1609357 (Refugee)

[2019] AATA 5459

1609357 (Refugee) [2019] AATA 5459 (12 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1609357

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Michael Judd

DATE AND TIME OF

ORAL DECISION AND REASONS:         12 July 2019 at 2:30 am (WA time)

DATE OF WRITTEN RECORD:                5 September 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 05 September 2019 at 9:46am

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – political opinion – member of Sri Lankan Muslim Congress – particular social group – returnees from overseas – religion – Muslim – victim of abduction and extortion – harassment by Buddhist terrorist group – Bodu Bala Sena – relocation within home country unreasonable – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan v MIEA (1989) 169 CLR 379

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to sections 431 and 440 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.

APPLICATION FOR REVIEW

ORAL DECISION OF MEMBER JUDD  [2.44 pm]

MEMBER: This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under section 65 of the Migration Act. The applicant claims to be a citizen of Sri Lanka and applied for the visa on 23 July 2014 and the delegate refused to grant the visa on 25 May 2016.

The applicant appeared before the tribunal to give evidence and present arguments.  The tribunal hearing was conducted with the assistance of interpreters in the Sinhala and Tamil Sri Lankan and English languages.  The applicant was represented in relation to the review.

The Relevant Law

The criteria for a protection visa are set out in section 36 of the Act and schedule 2 to the Migration Regulations. An applicant for the visa must meet one of the alternative criteria in section 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 complimentary 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.

Section 36(2) 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.

Australia is a party to the Refugee’s 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) defines a refugee as being any person who owing to a 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 nationally and is unable or owing to such fear is unwilling to avail themself 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 qualifies some aspects of Article 1A(2).

There are four key elements of the Convention definition.  First, an applicant must be outside of his or her country.  Secondly, an applicant must fear persecution and it must involve serious harm to the applicant and systematic and discriminatory conduct.  Examples of serious harm are set out in section 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.

Further, persecution implies an element of motivation on the part of those who persecute for the infliction of the harm.  People are persecuted for something perceived about them or attributed to them by their persecutors.

Thirdly, the persecution which the applicant fears must be for one or more of the reasons set out in the Convention definition being race, religion, nationality, membership of a particular social group or political opinion.  The persecution feared need not be solely attributable to a Convention reason.

Fourth, an applicant’s fear of persecution for a Convention reason must be well founded.  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 a 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 farfetched 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 of the protection of his or her country or countries of nationality because of his or her fear to return to his or her country of former habitual residence.

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.

If a person is found not to meet the refugee criterion in section 36(2)(a) then 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, in this case the tribunal, 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 the receiving country there is a real risk that he or she will suffer significant harm.

The tribunal reserves its right to develop upon the aspect of assessing credibility but for the purposes of the oral decision I do not intend to refer to the authorities at this point in time.

Section 499 of Ministerial Direction
In accordance with Ministerial Direction number 56 made under section 499 of the Act the tribunal is required to take account of PAM3 Refugee and Humanitarian Complimentary Protection Guidelines and PAM3 Refugee and Humanitarian Refugee Law Guidelines and any country information assessed or assessment prepared by the Department of Foreign Affairs and Trade for protection status determination purposes to the extent that they are relevant.

Country of Reference and Migration History

The applicant is a national of Sri Lanka and holds no other nationality status.  The tribunal is satisfied that Sri Lanka is the receiving country.  The tribunal is satisfied that the provisions of sections 36(3) to 36(7) are not applicable to the circumstances of the applicant.

The decision record indicates that he arrived into Australia [in] June 2014 on a [temporary] visa, which was granted on 29 August 2013.  It expired on 18 June 2014, one week subsequent to his arrival.  The application for protection was made on 23 July 2014.

Identity

The tribunal notes identity was not an issue for the delegate.  The tribunal is satisfied as to the applicant’s identity and that he is who he claims to be.

Consideration of Claims and Evidence

The key matters for determination by the tribunal are whether the applicant is a person in respect of whom Australia has protection obligations as outlined in paragraphs 36(2)(a) or (aa) of the Act or is a member of the same family unit as a non-citizen in respect of whom the tribunal is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant.

More particularly, the tribunal is required to determine whether the applicant has a well founded fear of suffering serious harm in Sri Lanka now or in the reasonably foreseeable future and if not so satisfied whether there is a real risk of the applicant suffering significant harm in Sri Lanka should he return to that country.

Background and the Initial Claims

He initially claimed that he is a married Sri Lanka Sunni Muslim who is a [Occupation 1] by occupation.  His home area is [Town 1] and surrounds based in Southern Province, Sri Lanka.  He has travelled to a range of countries in relation to his occupation as a [Occupation 1].  Whilst living in Sri Lanka he had been significantly involved in the Sri Lankan Muslim community and had been a member of related political organisations, mainly the Sri Lankan Muslim Congress SLMC.

During [a certain year] he was a candidate [in] his local [Town 1] area as a member of the SLMC.  He claimed that in February 2014 he attended and spoke at a conference in his hometown during which he criticised the former Sri Lankan President and his Government for events that occurred in July 1983.  Comments made by him during the speech were directed negatively towards a Buddhist terrorist group, which targeted Muslims, known as the Bodu Bala Sena or BBS.

He claimed that in March 2014 he was attacked by BBS members and that this forced him to travel to Australia in June 2014 under a previously issued [temporary] visa.  The visa was granted in August 2013.  He claimed that on 1 March 2014 he was briefly kidnapped by members of the BBS and instructed to stop being involved in social work, political, and any religious activities.

They interrogated him in relation to a valuable [item] that he had purportedly bought for [a large sum of] Sri Lankan currency in November 2013.  During the course of the brief kidnapping he claimed that two men he believed to be police officers talked to these men during the abduction.  The applicant was released by the same men some hours later after agreeing to pay them an amount of [Sri Lankan] currency in one week.

