1616460 (Refugee)

1616460 (Refugee) [2019] AATA 5754 (6 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1616460
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Christopher Smolicz
DATE:6 May 2019
PLACE OF DECISION:  Adelaide
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 06 May 2019 at 11:26am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – religious beliefs – actual and imputed political opinion – active arrest warrant – adverse attention by authorities – exposure to interrogation – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
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 on 14 September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant was born in Sri Lanka. He arrived in Australia [in] March 2015 as the holder of a temporary visitor visa. The visa was due to expire [in] June 2015. The applicant applied for the protection visa [in] May 2015.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994. An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
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 relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criteria or comes within Australia’s complementary protection obligations because:
·of his religious beliefs
·his actual and imputed political opinion.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Summary of substantive claims
The applicant is a Sri Lankan Tamil speaking Muslim from [Town 1], in the Kalutara District in the Western Province.
The applicant claims that as a consequence of historic animosity between Tamil speaking Muslims and the Sinhalese in his home area he will be imputed with a pro Liberation Tigers of Tamil Eelam (LTTE) political opinion. He claims that during the civil war the LTTE entered his [home town] and recruited Muslim youth to fight against the Sri Lankan Army. After the ethnic riots in 1983, Muslims feared the Sinhalese would seek reprisal and attack the Muslims. His home town is a rich area and the Sinhalese wanted to rename the town and this caused tension within the local community. The Muslim community was attacked by the government in Jaffna, Batticaloa, Trincomalee. The Muslims in these areas gave their support to the LTTE and for this reason, as a Tamil speaking Muslim the applicant fears he will be considered a supporter of the LTTE even after the new president came to power in 2015. By way of example, he said when his car was stolen in December 2005 the police claimed that the LTTE took the car away and interrogated the applicant. The applicant denied any involvement with the LTTE. The police warned the applicant if he worked with the LTTE he could be arrested.
When the LTTE were captured in 2009, all Muslims thought that the authorities would stop harassing them and stop suspecting them of LTTE involvement. He claims however that the Rajapaksa government continued to send the army and police to check for the LTTE cadres who escaped during the war. Sinhalese mobs started to attack the Muslims in [Town 1] after the defeat. Police would visit shops and take away items. Muslims who objected would be beaten in public. If the Muslims went to the police to complain they would be chased away.
The applicant claims his father was a religious man who assisted the Maulana at their local mosque. His father encouraged him to be involved in the mosque in order to serve the community. The applicant said he was “trustee for the mosque” and was a member on a board with five other people making decisions related to the mosque and welfare of the local Muslim community in his home town.
The applicant claims he started a [business] in his home town and employed many uneducated and poor youths. He was considered a prominent and successful Muslim businessman in his community.
The applicant claims that he and two Muslim elders spoke to the police and voiced their complaints about the Sinhalese mobs raiding their business. The police threatened them and said that if the Muslims wished to be destroyed like the Tamis they should proceed to make a complaint against the Sinhalese. The police threatened to prison him for lodging a false complaint and told him to leave town.
The applicant claims that in 2010 the Muslim elders encouraged him to take part in the election under the United National Party (UNP) seat. He was unable to secure a seat in the UNP and contested the elections as an [alternate] candidate. In support of the evidence the applicant provided a copy of his candidate card which indicates he participated in the 2010 parliamentary elections.
The applicant claims that as a prominent Muslim businessman in his town it was thought that he could control and influence the police if he was elected. After he lost the election the police officers started to harass him. His house was attacked because he did not support Mahinda Rajapaksa and he had problems with the police.
In 2012, [Buddhist] Monks staged a protest to demolish a Muslim mosque and Hindu temple. Muslims were attacked in the Dambulla area and they came to [Town 1] for protection. Anti-Muslim violence spread to his town.
In June 2014, there were further anti-Muslim riots and the applicant’s house was attacked by young hooligans and Buddhist monks who used petrol bombs, guns and stones. The applicant escaped with his wife and children. His property and business were burnt down. The applicant provided photographs of his house which was destroyed and a copy of a police complaint in support of his evidence.
