are a source of division in Sri Lanka. These three issues (ethnicity, language and religion) are defining features of day-to-day life in Sri Lanka and are fundamental to the reconciliation process.
…
3.4 DFAT assesses that Sri Lankans of all backgrounds generally have a low risk of experiencing official discrimination as there are currently no official laws or policies that discriminate on the basis of ethnicity, including in relation to access to education, employment or access to housing. However, DFAT further assesses that societal discrimination on the basis of ethnicity can occur (see sections on individual ethnic groups below). [page 11]
RELIGION
3.10 Religion plays a significant role in daily life in Sri Lanka and is directly linked to ethnicity: Sinhalese are mostly Buddhist and Tamils are mostly Hindu, and Christians are a minority of each. Muslims are seen as an ethnicity. The Sirisena Government has publicly said that it is committed to religious (as well as ethnic) reconciliation.
3.11 Article 10 of the Sri Lankan Constitution provides for freedom of religion and Article 14 provides for freedom of public and private worship. However, Article 9 of the Constitution grants Buddhism a ‘foremost place’: the possible amendment of this article has been a topic of consideration in the ongoing constitutional reform process. Sri Lanka’s Supreme Court has twice reached judgements that upheld a secular interpretation of the Constitution. Acts intending to insult religion are punishable by a fine and/or a maximum of one year imprisonment. Attacking places of worship or religious objects is punishable with a fine and/or a maximum of two years’ imprisonment.[page 12]
…
Muslims
3.16 Muslims are the third largest religious group (and are also regarded as an ethnic group) 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. The majority (98 per cent) of Muslims in Sri Lanka are Sunni. There are a small number of Shias, including members of the Bohra community (a Muslim community originating from India, including Tamil Nadu), 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 (Muslims of Indian or Pakistani descent that speak Urdu) based mostly in Colombo. 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.
3.17 The Sri Lanka Muslim Congress (SLMC), the largest Muslim political party, has seven members of parliament and is part of the governing coalition. The SLMC’s leader is a Cabinet Minister. The All Ceylon Muslim Congress is another Muslim party with elected members of parliament and its leader holds a ministerial position. There are also Muslim Members of Parliament in the two major parties, the SLFP and the UNP, including in ministerial positions. Although many Muslims are employed in agriculture and fisheries, many are also employed in business, industry and the civil service. DFAT is not aware of any evidence to indicate that Muslims are economically disadvantaged in Sri Lanka. 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, and in March 2013 Halal certification ceased, other than for products produced for export to Islamic countries.
3.18 Although most Muslims sided with the Government (Sinhalese) forces during the civil conflict, there has been a recent rise in religious tensions between Muslims and the Sinhala Buddhist majority. Nationalist Buddhist groups such as Sinhala Ravaya (English: Sinhalese Roar) and Bodu Bala Sena continue to stoke religious and ethnic tensions and are known to post religiously-motivated attacks on social media. During the Rajapaksa Government, these groups enjoyed a level of state protection of their activities, support which ended when Sirisena came to power in 2015. According to the US Department of State, these groups can sometimes have support from local police or local government officials, whereby they fail to respond to complaints of Buddhist monks harassing or damaging property. However, there has not been a large-scale incident since June 2014 when Galagoda Aththe Gnanasara, General Secretary of Bodu Bala Sena, 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. Gnanasara continues to assert anti-Muslim sentiment publicly and is under ongoing judicial investigations.
3.19 There have been a number of incidents of verbal and physical attacks on Muslims and Muslim businesses or religious sites. According to the Secretariat for Muslims there were 82 incidents of hate speech, verbal insults or physical force, or attempts to desecrate Muslim religious property in 2015, however this was a reduction of over 60 per cent compared to 2014.
2.20 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.
3.21 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. The reduction in religious tensions and violence described above means that DFAT assesses there is a low risk of societal discrimination against Muslim Sri Lankans.[page 14][11]
[11] DFAT Country Information Report, Sri Lanka, 24 January 2017
In response to the information cited above, the applicant put the view that news services do not show what is really happening in Sri Lanka. As discussed with the applicant, DFAT base their report on a wide range of independent, relevant and credible sources and, on this basis, the Tribunal accepts DFAT advice as authoritative on the situation in Sri Lanka.
The applicant stated that she experienced discrimination as a Muslim when she finished her qualification because she could not obtain employment at non-Muslim companies although her grades were very good. The applicant testified that she obtained employment in her field [in] a Muslim company instead. In considering whether the applicant was subject to discrimination amounting to serious or significant harm on the basis of employment in the past, the Tribunal has had regard to the non-exhaustive examples of serious harm in s.91R(2) of the Act, and the definition of significant harm in 36(2A) of the Act. In the applicant’s case, the Tribunal notes she was able to obtain a recognised qualification [and] was then able to obtain paid employment in her field. The Tribunal is satisfied that the applicant did not experience significant economic hardship that threatened her capacity to subsist or would otherwise amount to serious harm for the purposes of s.91R(1)(b) . The Tribunal further considers the applicant, as a Muslim, did not experience discrimination amounting to significant harm as defined in s.36(2A). She was able to obtain a recognised qualification [and] was then able to obtain paid employment in her field.