He claimed that the Sri Lankan Police were unable to help as the BBS were too powerful.  As he could only raise [a certain amount of money] he contacted his abductors who agreed to accept the lesser amount.  [In] March 2014 he attempted to settle with the abductors by paying [a lesser amount] but when pressed for the extra [money] by them he was able to source that money.  On payment these people informed him that he should not be involved in any business or social work.

In April 2014 two of these men contacted him by coming to his home and asked him as to the location of the [valuable item].  He told them he did not currently have it and it was not as yet sold.  He claimed that two weeks later the same men contacted him and asked him how much the [item] was sold for and they said that if it was not sold that they wanted it.  He claimed that [in] June 2014 following a meeting with a potential buyer he was attacked by the same men involved in the prior kidnap and extortion.  During the struggle he dropped the [item] and accidentally damaged it.

As mentioned, on 28 August 2013 he was granted a [temporary] visa to attend a [trade] fair, which was occurring in Australia, in September 2013.  He claimed that he did not have the time to subsequently travel to the fair.  Because of the claimed harassment by the BBS he used the same travel visa to travel to Australia.

[In] June 2014 while living in [City 1] he attended a demonstration organised by the Sri Lankan Muslim Community of [State 1], which occurred in front of [a certain location].  He was present to protest against violence against Muslims that was occurring in Sri Lanka and to seek the banning of the BBS and further, to criticise the Sri Lankan Government’s lack of action.

Following the protest he claimed that the same men who extorted the money contacted his wife in Sri Lanka and told her that they knew where he was and that they would target him on his return.  He claimed he will be further targeted by the BBS due to being a Muslim [Occupation 2] and a person of good standing in the Muslim community who has protested against the BBS.  He claimed that the BBS will continue to try and extort money from him if he returns.

Further, he claimed that departure from Sri Lanka has resulted in his business no longer operating and him being unable to pay debts to the bank and also debts to a friend.  He doubted whether Sri Lankan authorities would be able to offer him any effective protection because they support the BBS.

Proceedings Before the Tribunal in Assessing these Matters

The tribunal has taken into consideration documents and information contained within the departmental file, the tribunal file, and the evidence as received at hearing.  For reasons that will become evident in this decision the tribunal considers it is appropriate to first consider those aspects of the claims that relate to events and circumstances in Sri Lanka during the course of 2019, which is well post-arrival of the applicant onshore.

It is important to note that the tribunal does not consider these to be surplice claims by reason of the claims having already been initially ventilated in the application.  The claims have now been refined to also include events subsequent to his departure of his home country.

During April 2019 the tribunal had been made aware of these events and had received up to date country information from the Department of Foreign Affairs and Trade pertaining to the events.  The tribunal provided the representative with the recent information on 14 May 2019.  The tribunal sought out the applicant’s responses upon the new DFAT information.  On 28 May 2019 a written response was received from the representative.  The tribunal accepts that the applicant has further developed upon the initial claims concerning his religion and ethnic background as Muslim so as to encompass the events in Sri Lanka of April 2019 and that he fears persecution for reason of those events should he return to Sri Lanka.

The tribunal notes that the delegate of the department accepted the following claims, that the applicant is Tamil Muslim from a southern township of [Town 1], Sri Lanka.  That he was involved with a politically focused group named as the Sri Lankan Muslim Congress and that he did run for office in local [elections].  It was accepted that he did take part in a demonstration in June 2014 in [City 1] and that was directed against the BBS.  During the demonstration criticism was directed at the Sri Lankan Government’s lack of resolve in addressing issues with the BBS.

It was accepted that he was involved in the Muslim community and related organisations in his home area.  It was also accepted he is a respected member of the Muslim community.  Also, that he did speak at a political meeting or conference in February 2014 that was disrupted by the BBS.

Evidence Obtained at Hearing

The tribunal has taken into consideration all of the information and the evidence in its possession, including what is included in the departmental file.  Due to the recent nature of the key claims the tribunal will direct its assessment to the claims that have arisen during 2019.

A further hearing occurred on 25 June 2019.  The applicant confirmed his wife was still living in [Town 1].  The city has a population up to [specified] people of whom four to five per cent or thereabouts are Muslim.  The industries for the area include fishing, agriculture, general business and tourism.  His wife is now living with his mother and his aunty, also with their children.  He last saw his wife in June 2014.  He confirmed that he is still in a relationship with her and that they speak on a daily basis.

He became aware of the recent serious issues in Sri Lanka on or about 21 April but had been generally aware of issues between the Buddhist population and the Muslims for a long time.  He became aware of the issues through Sri Lankan Internet news sites and the Australian news.

He was generally aware of incidents in the [Town 1] area, which included a [certain incident].  He claimed that two weeks prior to the hearing Buddhist monks had got together to demonstrate against Muslims.  He claimed that people in the [Town 1] area being told not to trade with Muslim businesses.

He further claimed that the local mosque in [Town 1] is being currently guarded by the Army but the mosque had been damaged in 2008 and following the incidents in 2011 had been damaged on three occasions.

The tribunal inquired as to his views as to the number of radical Buddhists in the [Town 1] area.  He believed that it used to be less than one per cent, now the numbers would be much stronger.  He believes that the media in Sri Lanka create anger and racism and that some parliamentarians also create tensions.  People are leaving the [Town 1] area to move to Colombo for safety and people who came to that area to study have also moved away.

His understanding was that the Sri Lankan authorities were not dealing properly with extremist groups who are causing trouble.  There have been tensions long term between the Buddhist Sinhalese and Muslims and that this was being accentuated by the media and politicians.  He said that troubles happened in front of the Army and also the police but no action is taken.  Some politicians tell the community that Sri Lanka will become a Muslim country within 20 years, which will thereby spark tensions.

He was aware that many Muslim parliamentary ministers had resigned and these included members of the SLMC.  The tribunal notes that this is generally consistent with country information that it has sighted.

The tribunal inquired as to whether he had any knowledge of Muslim people being injured or killed in the [Town 1] area since 21 April 2019.  He said that these people are living with fear, however a special task force and the police are protecting them.