He claims that the same evening a mob of Buddhist Monks was heading towards the mosque with the intention of destroying it. The applicant together with other Muslim men stopped the monks from destroying the mosque. They called the police but the police did not take any action. Muslims were assaulted and shot dead within a few minutes of Special Task Force (STF) officers entering the area. He claims the STF protected the monks and thugs and helped them escape and did not take any action against those who destroyed the mosque.
The applicant claims that in late 2014, he and two other Muslims were arrested and beaten by the police. He was kept in custody and interrogated for standing up against the monks and Sinhalese. He was warned not to identify any of the people who were involved in the June 2014 riots. He was charged for attacking Buddhist monks under the Prevention of Terrorism Act (PTA). He was told that he could be killed under the PTA as a terrorist if he had any involvement with the LTTE in the past and he denied this. He denies he was a member of the LTTE. Whilst he was in prison President Rajapaksa was defeated in the elections and Sirisena had been elected president. Immediately after the announcement police officers entered his cell and beat him and the other Muslim men.
The applicant’s wife was able to obtain the support from a Muslim leader to secure his release from prison. The applicant was released on the condition that he flee the country. His wife also had to pay a bribe and he was released from prison on [in] January 2015. He went into hiding living in his sister’s house in Colombo.
With the assistance of his uncle he was able to leave Sri Lanka on the pretext of traveling to Australia for the cricket.
Even after the new president was elected the Buddhist monks have not been prosecuted and neither have the police officers who were involved in the June 2014 riots.
The applicant continues to be worried about his wife and their children in Sri Lanka.
He claims that since his arrival in Australia the police have been looking for him on two occasions. The police have also spoken to his wife. He faces threats from the government and the police who have opened a new office close to his house.
He claims that he is an eye witness to the attacks on the mosque and therefore is wanted by the Sinhalese party. He claims another eye witness was shot down in a nearby town.
Tribunal hearing
The applicant gave evidence by video at hearing. The Tribunal found the applicant’s evidence was largely consistent with his written claims although the Tribunal had to prompt the applicant about some aspects of his claims.
Specifically the Tribunal told the applicant it was surprised he had not referred to the fact that he was arrested and charged under the PTA when he gave evidence about his conflict with the Sri Lankan authorities. In response to the Tribunal’s concerns the applicant said that he was beaten by the police because he was prepared to give evidence against them. He was threatened that he could be charged under the PTA. He was not formally arrested and charged because in Sri Lanka nothing is official.
The Tribunal also notes that the applicant made new claims during the hearing which had not previously been raised in his protection visa application. Specifically the applicant claims that in 2014 a group of Muslim lawyers came to his hometown to issue legal proceedings against the authorities in relation to their inaction during the riots. He claims there are ongoing court proceedings in Colombo. He claims the court proceedings were brought on behalf of the Muslim community against the authorities and the Bodu Bala Sena (BBS).
He claims he provided a detailed statement regarding the riots and was a witness and this is the reason why he came to the adverse attention of the police. The applicant said that he has subsequently found out that a warrant was issued for his arrest because he did not appear in the court proceedings as a witness because he is in Australia.
The Tribunal expressed its concerns that he had not previously raised this evidence. The applicant said that he only recently found out from his wife that a warrant was issued. The Tribunal noted that there was no evidence from his wife and he has not provided any court documents or a warrant in support of his claim. The applicant maintained that his wife has a copy of the warrant. The applicant stated at the hearing that he did not want to involve his wife in Sri Lanka in the legal proceedings. The Tribunal agreed to give the applicant time after the hearing to obtain evidence from his wife and obtain a copy of the warrant.
After the hearing the Tribunal was provided with a copy of a Sri Lankan arrest warrant and English language translation. The Tribunal notes that the warrant purports to be issued [in] July 2018 by a [Judge]. No evidence was provided by the applicant’s wife regarding how the document came into her possession.