The Tribunal has had regard to the country information cited above that Sri Lankans of all backgrounds generally have a low risk of experiencing official discrimination as there are currently no official laws or policies that discriminate on the basis of ethnicity, including in relation to access to education, employment or access to housing. The Tribunal has also taken account of the DFAT assessment cited above that there is a low risk of societal discrimination against Muslim Sri Lankans. The Tribunal also takes into account the applicant’s evidence that her mother and siblings continue to live, work and practice their religion in [Suburb 1]. Taking into account the applicant’s individual circumstances and the country information before it, the Tribunal is satisfied that the chance or risk that the applicant will be subject to discrimination amounting to serious or significant harm on return to Sri Lanka is remote. The Tribunal does not accept the applicant has a real chance of serious harm or a real risk of significant harm on this basis.
The Tribunal has considered whether the applicant, as a Muslim Moor in Sri Lanka, has a real chance of serious harm or a real risk of significant harm from communal violence arising from religious tensions. The Tribunal has had regard to the news report provided by the applicant from 2013 concerning rising Muslim-Buddhist tensions in Sri Lanka.[12] The Tribunal has also taken into account the applicant’s view at hearing that the present Prime Minister, Mr Wickremesinghe, was the Prime Minister at the time of the communal violence in 2002, and that he wrongly blamed Muslims rather than Buddhists for the violence, and is therefore not to be trusted. The applicant also stated that the religious rights of Muslims are being curtailed, claiming that while limitations were being placed on use of public loudspeakers at mosques calling Muslims to prayer, Buddhist people can say their prayers loudly.
[12] DIBP CLF[file number], ff. 151 – 153.
The Tribunal has considered the applicant’s claims in respect of communal violence arising from religious tensions and notes the DFAT assessment above, discussed with the applicant, that during the Rajapaksa Government there was a rise in religious tensions between Muslims and the Sinhala Buddhist majority. However, as discussed with the applicant at hearing, taking into account DFAT’s assessment that support for nationalist/Buddhist groups ended when Sirisena came to power in 2015 and that there has been a reduction in religious tensions and violence such that DFAT assess there is a low risk of political or religious violence for Muslims in Sri Lanka, the Tribunal does not accept the applicant’s arguments are persuasive. Taking into account the DFAT advice discussed with the applicant, the Tribunal does not accept that Mr Wickremesinghe’s role as Prime Minister enhances the risk of Muslim-Buddhist tensions, or that the religious rights of Muslims are being curtailed in Sri Lanka. Having regard to the applicant’s individual circumstances and the independent country information before it, the Tribunal does not accept the applicant faces a real chance of serious harm now or in the foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason. Based on the considerations of the evidence before it, the Tribunal finds that the applicant does not face a real risk of significant harm for these reasons.

The Tribunal has considered whether there is a real chance or a real risk the applicant will be subject to similar conditions as those when she witnessed violence associated with religious tensions such that she will she suffer similar physical/psychological difficulties that will lead to serious of significant harm. Taking into account the DFAT assessment that there is a low risk of political or religious violence for Muslims in Sri Lanka, the Tribunal considers there is a remote chance the applicant faces such circumstances on return to Sri Lanka. For this reason, the Tribunal finds that the applicant does not face have a well-founded fear of persecution on this basis. For the same reason, the Tribunal finds that the applicant does not face a real risk of significant harm for these reasons.
Impact of criminal gangs in [Suburb 1], Colombo
The applicant provided detailed and specific accounts of criminal gang activity in the [Suburb 1] area which indicated knowledge of the situation and, on some occasions, first-hand experience. On the basis of the applicant’s detailed evidence, supported by internet news articles provided to the Tribunal by the applicant, the Tribunal accepts that:
·     The applicant and her family returned to the [Suburb 1] area in 2002, after buying a house near her father’s shop. Rival Muslim gangs which had evolved from Muslim support groups operated in the [Suburb 1] area, one led by [Mr A], another by [Mr B]. These gangs were involved in extortion and protection rackets targeting business people and the wealthy.
·     In 2004, [Mr A] indicated to her father that he wanted possession of the new house because it was well-secured. The applicant’s father was intimidated by members of the [Mr A] gang and he was coerced into selling the property to [Mr A] for a small amount of money, and the family returned to their first home in [Suburb 1].
·     The impact of gang activity on the community including the applicant’s father reduced in 2007, when the authorities arrested gang leader, [Mr B]. However, [Mr B] was released in 2009 in anticipation of the election for which his support was wanted and criminal violence flared again between rival groups.
·     In 2009, the applicant witnessed some gang activity from her home when she heard the sound of shooting and saw [Mr A] running with a gun, pursued by men with weapons. In July 2009 [Mr A] was found dead near a lake.[13] There was no enquiry into the death of [Mr A] and it was not clear who was responsible.
·     The Tribunal accepts the applicant’s evidence that after this incident police and army came to their house to enquire about her father’s connection to the gangs, noting that her father had sold his house to [Mr A].