He told the tribunal about an incident post 21 April 2019 in which a group of men had come to his house in [Town 1] occupied by his mother, wife and children.  The house was ransacked [one] afternoon.  [A number of] men entered the premises, his wife did not know who they were.  They did not take anything away from the property.  The group did not ask for the applicant or mention him by name.  He believes the men were not part of the Sri Lankan security forces.  His wife did not know who they were.  When he spoke to her after the raid she was in a great deal of fear and stress.

He confirmed he had never lived in any other area of Sri Lanka but that he was generally aware of most areas.  He has [siblings] living in Colombo and his wife has family living in Kandy.  They have contact with family every two or three months.

The tribunal inquired as to why he and his wife could not move to other places to ensure their safety and he responded to the effect that they may not be accepted in these areas as being new people.  He further said that being Muslim they could be seen as a potential risk in attracting retribution for the April 2019 attacks.

The tribunal inquired as to his view as to effectiveness of police protection and he responded that when the Sinhalese people are involved the police will not do anything at all and that included the Army.

His children are now aged [specified] years.  He said that his wife had packed up a case just in case they needed to quickly move out of their home.  Their neighbours who are Muslims had also done this.
The tribunal inquired as to whether he considered there was a link between the raid upon the house whilst his wife was pregnant and earlier claims made by him to the department as to men visiting his house some years ago.  He confirmed that there had now been three occasions when men had come to his house when he was not there and that he believed there was a link.  He thought it may be the same people.  He did not provide any basis however as to why he believed that to be so.

The tribunal sought confirmation as to what he feared if he returned to Sri Lanka.  He responded that he feared he would be arrested and taken into custody and that in his village alone 250 people have been arrested.  He said that the Sri Lankan criminal justice system is so ineffective because people who do damage are promptly released by the police or the courts.

The tribunal spoke to Ms [A] on the same date, 25 June 2019.  The tribunal spoke to [Ms A] who is the wife of the applicant on 25 June.  She confirmed that she and the applicant had [a number of] children who now all go to school.  She was managing without her husband and she believed it was very important that he be protected from people who would wish to do him harm.  She said that she and the children are all healthy and that the house she currently lives in is owned by her family.

She said it was difficult to live in Sri Lanka at the moment.  She had heard messages that people would be coming by bus or lorry to attack Muslims in her area.  This is why she packed up things ready to leave her house.  She did not know the people who had come to the house to take weapons away but she believed they were not from a police force or Army.  They did not appear to be Muslim.

She said the men had come to the house about four days after the significant bomb incident in Sri Lanka and they arrived [looking] for weapons.  The neighbours’ houses were not raided at this time although they are mostly Muslims.  None of the men that came to the house were wearing uniforms.  She had feared for her safety.  The tribunal asked whether there were any particular people that she feared and she responded that she does not go outside because she fears generally for her safety.

She recalled that relations between the Buddhist population and Muslims in the [Town 1] area had previously been good but now they were bad.  She no longer goes to Sinhalese places.  She believed that it was after the change of government in Sri Lanka that things started to get worse.

The tribunal inquired as to where she would go with the family if she had to leave her house and she responded that she may go to a local mosque or to another safe house.  She confirmed that she had relatives in other locations of Sri Lanka, including Kandy, [Location 1], and [Location 2].  She was not confident however, that her relatives would be any safer where they live than she would.

She did not think the police would provide effective protection from persecutors because police are supporting these people and lots of events happen in front of the police.  Her source was what friends and neighbours tell her.  At this point she became noticeably upset during the hearing.  She did not notice whether any of the men who entered the property were armed.

The tribunal spoke to a Mr [B] also on 25 June 2019.  He is a resident of [Town 1] and well known to the applicant and his wife.  When the applicant left Sri Lanka he did not tell him to which country was he going and nor did he say the reason other than he was having problems.

The tribunal asked him what was his understanding of the problems and he responded that the applicant had received threats.  He confirmed that the applicant had spoken out at political meetings and that he was a straight talker who always spoke the truth.  He believed that the applicant was a truthful person.  The tribunal notes however, that the witness had not actually been to the meetings at which the applicant spoke.

At some point he learnt that the applicant had been abducted whilst in Sri Lanka and a ransom had been requested.  He confirmed that he lives about 50 metres away from the applicant’s wife’s home, which is a Singhalese village with a few Muslim houses.  He told the tribunal about two Muslim people having been recently arrested and taken away but he was not sure of their names.  These people had been arrested for possession of fake currency suspected of being linked to terrorist activities.

He confirmed the evidence of the applicant and his wife about a group of men having gone inside the gate of the applicant’s house.  He did not see them go into the house and he did not see them take away anything.  He noticed they were not wearing Army or police uniforms.  He asked for identity but they did not provide any.  Members of the group asked him if he was Sinhalese or whether he was Muslim.  He said that the two arrested people were Muslims but the people who came in through the gate were Sinhalese.  He confirmed that the family or the applicant’s family are currently living back inside the house.

The tribunal received some brief evidence from the applicant who sought to clarify some evidence of Mr [B].  He said the two Muslim people who had been arrested had been suspected of assisting Muslim terrorists.

The tribunal notes quite a deal of country information.  One article is titled “Stats of 5,000 Notes in Terrorist Safe Houses”, it is dated 2 May 2019 and it says that investigations carried out with regard to the Easter Sunday terror attacks have revealed that the terrorists and their close contacts were in possession of a large sum of money.  The significance in this regard is the fact that the large sum of money was available in 5,000 notes, Sri Lankan currency notes.

The tribunal has sourced and considered a considerable amount of country information pertaining to Sri Lanka in relation to events from 2018 to the present.  Information considered of particular relevance to the applicant’s matter are as follows.  It is noted that some of the information cuts across the same events and issues.  There was an article published 14 March 2018 titled “The State of Emergency in Sri Lanka Remains Despite Calm Returning After Violence”.  I think it was located on Wikipedia.