Assessment of claims
As stated above the Tribunal found the applicant’s evidence at the hearing largely consistent with his written claims. The Tribunal accepts that the applicant was a high profile Muslim businessman in [Town 1] in the Kalutara District. The Tribunal accepts that due to his profile he was selected as an independent candidate in the 2010 parliamentary elections with the aim of speaking up for the local Muslim community. In making this finding the Tribunal has had regard to the applicant’s Parliamentary Election Identity Card and finds the applicant was able to provide sufficient detail about his involvement in the 7^th parliamentary elections which were held [in] April 2010.
The Tribunal has had regard to country information which confirms that in June 2014 anti-Muslim riots took place in south-western Sri Lanka. In particular Muslims and their property were attacked by Sinhalese Buddhists in [Town 1] and four people were killed and 80 injured. Hundreds of people were made homeless following the attacks on Muslim homes and businesses.[1]
[1] [Detail deleted]
Against this background the Tribunal accepts that the applicant, as a prominent Muslim leader, would have come to the adverse attention of extremist Buddhists following the April 2010 elections and the June 2014 riots.
The Tribunal accepts that the applicant’s evidence regarding the anti-Muslim riots in his home town and that his home was destroyed and that he took action in protecting the local mosque during the June 2014 anti-Muslim riots. The Tribunal notes the applicant was able to provide a police report and numerous photographs which showed the damage caused to his family home during the riots.
Importantly, the applicant has claimed that due to his profile and involvement in the 2010 elections and the June 2014 anti-Muslim riots he has come to the adverse attention of the local Sri Lankan authorities in his home area. In support of this evidence the applicant claims he was threatened with arrest under the PTA if he spoke out against the authorities. In particular he claims that he is still a person of interest to the authorities and that in 2018 a warrant was issued for his arrest.
In assessing the applicant’s claims the Tribunal must determine whether the warrant is genuine and its relevance to the claims. The Tribunal is acutely aware that it is unable to practically and meaningfully make enquiries with the Sri Lankan authorities to determine if the warrant is genuine in circumstances where the applicant fears harm from the Sri Lankan authorities.
The Tribunal is also aware that it must exercise caution in circumstances where an applicant produces new evidence for the first time at the hearing which did not form part of the original protection visa application. In this matter the applicant claims that he only recently became aware of the existence of the warrant.
The Tribunal has had regard to DFAT’s most recent country information report on Sri Lanka in relation to the prevalence of fraud. Although DFAT does not specifically refer to arrest warrants DFAT does assess that document fraud is prevalent in Sri Lanka.[2]
[2] DFAT Country Information Report Sri Lanka 23 May 2018 [5.54 – 5.57]
The Tribunal has also had regard to the following research carried out by the Immigration and Refugee Board of Canada (IRBC) in assessing the authenticity of the arrest warrant:
In correspondence dated 31 January 2002, the treasurer of the Forum for Human Dignity (FHD), a Colombo-based human rights organization, stated that arrest warrants are issued to individuals who fail to abide by a summons to appear in court on a designated date. The judge presiding over the court where such individuals are ordered to appear, either as witnesses or the accused, acts as the issuance authority for such warrants. Furthermore, in cases in which the wanted person is "absconding continually," an arrest warrant may be issued through the head of police in the area where the individual lives.
According to the FHD treasurer, arrest warrants contain the date of issue; the name of the individual whose arrest is sought; the name of the court responsible for issuing the warrant; the case number; and the reason for the warrant. In some cases the warrant also contains the next court date.
The treasurer further stated that arrest warrants are executed by the police and must be hand-delivered to the individual named in them. However, if the person is not present at the time the warrant is delivered, a notice ordering his or her surrender is "in practice" left by the police at the individual's place of residence. Such individuals may then surrender either to the court or to the police. If the latter, the police would produce the wanted person before the judge who originally issued the warrant. The judge would then decide whether to release the person on bail or order his or her detention.[3]
[3] Canada: Immigration and Refugee Board of Canada, Sri Lanka: Arrest warrant issuance procedures; whether a neighbour or family member can receive an arrest warrant on behalf of another person (2001-January 2002), 4 February 2002, LKA38201.E, available at: 1 May 2019]
The Tribunal was able to view some examples of what appeared to be genuine Sri Lankan arrest warrants and compare them to the document provided by the applicant.[4] The Tribunal finds that the warrant produced by the applicant appears consistent in appearance with those viewed by the Tribunal. As detailed above research undertaken by the IRBC also suggests that the police may “in practice” leave a copy at the individual’s place of residence.