·     In August/September 2009 (Ramadan), the army took action to curb the gang violence. Army vehicles came to the area, in an operation of Sri Lankan Special Task Force commandos to find [Mr B] who they suspected was hiding there.^[14] In what the Muslim community perceived as heavy handed action, the army took and bound many men in the area and that a number were shot and killed. Army personnel ran on the rooftops and found and killed [Mr B] who was hiding on the rooftop of [Relative A’s] house.
·     The applicant was told that men in the house including [Relative A] and father were taken to rooftop and questioned because the army suspected [Relative A] provided a room for [Mr B] there. Her father returned next day after he and [Relative A] had been questioned about involvement with [Mr B] by the army. They said they had no information about [Mr B] and they were released.
·     The applicant’s fiancé returned from Australia where he was studying, that they married and the applicant stayed at his family house in a rural suburb of Colombo until she came to Australia in August 2010.
·     Gang violence in 2012 and 2013 was countered by police operations against underworld figures in [Suburb 1] in 2012 and 2013.[15]
[13] DIBP CLF[file number], f. 154.
[14] DIBP CLF[file number], f. 156 and ff. 160 – 161.
[15] DIBP CLF[file number], ff. 158 – 159.
In summary, the Tribunal accepts a high level of rival Muslim gang activity has occurred in the past in the applicant’s area of [Suburb 1]. The Tribunal accepts that as a part of the Muslim community, the applicant was affected by and witnessed some of this activity. The Tribunal acknowledges that this was a distressing period for the applicant that she suffered again from paralysis of [certain body parts] and went to hospital for three or four days.
The Tribunal further accepts that the applicant’s father, a businessman in the community may have been the target of extortion by gangs. As discussed below, the Tribunal accepts that as part of their enquiries into the activities of [Mr A] and [Mr B], the applicant’s father and brother, along with others in the Muslim community may have been interviewed by the army/police on a number of occasions, including in 2009, 2012 and 2013 in relation to enquiries about ongoing gang activity.
In considering whether the applicant has a real chance of serious harm or a real risk of significant harm on return to Sri Lanka as a resident in the [Suburb 1] area of Colombo, the Tribunal takes into account the current security situation in Sri Lanka put to the applicant at hearing. As put to the applicant, DFAT advice from January 2017 indicates that the security situation in Sri Lanka has greatly improved:
SECURITY SITUATION
2.37 Since the conflict ended in May 2009, the security situation in Sri Lanka has greatly improved. The Sri Lankan Government–through its military, intelligence and police–exercises effective control over the entire country.
2.38 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 has fallen sharply in recent years and is now comparable with other South Asian countries–UNODC estimated a murder rate of 2.9 per 100,000 in 2013. 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 understands they have not been met with an effective response.[16]
[16] DFAT Country Information Report, Sri Lanka, January 2017, p. 10.
Also put to the applicant at hearing was the following DFAT advice from January 2017 in respect of access to state protection in Sri Lanka:
5.1 DFAT assesses there is no law or Government policy in Sri Lanka which hinders access to state protection on the basis of religion or ethnicity. All citizens have access to avenues of redress through the police, judiciary and the Human Rights Commission of Sri Lanka. In practice, these avenues may be limited by linguistic barriers or by a lack of resources. In addition, some Tamils in the north and east may not have full confidence in police and security officers and may therefore be less likely to use these avenues to seek redress.
Military
5.2 The Government has publicly claimed that military involvement in civilian activities has ceased. However, DFAT observed that the military continues to occupy a large amount of prime agricultural land and maintains a strong military presence in the north, although military personnel are less visible than in the past.
…
Police
5.5 The Sri Lankan Police (SLP) has a notional strength of around 85,000 members. It has responsibility for enforcing criminal and civil laws and maintaining general law and order and operates under the purview of the Ministry of Law and Order. The SLP maintains an additional 8,600 member paramilitary Special Task Force (STF). The Sirisena Government has identified promoting the independence of the police as part of its agenda for constitutional reform. Overall, the SLP is a trained and active police force. However, the majority of SLP members were recruited and gained their experience during wartime and significant institutional changes are required during its transition to a community policing framework.
...
5.7 The SLP maintains a separate unit to deal with the disciplinary issues of its members. Police officers are generally not well paid, and there have been reports of petty corruption such as issuing traffic fines to supplement the income of individual officers. The Sri Lankan Government has indicated that they will raise the basic police salary up to forty per cent, but at the time of publication this raise had not been implemented. The SLP also offers a ‘Tell the IGP’ (Inspector-General of Police) service where any member of the public can call a free number or dedicated website to discuss their engagement with the SLP and register concerns or complaints. The public can also lodge complaints with the National Police Commission, which investigates both complaints against individual police officers and the police force more generally. There are no official statistics on the uptake of this service. [17]
[17] DFAT Country Information Report, Sri Lanka, 24 January 2017, pp. 31 – 32.
In response to the information cited above concerning the situation in Sri Lanka, the applicant stated that her husband listens to the news but she does not because she does not believe anything that comes out of Sri Lanka, however she acknowledged that the situation in Sri Lanka has changed over recent years. The Tribunal has taken account of the applicant’s comments, but considers the most recent independent country information of DFAT to be authoritative. On this basis, the Tribunal finds that the security situation in Sri Lanka has improved significantly over recent years and that the Sri Lankan Government through the military, intelligence and police exercises effective control over the entire country.