Schools reopened on Monday in Sri Lanka and the government said that they had arrested hundreds of people for participating in anti-Muslim riots.  A state of emergency remained in effect in the island nation, which had been gripped by widespread violence, violence which started in the Central Province.  At least two people died.  At least 11 mosques were reported as being torched and 200 homes and businesses burned when the violence was at its peak.  Police reported 230 arrests both for direct involvement and for spreading anti-Muslim hate speech on the Internet.  Police said that they were expecting more arrests in coming days.  Lifting of the state of emergency was expected, according to Al Jazeera, but had not occurred as of Monday.  Prime Minister Wichremesinghe visited Kandy District over the weekend and told reporters ‘Victims will be compensated’.

Ever since a nearly three decade long war came to an end in 2009 relations between Sri Lanka’s Sinhalese Buddhist majority and the Tamil Sunni Muslim minority have remained tense but largely peaceful until this month.  On March 4 in the village of Telvanir a traffic accident occurred, which escalated into a fight, where a group of young Muslim men beat a Buddhist man who later died, according to Al Jazeera.

On March 5 hundreds of Sinhalese whom local residents and officials said were from outside the city took to the streets of Kandy.  The mob targeted Muslim’s homes and businesses setting several on fire.  A Muslim man’s dead body was found inside one of the burned buildings.

On March 6 2018 the Sri Lankan Government declared a state of emergency and imposed a curfew on the region.  The emergency declaration by then President Sirisena allowed the Army to be called into action.  Nevertheless the unrest and violence spread to several towns surrounding Kandy.  Government officials surmised that the writers were coordinating their attacks at specific locations through social media.  Internet access was cut off for the province and social media were blocked for the entire country.

On March 7 the curfew was expanded to be around the clock after officials said a hand grenade went off while a man was carrying it, which killed him as well as injuring at least 11 other people.  Police said they identified a hardline Buddhist nationalist who posted an anti-Muslim video, which was thought to be a source of incitement on social media.

Reports of the violence spread as far away as Weligama, which is on the south coast of the island, some 240 kilometres south of Kandy.  The next day being March 8 mobs of rioters burned shops and threw Molotov cocktails at a mosque as religiously fuelled violence continued.  The government arrested a hardline Buddhist nationalist known for his anti-Muslim sentiments as being the main agitator behind the violence.  That person was Amith Weerasinghe.

The tribunal has reviewed DFAT country information report for Sri Lanka dated May 2018 and has extracted the following passages.

The current President Sirisena was elected in January 2015 on a platform of post-conflict reconciliation, transitional justice, good governance, anti-corruption and economic reform.  Progress has been slow and the Sri Lankan public and other observers are increasingly uncertain that the coalition government will manage to deliver reform during the remainder of its political term.

Sri Lanka’s most recent census in 2012 estimated that 74.9 per cent of the population was ethnic Sinhalese, 15.4 per cent was Tamil, 9.2 per cent was Muslim or Moors, and 0.5 per cent were others.

Over a quarter of the Tamil population are of Indian origin and are known as plantation Tamils, hill country Tamils or up country Tamils.  Muslim in Sri Lanka describes both ethnicity and religion.

Sri Lankan’s perceive a lack of economic opportunities, including university education, as being significant push factors for external migration, including economic opportunities.

Elections have historically been volatile periods in Sri Lanka.  Violent incidents spiked in the weeks preceding the 2015 parliamentary elections but reports of political violence have declined since the 2015 election.  Independent election monitors recorded fewer violence incidents in the February 2018 local government elections compared to previous elections.

Most Sri Lankan’s tend to live within their own ethnic communities although different ethnic groups live within close proximity in major urban areas.

DFAT assessed that Sri Lankan’s of all backgrounds face a low risk of official or societal discrimination based on ethnicity, including in relation to education, employment or housing.  Religion plays a significant role in daily life in Sri Lanka and strongly correlates with their ethnicity.  Most Sinhalese are Buddhist and most Tamils are Hindu.  A minority of each ethnicity is Christian.  Muslims are considered a separate ethnic group.  The government has publicly declared its commitment to religious and ethnic reconciliation.

Article 9 of the Constitution grants Buddhism a foremost place. The Supreme Court has ruled that the State is constitutionally required to protect only Buddhism. Muslims are the third largest religious 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. Most Muslims speak Tamil as their first language. Muslim communities live throughout Sri Lanka, including in Colombo and Kandy, with large communities in the east in Ampara, Batticaloa, and Trincomalee, and in the west in Mannar and Puttalam.

In November 2017 some Muslim businesses were temporarily boycotted because of tensions between the Tamil and Muslim communities in Batticaloa.  The Sri Lankan Muslim Congress is the largest Muslim political party.  It has seven Members of Parliament and is part of the governing coalition.  The SLMC’s leader is a Cabinet Minister.  In 2014 the All Ceylon Muslim Congress joined other parties to form the United National Front for Good Governance.

Although most Muslims sided with the Sinhalese Government forces during the conflict religious tensions between Muslims and the Sinhala Buddhist majority have risen since the end of the conflict.  National Buddhist groups such as the BBS continue to stoke religious and ethnic tensions, including through social media posts.  Greater freedom of expression under the current government has enabled an increase of hate speech against Muslims and other religious minorities in Sri Lanka.

Minority Rights Group International has reported that there were 60 incidents of hate speech, discrimination or attempts to desecrate or destroy Muslim religious buildings in the first six months of 2016.  The OHCHR reported 30 registered incidents of violence against Muslims across the country around May 2017, most were against Muslim owned businesses and mosques and were accompanied by anti-Muslim rhetoric from the BBS.
In September 2017 a mob led by Buddhist monks belonging to the Sinhalese Nationalist Front vandalised and attempted to storm a Colombo house where 31 Muslim Rohingya refugees were staying.  Buddhist groups burned more than70 Muslim shops and houses in November 2017.  The Muslim Council of Sri Lanka wrote to Prime Minister Wichremesinghe in May and September of 2017 urging the government to take action against the hate speech and the violence, which was targeting the Muslim community.