[4] ‘Interpol after Lankanewsweb operator’, Daily News, 26 June 2010, CISDCDCAAB2076 Inside Story: Did Sri Lankan Govt. allow one of most wanted Russian cybercriminals to escape?’, Sri Lanka Guardian, 21 December 2017, CISEDB50AD8780

Having considered the applicant’s evidence and the country information the Tribunal is prepared to accept that the warrant produced by the applicant is genuine and that the police did leave a copy of the warrant with the applicant’s wife in Sri Lanka in July 2018 because he failed to attend at the court proceedings in Colombo.
In assessing the applicant’s claims the Tribunal has had regard to DFAT’s most recent Country Information Report on the Muslim community in Sri Lanka (23 May 2018). Relevant extracts of the report are set out in the annexure to this decision.
In summary DFAT states that while there have been incidents of property damage and personal violence, overall violence remains sporadic. DFAT assesses that Sri Lankan Muslims face a low risk of official and societal discrimination and a low risk of violence.
Firstly, the Tribunal notes that DFAT’s report only refers to the risk faced by “Sri Lankan Muslims” in general and it is important to have regard to the applicant’s particular profile in assessing his claims for protection. As stated above the Tribunal accepts that the applicant is a prominent Muslim leader in his community and that he has come to the adverse attention of the authorities who have issued a warrant for his arrest.
Secondly the Tribunal notes that since the publication of DFAT’s latest report Sri Lanka has experienced significant political instability and religious based violence which is relevant in assessing the applicant’s claims for protection.
In making this finding the Tribunal has also considered recent country information which confirms that there is a rise of Buddhist militancy in Sri Lanka. In particular the International Crisis Group made the following comments in March 2018:
The government has done very little to address either the underlying mistrust and misunderstandings between the two communities, or to rein in the small number of Buddhists who promote or use violence. Despite coming to power in January 2015 promising to end impunity for attacks on Muslims, the government has launched no proper investigations of past violence, and prosecuted no leaders of groups known to be involved in attacks on Muslims. Despite recent statements from the president, prime minister and other officials that the law will be strictly enforced and those engaging in violence will be arrested, key organisers of the ongoing violence remain free. Some of these have posted on social media information to help target Muslims for attack. Police, in a number of locations, have been credibly accused of siding with the mobs.[5]
[5] >
According to some recent media reports Sri Lanka is facing a concerning surge in anti-Muslim sentiment since 2009 when the civil war ended. In relation to the March 2018 riots the report confirms the police and its politicians have been accused of joining Sri Lanka’s anti-Muslim riots. Specifically it was reported:
Police and politicians backed by the country’s former strongman President Mahinda Rajapaksa joined anti-Muslim riots that rocked Sri Lanka’s Kandy district this month, according to witnesses, officials and CCTV footage reviewed by Reuters.
…..
The role of police and some local Buddhist politicians suggests the Sri Lankan government lost control of elements of its security forces, and that the violence was more than a spontaneous outbreak fueled by fringe Buddhist extremists and hate-speech spread on social media
…
Victims and witnesses, whose accounts were partly backed by CCTV footage seen by Reuters, described members of an elite paramilitary police unit, the Special Task Force (STF), assaulting Muslim cleric and leaders. Local STF commanders declined to comment.[6]
[6] >
On 26 October 2018, Sri Lankan President Maithripala Sirisena sacked Prime Minister Ranil Wickremesinghe and appointed former President Mahinda Rajapaksa in his place. However, Wickremesinghe refused to resign as prime minister, arguing that Sirisena’s decision was unconstitutional. Amid reports that Rajapaksa lacked majority support in parliament, on 28 October 2018 Sirisena suspended parliament and, on 9 November 2018, abruptly dissolved parliament and declared a snap election on 5 January 2019.