Looking to the future, on the evidence before it, the Tribunal does not accept that the applicant faces serious or significant harm as a person living in the [Suburb 1] area of Colombo. In reaching this finding, the Tribunal has considered whether there is a real chance or a real risk the applicant will be subject to similar conditions as those leading to army action against criminal gangs which she witnessed such that she will she suffer similar physical/psychological difficulties that will lead to serious of significant harm. Taking into account the DFAT advice, discussed with the applicant, that the security situation has improved significantly in Sri Lanka and that the authorities have effective control in Sri Lanka, the Tribunal considers there is a remote chance the applicant faces such circumstances on return to Sri Lanka. For this reason, the Tribunal finds that the applicant does not face have a well-founded fear of persecution on this basis. For the same reason, the Tribunal finds that the applicant does not face a real risk of significant harm for these reasons.
The Tribunal has accepted above that the applicant’s father may have been subject to extortion from gangs in the past, and has considered whether the applicant as the daughter of a wealthy businessman whose name is on businesses will be subject to extortion from gangs on return to Sri Lanka. Taking into account the DFAT advice, discussed with the applicant, that the security situation has improved significantly in Sri Lanka and that the authorities have effective control in Sri Lanka, the Tribunal considers there is a remote chance the applicant faces such circumstances on return to Sri Lanka. For this reason, the Tribunal finds that the applicant does not face have a well-founded fear of persecution on this basis. For the same reason, the Tribunal finds that the applicant does not face a real risk of significant harm for these reasons.
The Tribunal also notes its findings above, that the applicant’s father, [Relative A] and brother may have been interviewed by the authorities in the past as residents in [Suburb 1] who may be affected by gang activity, and has considered whether the applicant may be interviewed on return to Sri Lanka for the same reason. However, the Tribunal considers the DFAT advice, as discussed with the applicant, indicates that the security situation has improved significantly in Sri Lanka and that the authorities have effective control in Sri Lanka, and on this basis the Tribunal considers there is a remote chance the applicant, as a resident of [Suburb 1], will face interview about gang activity. For this reason, the Tribunal finds that the applicant does not face have a well-founded fear of persecution on this basis. For the same reason, the Tribunal finds that the applicant does not face a real risk of significant harm for these reasons.
The Tribunal does not accept the applicant has a real chance of serious harm or a real risk of significant harm as a resident in [Suburb 1] on return to Sri Lanka now or in the foreseeable future.
Sri Lankan authorities’ interest in the applicant
In considering the applicant’s claim to fear harm from the Sri Lankan authorities who suspect her with connections to Muslim criminal gangs, the Tribunal has considered the applicant’s employment profile. The Tribunal considered the applicant’s evidence about her role [for] her father and his friend to detailed, consistent and credible. On this basis, the Tribunal accepts that:
·     After completing her [qualifications] in [date], the applicant worked for four years as an [occupation], fulfilling qualification requirements as [a professional], and then worked for a year [in another role] before coming to Australia in August 2010.
·     The applicant’s father opened the first [shop] in [date]. This shop was named “[Shop A]” after the applicant as it was commenced in the year of her birth. When the applicant’s father opened two subsidiary shops later, these shops also bore the applicant’s name in the title. In 1998 when the applicant was studying [at] school she assisted her father to register the businesses, with her father as the proprietor, and she noted that her name continued to be included in the registered business names. These shops manufactured goods [and] the applicant’s father obtained good revenue from the shops that allowed the applicant to be well educated.
·     Over the years, the applicant continued to assist her father with his business [affairs]. This was the extent of the applicant’s role and other than being aware that her father was wealthy, the applicant did not know the details of his business or his investments. The last assistance that the applicant gave her father was in lodging his quarterly tax in June 2010.
·     The applicant used to help other people in the area to complete forms because she was educated. In this capacity, the applicant assisted a friend of her father’s to register his business importing [goods], lodge VAT and manage cheques.
In summary, the Tribunal accepts the applicant assisted her father and other members of the community with their business [work], but that she had no other role in her father’s or anyone else’s affairs. The Tribunal accepts that the last time the applicant assisted her father in his [work] was in June 2010.
In considering whether the applicant faces a real chance of serious harm or a real risk of significant harm from the Sri Lankan authorities on return to Sri Lanka, the Tribunal has considered her claim that the army suspected that her father supported gang activity and they suspect the applicant with the same profile because she helped her father with his [work] and because her father’s friend told the army in questioning that she had helped with the gang's money dealings and business record keeping. In considering these issues, the Tribunal has assessed the credibility of the applicant’s claims.
Communication with the applicant’s family
The applicant indicated she has no first hand evidence on which to base her claims, and she bases this claim on her frequently made statement at hearing that her mother cut off all communication with her in 2011 to protect her, and that if it was safe for her to return to Sri Lanka her mother would contact her and permit the applicant to contact her mother. The applicant stated that after her departure from Sri Lanka in 2010, she communicated regularly with her mother who told her that her father was frequently questioned by the army about gang links and that he did not come home very regularly so he would not expose the family to danger. The applicant claimed that in 2011, her mother told the applicant not to contact her any more in any way or through anyone, “because of her safety”, but she did not tell the applicant any reasons why.