President Sirisena has committed to investigate anti-Muslim hate crime and to bring perpetrators to justice although local sources claim that for political reasons authorities are reluctant to address violence perpetrated by religious clerics due to the concern of public backlash.

According to the US Department of State local police and local government officials sometimes tacitly support Sinhala Buddhist nationalist groups by failing to respond to complaints or to harassment or property damage occasioned by Buddhist monks.

On 6 March 2018 the government declared a nationwide state of emergency for 12 days in response to incidents of communal unrest between members of the Singhalese Buddhist and minority Muslim communities in Kandy District Central Province.  Despite the deployment of high numbers of military and the police several arrests and extended curfews violence continued in several towns around Kandy until 7 March.  Two Muslim and two Sinhalese people were killed and dozens were injured.  Police arrested the leader of the Buddhist extremist group Mahason Balakaya and Amith Weerasinghe in relation to the violence.

The events in Kandy represented the largest violent incident between the Buddhist and Muslim communities since June 2014.  This was when the General Secretary of the BBS had delivered a speech that (indistinct) for inciting riots that lasted for two days.

The police arrested but subsequently released one of those involved called Gnanasara on several occasions.  The events in Kandy followed a smaller incident on 27 February 2018 whereby Buddhist national groups perpetrated arson attacks against Muslim owned residences, shops and a mosque.  This occurred in Ampara Eastern Province.  There were rumours that a Muslim restaurant was mixing sterilisation drugs in its food to make Sinhalese women infertile and that this triggered the attacks.

In 2016 and 2017 local groups reported the destruction of Buddhist shrines in the north and east in Hindu and Muslim areas with few, if any, Buddhist residents.  A lack of reliable statistics precludes an accurate assessment of whether incidents are increasing but supporters of Sinhala Buddhist nationalist groups have engaged in a sustained campaign of hate speech against Muslims in recent years.
Sri Lanka has no laws or government policies that hinder 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 HRCSL.  In practice these avenues may be limited by the linguistic barriers and by a lack of resources.  Some Tamils in the north and the east lack confidence in police and security officers and may therefore be less likely to use these avenues to seek redress.

The DFAT report indicated that Sri Lankan security forces maintain effective control throughout Sri Lanka and individuals are unlikely to be able to relocate internally with any anonymity.  In particular the Sri Lankan military, intelligence and police continue to maintain a high level of awareness of returnees to the north and east.  The government has reduced the level of monitoring and some individual returnees have reported that the movements continue to be recorded.

In relation to returnees those travelling on temporary travel documents the police undertake an investigative process to confirm identity which would identify someone trying to conceal a criminal or terrorist background or trying to avoid court orders or arrest warrants.  This often involves interviewing the returning passenger, contacting the person’s claimed hometown police, contacting the person’s claimed neighbours and family and checking criminal and court records.  All returnees are subject to these standard procedures regardless of ethnicity and religion.  DFAT understands that detainees are not subject to mistreatment during processing.

The tribunal sourced more up to date information in relation to the attacks of 21 April this year from the Department of Foreign Affairs and Trade.  The attacks appear to have been committed on behalf of ISIS global agenda.  The Sri Lankan reinforce ISIS commitment to seeking out vulnerable States and flipping local grievances into subcontracted terror campaigns enacted in its name.  Large scale terror attacks such as those in Sri Lanka may be seen as effective promotional activities through which ISIS seeks to remain relevant to its followers in its post-caliphate phase.  Sri Lankan security forces have killed or arrested most of those linked to the Easter suicide bombings, including 15 suspects in a shootout on the following Friday.

More than10,000 troops have been deployed across the island in an effort to uproot NTJ’s countrywide network with Islamic religious groups reported to be lending their support to authorities.  While NTJ’s leader has been killed and scores of further arrests within the group US officials warn that the terrorist threat is ongoing, that members of NTJ are still active.

Other intelligence suggests that Islamic militants may be planning fresh attacks prior to the Islamic holy month of Ramadan, which begins on 6 May.  Security remains tight across the country with security forces continuing to track down suspects.
Fears of revenge attacks against the Muslims have promoted or prompted heavy security deployments and intermittent curfews.  Authorities have sought to unify the country with the Prime Minister publicly requesting that no harm be done towards the Muslim community.  The Human Rights Commission of Sri Lanka has also appealed to the country’s citizens to refrain from hate speech or any acts inciting communal violence in the aftermath of the attacks.  Nearly two weeks after the attacks Catholic church services remain suspended.  Catholic schools remain closed, however public schools from grade 6 upwards reopened on 6 May.

Despite such pleading small scale attacks targeting Muslims have continued to occur.  Nearly 1,000 Muslims have been displaced after landlords came under local pressure from angry residents to evict them.  Many were Ahmadiyya Muslims who had previously fled Pakistan.  They are reportedly staying under police protection at the Ahmadiyya Mosque in Negombo while others have been sheltered in a local school.  Islamic schools in Sri Lanka have also come under increasing attention.

The current DFAT travel advice for Sri Lanka indicates that security has increased across the country following the 21 April attacks that targeted prominent hotels and churches in the cities of Colombo, Negombo and Batticaloa.  The attacks killed over 250 people and injured over 450.

The tribunal has also sourced open Internet sources about the attacks.  They are, of course, called the 2019 Easter Bombings in Sri Lanka.  On the morning of Easter Sunday, 21 April 2019, suicide bombers carrying nail bombs in backpacks struck three Roman Catholic churches during Easter services.  At around the same time suicide bombers also struck three five-star hotels in around the capital of Colombo being the Shangri-la Hotel, Cinnamon Grand Colombo, and Kingsbury Colombo Hotel.  Some 250 people died, including 40 foreign nationals, and 500 were injured.  The perpetrators were identified as leaders and associates of the NTJ and Islamic State.  In the afternoon there were two further blasts as police officers began to carry out raids across the city.