On 13 November 2018, Sri Lanka’s Supreme Court temporarily suspended the dissolution of parliament ahead of a final decision. Following the suspension of the dissolution order, Sri Lanka’s parliament reconvened, where two no confidence motions against Rajapaksa were passed despite the efforts of his supporters to disrupt proceedings. However, the results of these motions were not recognised by either Rajapaksa or Sirisena, both of whom claimed that they took place in violation of parliamentary procedure. In an interim judgement on Monday 3 December 2018, Sri Lanka’s Court of Appeal temporarily barred Rajapaksa from acting as prime minister while it heard a petition challenging his refusal to step down. Sri Lanka currently finds itself at a political impasse with no clear path forward to resolve the crisis. [7]
[7] DFAT Situational Update Sri Lanka Political Crisis 13 December 2018
Analysts have expressed pessimism about the impact of a Rajapaksa government on progress towards transitional justice and conflict resolution following Sri Lanka’s three decade long civil war.[8] However, there is only limited evidence to support this at present and it remains uncertain whether Rajapaksa will be able to emerge from the current political crisis as Prime Minister.
[8] ‘Sri Lanka’s Tamil are at imminent risk after Rajapaksa’s return’, Aljazeera, 29 October 2018, CXBB8A1DA39443
‘What happens if Rajapaksa heads Sri Lanka’s government?’ Aljazeera, 1 November 2018, CXBB8A1DA37739
Sri Lanka: Stepping Back from a Constitutional Crisis’, International Crisis Group (ICG), 31 October 2018, CXBB8A1DA37723
In October 2018 the International Crisis Group reported that ‘Sri Lanka’s Muslims, who suffered four days of violent attacks on mosques, businesses and homes by militant Buddhist nationalists in March, could also be at greater risk under a resurgent Rajapaksa administration’. The report noted that ‘a key suspect in the anti-Muslim violence was released on bail from prison on 29 October, following a concerted campaign by Sinhala nationalists with connections to the military and to Gotabaya Rajapaksa, Mahinda’s powerful brother, formerly in charge of the police and military’. The report said that two days earlier, Gotabaya had held a press conference to defend Wickremesinghe’s removal in the company of the Buddhist monk Ittakande Saddhatissa, who has been arrested multiple times for his involvement in violent protests.[9]
[9] Sri Lanka: Stepping Back from a Constitutional Crisis’, International Crisis Group (ICG), 31 October 2018, CXBB8A1DA37723
On 19 November 2018, police used tear gas and water cannons on monks from the Sinhalese nationalist BBS organisation protesting in front of the presidential secretariat in Colombo. The monks were protesting to demand the release of BBS leader Galagoda Aththe Gnanasara, who is currently servicing a six year prison sentence for contempt of court. Sirisena expressed his regret over the incident.[10]
[10] ‘President Sirisena Expresses Regret Over Tear Gas And Water Cannon Attack On Bodu Bala Sena Monks; Says He Was Unaware of Protest’, Asian Mirror, 19 November 2018, CXBB8A1DA39190
Against this background the Tribunal must determine if there is a real chance that the applicant will face serious harm if he returns to Sri Lanka in the reasonably foreseeable future.