The applicant stated that she had no contact with her family between 2011 and 2012, when her brother called her to advise that her mother was to have an operation. She claimed he told her that her father was having problems with the army and the gang and he did not return home regularly, and that she should not call. The applicant stated that she then did not have contact with her family until July 2013 when her brother called saying that her father had disappeared, and again said she should not communicate with them. The applicant stated that she contacted her mother through a friend of her husband who lives near her mother in October 2013 before lodging her protection visa application and that it was at this time that her mother told her that the army was interested in her.
In her written statement the applicant claimed her mother withheld information about the army’s conduct in respect of her father and the army’s interest in questioning the applicant as a person who may have been involved in a gang through her [work] until this conversation because the applicant is a nervous person. Her mother told her that in 2011 the army asked her father to have the applicant return to Sri Lanka. The applicant claimed that in October 2013 her mother also informed her that in 2011, her father’s friend told the army the applicant had been helping gangs with their [business work]. She stated that she has not personally been in touch with any member of her family or anyone else to enquire about the family’s current circumstances since 2013 but that in January 2015, as discussed below, her husband’s brother visited her mother.
The Tribunal sought to understand the reasons her mother cut off communication in 2011, noting that the applicant indicated at hearing that she had strong family ties. She stated that at that time she did not know why her mother demanded she stop all communication, but she did as her mother said. When the Tribunal suggested that it was difficult to believe that she would stop all communication with her mother for more than two years without establishing the reason why, the applicant stated that her mother had been using the applicant’s phone and sim card, but her mother threw away the sim card. The Tribunal then suggested that forms of communication other than her mobile phone may have been available and the applicant said that they used [video chat]. The Tribunal enquired about the basis for her mother’s belief that contact with the applicant would place her in danger, but the applicant had no explanation. The Tribunal considered the applicant’s responses as to why she ceased all contact with her mother in 2011 to be vague, confused and contradictory, in marked contrast to her generally detailed and clear testimony. Given that the applicant presents this claim as key evidence that she is suspected of criminal conduct, this raises serious doubts for the Tribunal about the applicant’s credibility.
The Tribunal suggested to the applicant that given there are many secure ways to contact a person in the digital communication age, it was difficult to understand why the applicant’s family would refuse contact with her on the basis that it was not safe to do so, and the applicant repeated that her family refuse contact. The Tribunal suggested she could take the initiative to communicate with them so she could update herself before the Tribunal hearing given that 2013 was her last claimed direct contact with her brother. The applicant stated that their [video chat] is always off and she doesn’t have a telephone. She stated that when her husband’s brother went to Sri Lanka he asked her family to call her but they refused. She also stated that she tried to speak with her brother before the hearing but he refused to speak with them. The Tribunal would expect that for something as important as her protection visa hearing, the applicant would seek to update herself about current circumstances in some communication with her family given the long period since her last contact. The Tribunal considers it is very difficult to believe that the applicant’s mother has refused to communicate with her directly since 2013 and the Tribunal does not consider that the vague reasons provided by the applicant are convincing in the circumstances. The Tribunal considered these reasons were not sufficient to explain the claimed absence of communication with her family given her positive relationship with them. The Tribunal is not satisfied that the applicant was telling the truth.

The applicant indicated a positive relationship with her father but stated that she has not made any enquiry about the circumstances of his disappearance with her family or with anyone else. She stated that she cannot enquire because she cannot communicate with her family. The applicant was very vague in discussing this matter which the Tribunal considers important given that her claims to protection rely largely on the unverified claim that her father has disappeared probably as a result of army action. This led the Tribunal to have further serious doubts about the credibility of the applicant.
Further, the Tribunal finds it very difficult to believe that, given the applicants’ circumstances in Australia as temporary residents that her mother would withhold from the applicant important information about the applicant’s circumstances in Sri Lanka from 2011 until October 2013 that would have enabled the applicant to explore her visa options at the earliest possible time. This information included that her father was questioned by the army in 2011 about the applicant’s whereabouts because they believed she was involved in [work] for the gangs; that the army did not believe she was not involved and was looking for her; and that her father’s friend had advised the army that the applicant had helped with the gang's money dealings and business record keeping. This raised serious doubts for the Tribunal about the credibility of the applicant, and the Tribunal does not accept the applicant is a witness of truth in this matter.
Taking all these considerations into account, the Tribunal is not satisfied that that the applicant is a credible witness. The Tribunal does not accept that the applicant’s claim that her family refuse to communicate with her is evidence that the army suspects her of links to a criminal gang.
The applicant’s father’s circumstances
Central to the applicant’s claim to have a real chance of serious harm or a real risk of significant harm on return to Sri Lanka is that her father disappeared after the army took him from his shop, and that although she is unsure she thinks it is probably the army who is responsible. The applicant claims she faces the same fate as her father. At hearing, the applicant stated that after no contact with her since 2011, her brother contacted her in July 2013, and informed that her father had been taken from his shop by the army and had not returned. She claims her brother told her not to return to Sri Lanka because she would die and her repeated that the applicant must not contact them.