The perpetrators were Jihadists from the Tamil speaking Muslim minority.  It transpired that Sri Lankan authorities had been warned that NTJ were planning such an attack.  Days after the Easter attack President Sirisena stated that over 130 suspects linked to the Islamic State group had been operating within Sri Lanka.

A number of international commentators have found the question of why Christians were targeted to be a puzzle given the relations between the Christian and Muslim communities in Sri Lanka, both of which are minority groups have been seen as a model of peaceful coexistence and given that both Christians and Muslims have been targeted by extremist Buddhist groups since the war against the Tamil separatists ended.
In the aftermath of the attacks President Sirisena told a press conference that every household in the country would be checked and a list of permanent residents of every house will be established to ensure that no unknown persons could live anywhere.  This information is quite relevant in the sense of understanding the entry of the group onto the applicant’s wife’s home and why it may have occurred at that particular time.

Further country information indicates that officials had urged Muslims to stay home for Friday prayers in an extraordinary call by the clergy to curtail worship as fear of more attacks plagued the country.  Some mosques defied the call opening for midday prayers.

In the final week of April 2019 Sri Lanka’s President Sirisena said that he was using an emergency law to ban face coverings in public and that any piece of cloth or garment that covers the face was to be outlawed.  In the final week of April 2019 it was reported that the Prime Minister had said that the delay in enacting new counterterrorism laws had become a barrier to the arrest of the Easter Sunday attackers because Sri Lanka does not have any laws to arrest individuals who join foreign terrorist organisations.

On 29 April 2019 it was asserted that since 21 April 2019 Easter Sunday bombings angry crowds had threatened and assaulted primarily Muslim south Asian migrants who included asylum seekers and that the Sri Lankan authorities needed to take steps to protect such persons.  Media and local activists report that nearly 1,000 refugees and asylum seekers were displaced after landlords came under local pressure to evict them.  Many had sought safety at nearby mosques or at the local police station in Negombo.  Authorities were forced to cease efforts to relocate them to suitable neighbouring areas because of protests from the local communities.

On 24 April 2019 Jane’s Intelligence Weekly assessed that communal violence against Muslims was a high risk in the one year outlook causing disruption to hotels and tourist areas.  It was stated that the Easter attacks are likely to embolden Buddhist Sinhalese national groups that had previously led protests against Muslims.  It was said that unrest is likely to involve arson attacks against Muslim associated properties, crude knife attacks against Muslim individuals.  Areas with large Muslim populations, including Colombo, Galle, Gampaha, Kalutara, Kandy, Kegalle, and Kurunegela are most at risk.

On 24 April an RSIS commentator expressed a view that there are clear signs that peace is fragile and that relations between the different religious groups in the country have been affected by global and regional extremism and that given the tenuous Buddhist Muslim relations a fear of reprisal attacks by hardline elements within the Sinhalese Buddhist majority against Muslims in Sri Lanka looms large, which authorities will have to guard against.

On 28 April Prime Minister Wichremesinghe announced that Sri Lanka forces had killed or arrested most of those linked to the Easter suicide bombings and that the country was ready to return normality.

DFAT’s Smart Traveller advice dated 1 May 2019 stated that:

Terrorists are likely to carry out further attacks.  Attacks could be indiscriminate and could include places visited by foreigners.

On 30 April 2019 Reuters reported that according to a government source security authorities had ordered police and other security forces across the Buddhist majority country to remain on high alert because militants were expected to try to strike before Ramadan.

The ICG Sri Lanka Project Director Alan Keenan gave the opinion that the attacks could go on to have lasting and destabilising effects, which would legitimise the position of militant Buddhists and anger Christians both ethnic, Tamil and Sinhalese and strengthen the hand of the Sinhala nationalist opposition.

A Brookings Institute analyst gave the opinion that Sri Lanka may not have given due attention to warnings of such an attack because its historical focus was on Tamil terrorism rather than on Muslim Christian violence.

On 27 April 2019 the Economist asserted that no one expects the bombings to reignite the strife of the civil war though fears of revenge attacks against Muslims have promoted or prompted heavy security developments, curfews and the declaration of a State of emergency.

The tribunal notes that when the civil war ended in 2009 many hoped that Sri Lanka’s ethnic groups would find a way to coexist in peace.  It did not take long before the country’s Buddhist extremists found another target.  Currently Sri Lanka’s most active group is BBS.  BBS entered politics in 2012 with a Buddhist nationalist ideology and agenda.

The UK Home Office has reported as recently as 2018 that since 16 April 2017 human rights defenders recorded 18 alleged incidents of violence and intimidation against Muslims, including petrol bombs and mob attacks on mosques, businesses and homes and that this represented a re‑emergence of violence against Muslims in Sri Lanka.  The BBC reported that in early March 2018 two people were killed, nearly 450 Muslim owned homes and shops were damaged, and 60 vehicles burnt in attacks in the central district of Kandy.  The BBC claimed that violence fuelled by hardline Buddhist groups has risen since 2012.

It is noted that according to Muslim and Christian groups harassment from the police and government officials sometimes appeared to be in concert with Buddhist monks and Buddhist nationalist organisations.

The UN Special Rapporteur on minority issues in a report dated January 2017 noted that:

Sinhala Buddhist national groups such as the BBS carried out attacks on places of worship as well as businesses and the properties of religious minorities, including Muslims and Christians.

The Special Rapporteur continued that:

Civil society groups continue to report incidents of destruction of religious property.

The UN Special Rapporteur on minority issues in a report dated January 2017 noted that:

It is essential to recognise the Muslim minority as a distinct group in Sri Lanka with a specified set of circumstances and grievances.  During the war the Muslims suffered greatly, particularly at the hands of the Liberation Tigers.  Intimidation, harassment, abduction and extortion were common and many lost properties and land as well as their lives either through targeted killings or being trapped between warring factions having suffered complete exclusion from successive peace talks despite having been severely affected by the conflict.