Country information detailed below confirms that persons who are subject of an active arrest warrant will be placed on a government “stop-list” (watch-list). In particular DFAT reported that individuals on a ‘stop’ or ‘watch’ list will not be able to avoid ‘adverse attention’ from security forces.[11] More broadly, the report stated that, for returnees travelling on temporary travel documents, 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. The report said 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 procedures, regardless of ethnicity or religion.[12]
[11] ‘DFAT Country Information Report Sri Lanka’, Department of Foreign Affairs and Trade, 23 May 2018, CIS7B839411064, p.40
[12] ‘DFAT Country Information Report Sri Lanka’, Department of Foreign Affairs and Trade, 24 January 2017, CISEDB50AD105, p.41
A June 2017 UK Home Office report said that Colombo airport maintains a list of persons-of-interest to law enforcement agencies. Those on the ‘stop list’ are individuals who have committed serious crimes, have a warrant outstanding, or are perceived to be connected to terrorism. According to a UK Upper Tribunal decision, cited in the UK Home Office report, ‘individuals whose name appears on a ‘stop list’ will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant’. [13]
[13] Report of a Home Office Fact-Finding Mission Sri Lanka: treatment of Tamils and people who have a real or perceived association with the former Liberation Tigers of Tamil Eelam (LTTE)’, UK Home Office, 31 March 2017, OGD7C848D112, pp.9-10
The Tribunal finds that individuals, such as the applicant who are on a ‘stop list’ are likely to be stopped at Colombo airport and handed over to the relevant Sri Lankan authorities for detention and possible prosecution. Although the Tribunal notes that country information indicates that the treatment of detainees by law enforcement agencies has improved since the Sirisena Government came to power in 2015, individuals detained may experience torture or other mistreatment during interrogation. Prison conditions, while also improving, are currently considered to be poor in part due to old infrastructure and overcrowding.
The Tribunal notes however that the current political situation in Sri Lanka is extremely fluid with the possibility that Rajapaksa may emerge from the current political crisis as Prime Minister. Further, the April 2019 Easter Sunday terrorist attacks in which 253 people were killed by local Islamist extremists (National Thowheeth Jama’ath (NTJ)) has escalated sectarian tension to unprecedented levels. Recent media reports confirm that Muslims living in Sri Lanka now fear for their own safety in the wake of the attacks.[14]
[14] >
In the final week of April 2019 Sri Lanka's President, Maithripala Sirisena, said he was using an emergency law to ban face coverings in public, and that any piece of cloth or garment that covers the face of the wearer and “hinders identification” is outlawed. "The ban is to ensure national security... No one should obscure their faces to make identification difficult," a statement from his office said. The official press release from the president’s team did not contain the words, ‘niqab’ or ‘burqa’—face-covering veils traditionally worn by Muslim women—but critics have accused the state deliberately impinging on the religious freedom of Muslims. Some commentators noted that this appeared to be an attempt to pre-empt the manner in which Afghanistan has seen instances of militants using such attire to breach security cordons.[15] . It was reported that the Sri Lankan Government is reacting to racist rhetoric following the attacks.[16]
[15] 'Sri Lanka is banning face-veiling in the aftermath of Easter bombings', Financial Express (India), 30 April 2019, 20190430154021; 'Sri Lanka bans face coverings in wake of Easter attacks', France 24, 29 April 2019, 20190429170646; 'After attack, Sri Lanka uses emergency law to ban Muslim face coverings', Times of Israel, The, 29 April 2019, 20190430154443.
[16]
In the final week of April 2019 it was reported that the Prime Minister had said that the delay in enacting new counter terrorism laws had become a barrier to arrest the suspects of the Easter Sunday attack because “Sri Lanka does not have any laws to arrest individuals who join foreign terrorist organizations. Under the new Counter Terrorism Act of 2018 (CTA) (drafted to replace the Prevention of Terrorism Act) any person illegally influencing any community or the government of Sri Lanka or any other country becoming a threat to the territorial integrity could be considered as a criminal of Sri Lanka.[17] Other commentators have asserted that in fact the provisions of the existing PTA are enough to take action in that NTJ could be proscribed and its suspected members arrested under the PTA just as the LTTE formerly was and its members were.[18]
[17] 'NEW COUNTER TERRORISM LAWS TO BE ENACTED', News.lk, 29 April 2019, 20190429171626
[18] 'Was The Sri Lankan Law Adequate For Dealing With The Easter Bombers Before They Attacked?', Groundviews, 28 April 2019, 20190429122004.