The Tribunal has accepted above that the applicant’s father, a businessman in the community may have been the target of extortion by gangs. The Tribunal has accepted above as plausible the applicant’s evidence that as part of their enquiries into the activities of [Mr A] and [Mr B], the applicant’s father and brother and [Relative A], along with others in the Muslim community may have been interviewed by the army/police on a number of occasions in relation to enquiries about ongoing gang activity in [Suburb 1].
The Tribunal asked whether the applicant’s family had made any enquiries about the whereabouts of her father, or what happened to him or who was responsible. The applicant told the Tribunal that she does not know, because they do not tell her these things because she can’t contact them.
The Tribunal enquired whether the applicant was aware of any enquiries about her father made with the Office of Missing Persons. The applicant stated again that she did not know because she had had no contact with her family. The Tribunal put to the applicant DFAT advice from their report of January 2017 that in August 2016, the Office on Missing Persons was established to address the issue of missing persons in Sri Lanka.[18] As put to the applicant, this office has the power to investigate and trace missing persons.[19] As discussed with the applicant the United States Department of State provide a number of cases where missing persons have been successfully investigated.[20] Taking the country information into account, the Tribunal finds it difficult to believe that in the event that the applicant’s father has been missing since July 2013 and the applicant’s family believe the army is responsible for whatever has happened to him, they have taken no action to establish anything relevant to what happened to him. The Tribunal further finds it difficult to believe that the applicant’s family would not communicate with the applicant about something as significant to her circumstances as what action they have taken to determine the whereabouts of her father and the results of their enquiry. The Tribunal does not accept that the applicant’s evidence is credible.
[18] DFAT Country Information Report, Sri Lanka, 24 January 2017, p. 9.
[19] DFAT Country Information Report, Sri Lanka, 24 January 2017, p. 9.
[20] United States Department of State Report on Human Rights Practices 2015 – Sri Lanka.
The Tribunal notes the suggestion in the applicant’s written claim that the applicant’s mother thought the applicant could not handle distressing information. As above, the Tribunal acknowledges that the applicant has witnessed confronting events but the Tribunal considered the applicant presented as an intelligent, resilient person who was able to cope with stressful situations such as settling in Australia without her family support. Given the significance of the information to the applicant, the Tribunal does not consider this explanation is credible. The Tribunal does not accept that the applicant’s family have not communicated with the applicant about her father’s circumstances for this reason. For these reasons, the Tribunal is not satisfied that the applicant is a credible witness.
The applicant has claimed that her father and at times her brother have been questioned about Muslim gang activity many times by the army over many years, commencing before 2007, and including questioning in 2009, and in 2011 when her father was also and beaten, and again in 2013. The Tribunal finds it difficult to believe that throughout this considerable period and many questionings, that in the event the army/police held the suspicions claimed by the applicant, they did not take the ample opportunity available to them to take criminal action against them. The Tribunal does not consider it is credible that through all this period, the army did not take action against the applicant’s father had they suspected him of dealing with criminal gangs.
The Tribunal also notes the applicant’s evidence that her father was questioned a number of times before 2007 and repeatedly in 2009 and that the applicant did not depart Sri Lanka until August 2010. The Tribunal considers that in the event the authorities had any interest in her father’s accounts, they had the opportunity to gain access to them and discuss these with her prior to her departure. The Tribunal considers that if the Sri Lankan authorities or anyone else had an interest in questioning the applicant they had the opportunity to do so. The applicant also claimed that her mother told [Relative C] that the army had taken her father’s business accounts. At hearing, the applicant claimed that [in her role] she became aware of some irregularities that may have indicated her father was the subject of extortion by Muslim criminal gangs, rather than collusion. The Tribunal considers the suggestion that the authorities may come to the conclusion the applicant’s father was colluding with a gang, contradictory to her claims. Overall, the Tribunal assessed the applicant’s evidence in respect to the authorities interest in the applicant’s father’s account’s lacked credibility for these reasons.
Taking all these matters into account the Tribunal does not accept the applicant is a credible witness in respect to the army’s interest in her father or his claimed disappearance and does not accept these claims.
The applicant’s profile as a person involved in gang activities
The Tribunal has considered the applicant’s claim that she is suspected of helping a gang with [business] matters because her name forms part of the registered name of her father’s businesses. Given the applicant’s comment at hearing that it is common in Sri Lanka to identify businesses with a person’s name, and given that the shops had carried her name since the inception of the first shop in [date] when she was a baby, the Tribunal considers the chance that the fact her father’s shops bore her name would lead the Sri Lankan authorities to link the applicant to her father’s activities as the business owner, legal or illegal, is far-fetched. The Tribunal does not accept the applicant is perceived as associated with her father’s business dealing’s because her name forms part of the registered of name of her father’s businesses.
Delay in lodging protection visa application
In considering the applicant’s general credibility, the Tribunal notes that it is legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347). The Tribunal has considered that she did not raise any claims to need protection from harm in Sri Lanka until [date] October 2013, three years after her arrival in Australia and two years after her mother allegedly cut off communication with the applicant for her safety. The Tribunal considers this is a significant delay, and the Tribunal is very concerned by it.