The Muslims feel that they have been excluded from meaningful political representation in local and national governments since the end of the war, a situation that continues.

The final pieces of country information (indistinct).  The country of origin information services section effective from 14 June 2019 concerning Sinhala Buddhist groups and it says that:

Groups such as the BBS have continued to promote the supremacy of the country’s ethnic Sinhalese Buddhist population and propagated views hostile to members of religious and ethnic minorities.  Having first emerged in 2012 to 2014 with the support of the Rajapaksa Government the activities of these groups largely ceased after President Sirisena came to power.  However, they have been emboldened by police inaction and the failure of authorities to prosecute those responsible for violence and hate speech.  There have been a number of incidents of violence perpetrated by them in 2017, 2018 and 2019.

A lack of reliable statistics makes it difficult to assess whether the number of incidents are increasing, however the overall incidence of violence remains sporadic.

Following the Easter Sunday terrorist bombings attributed to a little known Muslim extremist group with links to Islamic State an outbreak of anti‑Muslim violence has been attributed to hardline Sinhala Buddhist groups who have repeatedly targeted Sri Lanka’s Muslim community over recent years.

On 13 May 2019 a Muslim man was killed by a mob who stormed his carpentry workshop in Puttalam District while the previous day Muslim owned shops were targeted in the town of Chilaw in anger at a Facebook post by a shopkeeper.  Other significant recent incidents have included anti‑Muslim violence in Ampara and Kandy districts in March 2018.

The violence has been stoked by rumours spread on social media, including allegations that Muslim restaurants had put contraceptives in food to sterilise Buddhist customers to reduce the Buddhist population.

An outbreak of fighting in November 2017 in Galle District was reported and linked to false claims on social media that Muslims were planning to attack the Buddhist archaeological site.

The BBS and other groups have disseminated hate speech and anti-Muslim propaganda despite laws prohibiting it.  BBS activities declined after the change of government in 2015 but the group subsequently re‑emerged in 2016 whilst President Sirisena and Prime Minister Wichremesinghe have condemned the attacks.  Credible sources have stated that the BBS along with other similar groups have been emboldened by the failure of authorities to prosecute those responsible.  The BBS leader Gnanasara has faced accusations relating to the anti-Muslim violence, hate speech and defaming the Quran but the group has been able to continue its activities.  In August 2018 he was sentenced to six years in prison for contempt of court following a 2016 incident in which he interrupted a court hearing.

President Sirisena chose on 26 May 2019 to pardon the BBS leader in a move rights activists said had sent a message that majority Buddhists could incite hate against minorities.

On 4 June 2019 all of Sri Lanka’s Muslim ministers and their deputies resigned their portfolios after accusing the government of failing to guarantee the security of the Muslim community following the Easter Sunday terrorist bombings.  The move came after hardline Buddhist monks set a deadline for the government to fire Muslim provincial governors and the Minister they accused without presenting any evidence of links to Islamic groups.  The leader of the Sri Lankan Muslim Congress said he hoped the move would give the government time to investigate the allegations.

Although Sri Lankan law and government policy does not hinder access to State protection on the basis of religion or ethnicity and all citizens have access to avenues of redress through the police, the judiciary, and the Human Rights Commission, in reality these avenues may be limited by the linguistic barriers, a lack of resources, a lack of confidence in the police and the security forces.  Although the judicial system allows victims of harm or ill treatment to seek protection and redress from the State the judicial system is overburdened often causing lengthy delays for cases to be heard.

Considerations and Finding as to the Protection Claims under Section 36(2)(a) of the Migration Act

Is the applicant a refugee for the purposes of Article 1 of the Refugee’s Convention?

Pursuant to the Refugee’s Convention a person will be a refugee if they have a nationality and are outside of their country of nationality and owing to a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion are unable owing to such fear is unwilling to avail themselves of the protection of that country.

The tribunal is satisfied that the applicant is a non-citizen who is a national of Sri Lanka and is presently outside of his country of nationality.  The tribunal is satisfied that the applicant does not have a right to enter and reside in any other country and as such sections 36(3) to (7) of the Act have no application to this matter.

An applicant must subjectively fear persecution.  The tribunal accepts that the applicant has a subjectively considered fear of persecution in Sri Lanka.  Under section 91R(1) of the Act persecution must involve serious harm to the applicant.  Examples of serious harm are set out in section 91R(2) of the Act.  The tribunal is satisfied that the subjectively feared persecution does involve serious harm.

The persecution must involve systematic and discriminatory conduct.  The tribunal is satisfied that the alleged persecution subjectively feared is systematic and discriminatory in that it is directed towards members of Sri Lanka’s Muslim community who make up a relatively small proportion of the general population.  That is somewhere in the vicinity of nine per cent.  The applicant claims that the percentage of Muslims in the home area of [Town 1] is somewhat less, perhaps as low as four to five per cent.
The feared 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.  It may be enough that the government has failed or is unable to protect the applicant from the persecution.  Based upon the combined effect of the above stated country information the tribunal is satisfied that the feared persecution of Muslim people at the hands of the BBS or other Buddhist affiliated groups is in many instances either officially tolerated or is uncontrollable by the Sri Lankan authorities.

Country information is indicative of the Sri Lankan Government having had ample opportunities to follow through on credible intelligence and to take action to avert the events of April 2019.  The information was not passed up the line.

Country information is generally indicative of the Sri Lankan Government not having had a united position against the persecution of religious minorities, including Sri Lanka’s Muslim community.  It has either officially tolerated by successive Sri Lankan authorities by tacit approval or turning a blind eye to the activities of the BBS or has been uncontrollable by those authorities.

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.  This aspect is satisfied in this particular matter.

Muslim people are persecuted by non-Muslim entities for a variety of reasons, including the fact that they are distinguishable from the vast population of Buddhist Sinhalese in Sri Lanka who perceive Muslims as positioning themselves to one day take over Sri Lanka.  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 country of nationality.