On 29 April 2019 HRW asserted that since the 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 reported that nearly a thousand refugees and asylum seekers were displaced after landlords came under local pressure to evict them. Many have sought safety at nearby mosques or at the police station in Negombo, and that the authorities were forced to cease efforts to relocate them to suitable neighboring areas with proper facilities because of protests from local communities. Activists reported that on at least four occasions, busloads of frightened migrants, including many children, older people, and others with special needs, traveling to safer areas had to return to the overcrowded Negombo police station. Most of the primarily Pakistani and Afghan migrants are Muslim (some of whom belong to the Ahmadiyya sect), but they also include Christians. Ahmadiyya community members told the Associated Press that assailants had dragged them from tuk-tuks (auto rickshaws), hit them with sticks, or hurled stones. They said mobs had broken into homes. Their Christian landlords, police, or soldiers helped take them to the mosque for safety. It was also reported that about 30 members of the Iranian migrant community have been unable to leave their homes for fear of attack.[19]
[19] 'Sri Lanka: Refugees Threatened, Attacked', Human Rights Watch (HRW), 29 April 2019, 20190430153818
Reports also confirm that the Sri Lankan authorities have added extra layers of security at Sri Lanka’s international airports with the US Ambassador to Sri Lanka warning of more attacks. The warnings come despite the arrest of nearly 100 suspected Islamists in the wake of the bombings.[20]
[20] Sri Lanka bombings spark DFAT travel advice for Australians, warnings of more possible attacks 2 May 2019 ABC News >
To be clear, there is no suggestion that the applicant is a member of NTJ or had any involvement in the terrorist attacks. The applicant is however a high profile Muslim leader who has an active arrest warrant issued in his name. As stated above, DFAT confirm that individuals on a ‘stop’ or ‘watch’ list will not be able to avoid ‘adverse attention’ from security forces on return to Sri Lanka. Having regard to the applicant’s profile as an active Muslim leader the Tribunal is satisfied there is a real chance he will come to the adverse attention of the authorities on his return to Sri Lanka.
According to the Upper Tribunal decision cited in the June 2017 UK Home Office report, ‘for persons whose names appear on either the ‘watch list’ or ‘stop list’ the risk of ill-treatment following arrival in Sri Lanka will be as a result of arrest and detention by the authorities, rather than any prosecution itself for the crime or crimes for which the person is wanted’. The UK Home Office report itself said that Sri Lankan police reportedly often continue to resort to violence and excessive force, particularly when extracting confessions:
Such treatment is reported to be common in relation to criminal investigations, regardless of the nature of the suspected offence. However, the report noted that ‘many human rights reports on Sri Lanka use the term ‘torture’ to cover a very wide range of treatment ranging from forceful questioning or threats, through to the most severe forms of ill-treatment’.[21]
[21] Country Policy and Information Note Sri Lanka: Tamil separatism’, UK Home Office, June 2017, OG6E7028826, pp.10-11
This is similar to the findings of a December 2016 report by the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, which said that a ‘culture of torture’ exists in Sri Lankan law enforcement, with physical and mental coercion used against suspects being interviewed by both the Criminal Investigations Department (CID) in regular criminal investigations and by the Terrorism Investigation Division in investigations.[22]
[22] DFAT Country Information Report Sri Lanka’, Department of Foreign Affairs and Trade, 23 May 2018, CIS7B839411064, p.14
In the circumstances, the Tribunal accepts that there is a real chance the CID would question the applicant about his past and present circumstances, namely why he has departed Sri Lanka and his involvement in the Colombo court proceedings. Having considered the country information and the applicant’s profile as a prominent Muslim leader the Tribunal finds that there is real chance the CID will attempt to extract a confession and/or gain intelligence and threaten the applicant with prosecution under the PTA if he gives evidence against the Sri Lankan authorities in relation to the June 2014 anti-Muslim riots.
The Tribunal finds that there is a real chance the applicant would suffer serious harm from the police or CID because of his exposure to interrogation techniques that include torture. As the risk of harm feared is at the hands of the law enforcement (CID) the Tribunal finds the applicant cannot access state protection. Further the Tribunal considers relocation is not an option in this case when the authorities are the agents of harm.