In her submission of October 2013, the applicant explains that she did not apply for Protection at an earlier time because she had not revealed the full extent of her family’s dangerous circumstances to her husband’s family in Australia until recently and they urged her to obtain legal advice. In considering this explanation the Tribunal notes that the applicant stayed with her husband’s family after her father was questioned in relation to his involvement with the gang matters in 2009 and her departure from Sri Lanka in 2010. The applicant gave evidence that she and her husband maintained close communication with her husband’s family in Sri Lanka and that it was via his family that the applicant obtained news from her mother. The Tribunal does not accept the applicant’s husband’s family only became aware of her circumstances in 2013. The Tribunal also notes the applicant is an educated person, a qualified accountant, with employment experience, and on this basis the Tribunal considers that she was able to make enquiries about her visa options at an early date if she had any concerns about her safety. In addition, the Tribunal does not consider it is credible that the applicant had not discussed her situation with her husband/ her husband’s family when in 2011 when her difficulties allegedly first became apparent, and that she would not have taken action at that time to seek protection. The Tribunal considers that if she had concerns about her need for protection, she would have put these forward at the earliest possible time. These considerations cause the Tribunal to have further serious doubts as to the credibility of the applicant’s claims to be in need of protection.
Letter of support from [Relative C], dated [February] 2015 [21]
[21] DIBP CLF[file number], ff. 188.
As discussed in the delegate’s decision record provided to the Tribunal by the applicant, the applicant provided a letter from [Relative C] to the Department after her Departmental interview. In this letter [Relative C] advises that he visited the applicant's family and spoke to her mother on [date] January 2015. He claims the applicant’s mother advised that the applicant’s father has not returned home and she has no information about him. [Relative C] reports that the applicant’s mother said that the army continue to watch and visit the family home and have told her mother not to relocate; they have taken documents belonging to the applicant and have asked about the applicant’s whereabouts. He stated that her mother said that gangs still operate in the area and the army is still looking for gang members.
In this letter, [Relative C] states that the army have taken the applicant’s brother and beaten him, and interrogated him about the applicant’s return and about the applicant’s father’s business and the applicant’s involvement in helping her father’s friends, but that they have no contact with the applicant’s father’s friend and do not know anything about him.
[Relative C] writes that her mother says that they do not keep contact with the applicant to keep her safe so the army cannot find her. He also writes that gang members also visit the home but that they only enquire about her father and his return.
The Tribunal notes [Relative C] provided this letter at the request of the applicant and that the contents closely reflect the applicant’s claims. The Tribunal has considered the weight to give the evidence of this letter in the context of the serious credibility concerns set out above. The Tribunal does not consider that this letter offers a credible explanation for the claim that the applicant’s family refused to communicate with the applicant, or provide any information that would provide support to claims about the disappearance to the applicant’s father. Taking these matters into account, the Tribunal does not accept that this letter provides evidence to outweigh the Tribunal’s concerns about the credibility of the applicant’s claims, and gives this letter no weight in this assessment.
Findings in respect to army interest in the applicant
Taking into account all the findings and reasons above, the Tribunal does not consider the applicant is a credible witness in respect of her father’s profile with the authorities as a member of a gang, and the army’s interest in her [work]activities. The Tribunal does not accept:
·     The army believe that her father or brother or she is involved with the gangs;
·     The army has beaten or tortured her father and brother in questioning about gang activity;
·     The applicant’s father was questioned about the applicant’s whereabouts. The army did not believe she was not involved in accounting for a gang and accused her father of hiding the applicant in Australia;
·     The applicant’s father has disappeared;
·     The applicant’s brother resigned from his work and is working from home because of questioning by both the army and gangs;
·     The army suspect the applicant of links to the criminal Muslim gangs because of her activity as [an employee] for her father and his friend.
·     A friend of the applicant’s father advised the army that she had helped with the gang's money dealings and business record keeping;
·     The army was and is still looking for her to question her in connection with her support of a gang.
Taking into account all the findings above, the Tribunal finds that the applicant does not face a real chance of serious harm now or in the foreseeable future from the authorities for any reason. The Tribunal finds the applicant does not have a well-founded fear of persecution on this basis. For the same reasons, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that she will suffer significant harm from Sri Lankan authorities.
As above, the Tribunal has not accepted the applicant’s claims to face harm from the authorities for any association with gangs. However, the Tribunal notes that in support of her claims, the applicant submitted country information to the Tribunal from the United States Department of State: Country Report on Human Rights Practices 2014 – Sri Lanka, and the Tribunal has had regard to this information. As discussed with the applicant at hearing, the Tribunal considers that this information is out-dated. Given the changes indicated by DFAT in the country situation since 2015, the Tribunal does not consider this information remains current as it does not take into account circumstances in Sri Lanka since the government of Sirisena commence in January 2015. As put to the applicant, the United States Department of State Country Report on Human Rights Practices 2015 indicates significant human rights improvements and that there were no substantiated reports of extrajudicial killings, although the use of force against civilians by government officials, while increasingly rare, remained a problem.[22] As discussed with the applicant, the United States Department of State Country Report on Human Rights Practices for 2015 stated that in while the law prohibits arbitrary arrest and detention, such incidents occurred, although at a decreased rate compared with 2014.[23] This report also indicated that in response to incidents, investigations had been carried out and action taken against perpetrators.[24] The Tribunal does not accept the country information submitted to the Tribunal by the applicant is an accurate reflection of the current situation in Sri Lanka.