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 this decision is made and it requires a consideration of the matter in relation to the reasonably foreseeable future.  The subjectively feared persecution must be for one or more of the reasons enumerated in the Convention definition being race, religion, nationality, membership of a particular social group or political opinion.  The tribunal is satisfied that subjectively considered the fear of persecution relates to reasons as specified in the Refugee’s Convention being as follows.  The applicant fears being persecuted in Sri Lanka for reasons of religion having been and currently being a follower and identifiable as a follower of the Islamic religion in Sri Lanka.

He fears being persecuted in Sri Lanka for reasons of political opinion having been a member of and political candidate for the political organisation titled the Sri Lankan Muslim Congress.  He fears being persecuted in Sri Lanka for reason of membership of a particular social group being returnees to Sri Lanka from overseas.  The tribunal is satisfied that these reasons are the essential and significant reasons for the persecution subjectively feared by the applicant.

Does the Applicant Have a Genuine Fear Founded Upon a Real Chance of Being Persecuted for a Convention Based Reason?

An applicant’s subjective fear of persecution for a Convention reason must be a well‑founded fear.  This adds in relation to a subjective assessment of the fear an objective requirement.  A person has a well-founded fear of persecution under the Convention if they have a 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 farfetched 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.  A fear of being persecuted is well-founded if there is a real chance of being persecuted.

In Chan v MIEA Mason CJ observed that:

Various expressions have been used in other jurisdictions to describe well-founded fear being a reasonable degree of likelihood, a real and substantial risk, a reasonable possibility, and a real chance.

A fear can be well-founded without any certainty or even probability that it will be realised.  A real chance is one that is not remote regardless of whether it is less or more probable than 50 per cent.

The profile of the applicant is that he is a relatively young man.  A previous seemingly successful [Occupation 2] in the [Town 1] area in the south of Sri Lanka.  He is married with children.  He is a follower of the Islamic religion.

The tribunal accepts that he would be ultimately identifiable as being a follower of Islam in the event he was to return.  The tribunal accepts that he has had a previous profile politically as a member of the SLMC who prior to his departure was seeking out greater public involvement as a leader.  The tribunal accepts that persons in the general [Town 1] area would still be aware of these previous political involvements.
The country information, which the tribunal researched quite extensively considered independently and collectively, leads the tribunal to a conclusion that persons with the profile of the applicant would face a real chance of suffering serious harm in Sri Lanka both now at time of decision and in the reasonably foreseeable future.  This real chance of harm is not in any sense farfetched and nor is it remote.  In the circumstances the tribunal is satisfied that the applicant does have a well-founded fear of being persecuted in his home country for reason of religion being a follower of Islam.  The persons from which he has a well-founded fear of persecution are followers and supporters of the BBS in Sri Lanka and their sympathisers.

It is also considered that he does have a well-founded fear for membership of the particular social group for the purposes of Article 1 of the Refugee’s Convention being returnees to Sri Lanka.  The tribunal need not make specific findings upon the other claims for protection that were initially lodged whilst he was living in Sri Lanka.  The tribunal is satisfied that the real chance of harm or serious harm is not one that is faced generally by the population. 

Relocation

The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region but upon a more general notion of protection by that country.  Depending upon the circumstances it may be reasonable for a person to relocate in the country of nationality to a region where objectively there is no appreciable risk of the occurrence of the feared persecution.

A person will be excluded from refugee status if under all the circumstances it would be reasonable in the sense of practicable to expect him or her to seek refuge in another part of the same country.  What is reasonable must depend upon the particular circumstances of the applicant and the impact upon that person of relocation.

In deciding whether the applicant meets the criteria for a protection visa the question arises as to whether he can relocate within Sri Lanka to avoid a real chance of persecution.

The decision maker must assess the place or places to which the applicant is likely to return.  If the decision maker finds the applicant faces a real chance of persecution in that place or other places the decision maker must look at any other places in the country where they do not face those risks and consider the issue of relocation.  The tribunal is satisfied that he does face a real chance of suffering serious harm in the [Town 1] area in the south of Sri Lanka.

Based upon the effect of the country information that has been summarised the tribunal is satisfied that the real chance of harm or serious harm applies throughout Sri Lanka there being Muslim populations throughout the entire country.  Aligned with that the tribunal must make a finding of State protection.

The tribunal notes that where a persecutor is a non-State agent the willingness and the ability of the State to protect its citizens may be relevant to whether the fear is well-founded, whether the conduct giving rise to the fear is persecution, and whether the applicant is unable or owing to their fear unwilling to avail themselves of the protection of the country of nationality.

Where the persecutor is a non-State agent the willingness and ability of the State to protect its citizens may be relevant to whether the conduct giving rise to the fear is persecution.

Having weighed the mentioned country information and the claims concerning an apparent worsening of conditions for Muslims in Sri Lanka and the information which indicates an incapacity and in some cases an unwillingness to address ethnic and religious issues directly impacting upon Muslim and other minorities, the tribunal accepts that if the applicant were to return to Sri Lanka he would be unable to avail himself of the protection of his own country of nationality against the feared harm within that country.

Conclusions

In this matter the tribunal finds that the applicant is a national of Sri Lanka, is outside of his country of nationality, has no right to enter and reside in any third country.  He does have a well-founded fear of persecution in Sri Lanka now or in the reasonably foreseeable future for reasons of religion and membership of the identified particular social group and that he would be unable to relocate in the country of nationality to a region where objectively there is no appreciable risk of the occurrence of the feared persecution.

The tribunal finds the applicant would be unable owing to his well-founded fear or unwilling to avail himself of the protection of his country of nationality. For the reasons given the tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations, therefore the applicant does satisfy the criterion set out in section 36(2)(a) for a protection visa.

Decision

The tribunal remits the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the Migration Act.

END OF ORAL DECISION  [4.00 pm]