In conclusion, having regard to applicant’s religious beliefs, his profile as an active Muslim leader who has expressed anti-government views and is the subject of an arrest warrant, there is a real chance that he will face serious harm from the authorities if he returns to Sri Lanka in the reasonably foreseeable future. The Tribunal finds that the applicant’s fear of persecution for the combined reasons of his religious beliefs and his political opinion is well-founded.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Christopher Smolicz
Member

DFAT Country Information Sri Lanka 23 May 2018
3.18 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 larger communities in the east in Ampara, Batticaloa and Trincomalee, and in the west in Mannar and Puttalam. The majority (98 per cent) of Muslims in Sri Lanka are Sunni. A small number of Shi’a, including members of the Bohra community from India, resides mostly in Colombo. The Malay community, largely comprising 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. The Urdu-speaking Memon community of Indian or Pakistani descent mostly lives in Colombo. Sri Lanka also hosts a small number of Muslims who follow the Sufi tradition. Muslim property rights fall under state law while sharia (Islamic) law and cultural practice apply to marriages. Although many Muslims work in agriculture and fisheries, many also work in business, industry and the civil service. In November 2017, some Muslim businesses were temporarily boycotted because of tensions between the Tamil and Muslim communities in Batticaloa.
3.19 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. In 2015, the All Ceylon Muslim (Makkal) Congress joined other anti-Rajapaksa parties to form the United National Front for Good Governance. The party holds five seats in parliament. The SLFP and the UNP both have Muslim members in parliament, including in ministerial-level positions.
3.20 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. Nationalist Buddhist groups such as the BBS, Sinha Le (English: Lion’s Blood), and Sinhala Ravaya (English: Sinhalese Roar) 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.
3.21 Minority Rights Group International reported 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, mostly against Muslim-owned businesses and mosques, and accompanied by anti-Muslim rhetoric from Sinhala Buddhist groups such as the BBS. In September 2017, a mob led by Buddhist monks reportedly belonging to the organisation Sinhalese Nationalist Front vandalised and attempted to storm a Colombo house where 31 Muslim Rohingya refugees were staying. Buddhist groups burned more than 70 Muslim shops and houses in Gintota, Southern Province, in November 2017. The Muslim Council of Sri Lanka wrote to Prime Minister Wickremesinghe in May and September 2017 urging the government to take action against the hate speech and violence targeting the Muslim community. President Sirisena has committed to investigate anti-Muslim hate crimes and bring perpetrators to justice, although local sources claim that for political reasons authorities are reluctant to address violence perpetrated by religious clerics due to 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 of harassment or property damage by Buddhist monks.
3.22 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 Sinhalese Buddhist and minority Muslim communities in Kandy District, Central Province. Despite the deployment of high numbers of military and police, several arrests and extended curfews, violence continued in several towns around Kandy until 7 March, and four people (two Muslims and two Sinhalese) were killed and dozens injured. Police arrested the leader of the Buddhist extremist group Mahason Balakaya (English: Strong Ghost Regiment), Amith Weerasinghe, in relation to the violence. The events in Kandy represented the largest violent incident between Buddhist and Muslim communities since June 2014 when Galagoda Aththe Gnanasara, General Secretary of BBS, delivered a speech that many blamed for inciting riots in Aluthgama that lasted two days; Police arrested and subsequently released Gnanasara on several occasions. The events in Kandy followed a smaller incident on 27 February 2018 whereby Buddhist nationalist groups perpetrated arson attacks against Muslim-owned residences, shops and a mosque in Ampara, Eastern Province. Rumours that a Muslim restaurant was mixing ‘sterilisation drugs’ in its food to make Sinhalese women infertile triggered the attacks. Social media aggravated both the Kandy and Ampara incidents.
3.23 In 2016 and 2017, local groups reported the construction of Buddhist shrines in the north and east in Hindu and Muslim areas with few, if any, Buddhist residents. In some locations in the north, the military was reportedly involved. In 2016, Sinha Le reportedly orchestrated protests against the construction of a mosque in Kandy.
3.24 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. While there have been incidents of property damage and personal violence, overall violence remains sporadic. DFAT assesses that Sri Lankan Muslims face a low risk of official and societal discrimination and a low risk of violence.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

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1616460 (Refugee) [2019] AATA 5754

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[2019] AATA 5754

6 May 2019

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