[22] United States Department of State Report on Human Rights Practices 2015 – Sri Lanka.
[23] United States Department of State Report on Human Rights Practices 2015 – Sri Lanka.
[24] United States Department of State Report on Human Rights Practices 2015 – Sri Lanka.
Threat of harm to the applicant from a criminal gang
The Tribunal has considered the applicant’s claim to faces harm from criminal gangs on return to Sri Lanka in revenge for her father informing on them to the army. In her written statement and at hearing the applicant has made a range of claims concerning gang interest in the applicant’s father; that her father was forced to close one of his stores because he heard a gang was interested in it, that in 2004 he was taken by [Mr A] gang members who threatened his family to convince him to sell his house to [Mr A]; and that in 2009 and 2012 members of [Mr B]’s gang tortured and questioned him about his association with [Mr A] and also with his involvement with the army. She claims that the gang have continued to harass the applicant's family and have threatened to kill her [siblings] if her father does not return.
At hearing, the applicant did not raise fears from gang members, but the Tribunal enquired about this issue, noting that the applicant claimed to fear reprisals from criminal gangs in her written statement. In response, the applicant stated that in conversations with her mother in 2010, her mother told her that gangs had called her father, and that in her last communication with her family in 2013, they said the gangs had asked about her whereabouts. When asked at hearing for more detail about this claim, the applicant could provide nothing more and stated she “does not know about this.” The Tribunal considered the applicant’s response to enquiry about gang interest in her to be vague and limited. Given the significance of this matter to the applicant’s claims, the Tribunal would expect the applicant to have explored this matter with her family and any other sources in the community, and to be able to provide information about the gang, their contact with the family and the reasons for their interest in her in some detail. The vague and limited nature of the applicant’s response raises serious concerns about the credibility of the applicant’s claims and the Tribunal is not satisfied that the applicant is a credible witness in this respect.
On this basis, the Tribunal finds that the applicant is not a credible witness in respect to her father’s relationship to gangs. The Tribunal does not accept that her father was forced to close one of his stores because of gang interest. The Tribunal does not accept that the applicant’s father was taken or questioned or tortured by gang members about gang connections at any time or that in 2012 the applicant's father was tortured by a gang to determine if he had provided information to the army or that they threatened to eliminate her family if it was discovered that her father had been involved with the army. The Tribunal does not accept gangs believe that he is an informer for the army. For the same reason, the Tribunal does not accept that gangs have continued to harass the applicant’s family, or have threatened to kill her [siblings] if her father does not return. The Tribunal does not accept that gangs have threatened harm to the applicant for any reason.

As discussed above, the Tribunal has considered whether the applicant as the daughter of a wealthy businessman who was previously extorted and whose name is on businesses will be subject to extortion from these gangs on return to Sri Lanka for any reason, including her father’s claimed connections to gangs. However, given the improved security situation in Sri Lanka set out by DFAT and discussed with the applicant, the Tribunal does not accept there is a real chance or a real risk that the application faces any interest from gangs, including extortion, intimidation or harassment. The Tribunal finds that the applicant does not have a well-founded fear of persecution on this basis. For the same reason, the Tribunal finds that the applicant does not face a real risk of significant harm for these reasons.
For these reasons, the Tribunal finds that the applicant does not have a real chance of serious harm now or in the foreseeable future from gangs for any reason. The Tribunal finds the applicant does not have a well-founded fear of persecution on this basis. For the same reasons, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that she will suffer significant harm from gangs in Sri Lanka.
Electoral violence
At hearing, the applicant discussed electoral violence/retribution associated with elections in 2009, and described difficulties faced by her community after the election. The Tribunal has considered whether the applicant faces a real chance of serious harm or a real risk of significant harm on return to Sri Lanka arising from electoral violence. The Tribunal accepts the applicant’s evidence that electoral violence associated with elections in 2009 occurred. However, as put to the applicant DFAT advice from January 2017 indicates that recent elections have been generally peaceful and orderly.[25] The Tribunal also accepts the applicant’s evidence that she does not have any political interest or political profile for any reason. Based on the applicant’s accepted circumstances, a person with no political involvement or profile, and the country information before it, the Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm from electorally related violence now or in the foreseeable future.
[25] DFAT Country Information Report, Sri Lanka, 24 January 2017.
Cumulative assessment
Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that the applicant does not have a real chance of serious harm now or in the foreseeable future for any reason. The Tribunal finds that the applicant does not have a well-founded fear of persecution.
Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm.
CONCLUSION

100. 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
101. The Tribunal affirms the decision not to grant the applicants Protection visas.
Amanda Paxton
Member

[2018] AATA 377

15 February 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness