1619461 (Refugee)

[2019] AATA 789

1619461 (Refugee) [2019] AATA 789 (4 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1619461

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Nicole Burns

DATE:4 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 04 January 2019 at 1:19pm

CATCHWORDS

REFUGEE – Protection visa – Sri Lanka – mixed and interreligious marriage – Muslim – Buddhist –religiously based persecution by Bodu Bala Sena – credible witness – decision under review remitted

LEGISLATION

Migration Act 1958, ss.36, 65. 91R
Migration Regulations 1994, Schedule 2

CASES

MIMA v Respondents S152/2003 (2004) 222 CLR 1

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 9 September 2014 and the delegate refused to grant the visas on 2 November 2016.

3. The first and second named applicants appeared before the Tribunal on 7 October 2018 and 11 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhalese and English languages.

4. The applicants were represented in relation to the review by their registered migration agent, who attended the hearings.

5. The issue in this case is whether the applicants are owed protection obligations by Australia as refugees or if the complementary protection provisions apply.  The criteria for a protection visa are attached to this decision record.  For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

6. The Tribunal accepts the applicants are Sri Lankan nationals for the purposes of assessing their protection claims.  The first and second named applicants arrived in Australia [In] February 2013 holding [temporary] visas and Sri Lankan passports.  Their [child] was born in Australia on [date] to Sri Lankan parents and therefore is a Sri Lankan national.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The first named applicant (hereafter the applicant) claims to fear serious harm from his wife’s [uncle] [Mr A] on return to Sri Lanka because of their interreligious marriage: that is he is a Muslim and his wife is a (Sinhalese) Buddhist.  He claims [Mr A] is politically connected with the former president, Mahinda Rajapaksa, and is [connected to] a Buddhist extremist group called the Bodu Bala Sena (BBS). 

8. From the outset, the Tribunal records that it found the applicant and the second named credible witnesses at the hearings.  Their oral evidence was spontaneous, detailed and overall consistent with each other’s oral evidence and their written claims before the Department of Immigration and Tribunal[1] as well as the information contained in the representative’s detailed written submission[2] and a letter of support from the second named applicant’s brother.[3] The oral evidence was also supported by a copy of the applicant’s marriage certificate and a letter from the applicant’s parents and his wife’s brother. The Tribunal therefore accepts the applicant’s oral evidence about the inception and development of their relationship in Sri Lanka, their families’ and relatives’ reactions to their union, including harm and threats, and their fears upon returning to Sri Lanka now, summarised as follows.

   [1] The applicant provided a statutory declaration to the Tribunal dated 4 October 2018.

   [2] Dated 4 October 2018.

   [3] Dated 3 October 2018.

   a.The applicant first met his wife at an [education] course in Colombo in 2004 and their relationship began in 2005, kept secret from their respective families.  The applicant lived with his parents in Colombo during this period and worked [for his employer].  His wife lived with her parents and her brother in Colombo whilst studying, then she moved back to  [Town 1] with her family for six months, before returning to work in Colombo [whilst] residing in a boarding house there.

   b.In March 2009 someone who knew about their relationship advised the applicant’s parents, who in turn telephoned the second named applicant’s parents in [Town 1], telling them the applicants were not compatible and to put an end to the relationship.  On hearing this news the second named applicant’s parents immediately came to Colombo and took their daughter back home with them to [Town 1].  Her parents scolded her for having a relationship with a Muslim and her father beat her and locked her in her room for a few days.  The second named applicant said her parents objected to the fact that her now husband was Muslim because they were ‘strong’ Buddhists and of a high Sinhalese caste. 

   c.The applicants told their parents they had separated; however, they continued with their relationship, primarily through telephone calls (via the second named applicant’s cousin).  The first time the second named applicant saw the applicant after their parents had discovered their relationship was on their wedding day at a registry office in Colombo [in] December 2009, unbeknownst to their respective families.  The applicant’s three friends from [work] attended as witnesses. 

   d.The applicant went to the United Kingdom (UK) to study a few days after his wedding and his wife returned to her parents’ house in [Town 1].  She joined him in the UK in October 2010, as the holder of a dependent spouse student visa, having told her parents that she was studying in the UK.  The applicant and second named applicant lived together in the UK until June 2012 when they both returned to Sri Lanka because the applicant’s father had had a [medical condition].  The parents of both the applicant and his wife thought they were studying separately in the UK. 

   e.The applicant’s wife’s parents tried (unsuccessfully) to get her married in the period before she went to the UK.

   f.On return to Sri Lanka in June 2012, the applicant returned to his parents’ home in Colombo and his wife returned to her parents’ home in [Town 1].  His wife told her mother that they had married in December 2009 and had continued their relationship: her mother was upset, because they had married without her knowledge and because the applicant was Muslim.  A few days later the applicant’s mother told the second named applicant’s father who was very upset and told her she had disgraced their family.

   g.The applicant first met his wife’s parents and [brother] at a lunch at their house in [Town 1] [in] August 2012.   Whilst there [Mr A], who is [a] member of the BBS, came to the house with three men, and verbally and physically assaulted the applicant for marrying his niece.  He threatened to kill the applicant if they remained married.   [Mr A] also threatened the second named applicant’s parents, telling them to stop the marriage.  Her father promised he would. 

   h.[Mr A] regularly visited the second named applicant’s house or would telephone regularly, asking if their marriage had ended. 

   i.After being assaulted and threatened by  [Mr A] in August 2012, the applicant returned to Colombo and thereafter laid low, staying at his parents’ house and friends’ houses, whilst arranging his  [temporary] visa to Australia for him and his wife.  His wife’s father reluctantly agreed to support their trip to Australia, given concerns about his daughter’s safety if they stayed.

   j.The applicant and his wife left Sri Lanka in February 2013 with the plan for the applicant to [live] in Australia. 

   k.In around June 2013 [Mr A] and some other men visited the applicant’s parents’ house in Colombo, asked his whereabouts, threatened the applicant (via them) and damaged some furniture.

   l.When the applicant was in Australia, his mother told him she received a phone call from [the] applicant’s wife’s [cousin] and a member of [an organisation], threatening to kill the applicant if he returns to Sri Lanka because of his marriage to the second named applicant.

   m.The applicant’s parents received a number of threatening phone calls from [Mr A] in 2013, after the applicant and second named applicant had left the country, which prompted the applicant’s mother to change her caller ID on her phone.

   n.[In] February 2018, after the national election results, [Mr A] visited the applicant’s wife’s parents’ home in [Town 1], and was verbally abusive to her father.  He was upset about their marriage and had heard they had had a (Muslim) child.   [Mr A] threatened to harm them if they return and Mahinda Rajapaksa came to power.  The next day, the second named applicant’s father died of a [medical condition] the second named applicant told the Tribunal she believes it was caused by stress from [Mr A]. 

   o.[Mr A] continues to visit the second named applicant’s mother and brother and threatens to somehow get the applicant and second named applicant to return to Sri Lanka where he will kill them.  The last time he visited them was around one and a half months prior to the second hearing.

9. As discussed at hearing, the Tribunal was concerned with the fact that  [Mr A] was unable to locate the applicant in the six months he remained in Sri Lanka after he assaulted him and threatened to kill him (if he did not end his marriage) in August 2012.  At hearing the applicant said he laid low during this period, staying with friends as well as his parents.  In her submission to the Tribunal, the representative submitted that the second named applicant’s father was also acting as a kind of protective buffer during this period, promising  [Mr A] that he would end the marriage, whilst at the same time helping his daughter (and the applicant) make the necessary arrangements to flee Sri Lanka.  Given the Tribunal found the applicants credible, it accepts their explanations as to why [Mr A] was unable to locate the applicant (and seriously harm him as allegedly he wished to do) during this period. 

10. The Tribunal accepts the applicant’s claim that his and his wife’s parents were furious when they first discovered their relationship, and when they discovered their relationship had continued and they had married without their knowledge in 2012.  It accepts both applicants’ parents were verbally abusive to the applicants, and in the second named applicant’s case, her father beat her and locked her in her room for a few days, which is serious harm.  However her father has since died and on the applicants’ own evidence at hearing, the applicant’s mother and his wife’s mother are now more accepting of their marriage, especially after their [child] was born in [year deleted].  The applicant told the Tribunal that he has regular telephone contact with his mother (two times a week) and his wife does with her mother once a week.  She also has more contact with her brother since her father – who was never happy about their marriage – died in early 2018.  Her brother’s support is reflected in his letter provided to the Tribunal.  The applicant said his father is still not that happy with their marriage, but did not indicate that his father had threatened him or would seek to seriously harm the applicant (or his wife) on return to Sri Lanka because of his son’s marriage to a Sinhalese Buddhist.  Given these considerations, the Tribunal finds remote the chance the applicant would face serious harm on return to Sri Lanka from his or his wife’s immediate family members because of their interreligious marriage.

11. The Tribunal has gone on to consider if the applicant faces a real chance of serious harm on return to Sri Lanka from  [Mr A] given his interreligious marriage to  [Mr A’s] niece.

12. It is submitted that the applicant faces a well-founded fear of persecution on return to Sri Lanka because of his Muslim religion and because he belongs to the following particular social groups:

    ·Members or the children of members of interreligious marriages

    ·Members or the children of members of mixed-race marriages

13. For the reasons that follow, the Tribunal finds the applicant faces a real chance of serious harm from [Mr A] and his associates in Sri Lanka for the combined reasons of his Muslim religion and interreligious marriage. It has therefore been unnecessary to consider the other grounds advanced. 

14. The Tribunal has accepted the applicant’s claims that [Mr A] physically attacked him and verbally abused and threatened him at his in-laws’ house in August 2012 after [Mr A] discovered the applicant – a Muslim – had married his niece, who is a Buddhist.  It has accepted these threats have continued via the applicant’s parents and parents-in-law, including via his mother-in-law after his wife’s father died in early 2018, which is recent.  At hearing the Tribunal asked the applicant and his wife why they think [Mr A] had (and has) an ongoing adverse interest in them after they left Sri Lanka.  The applicant said because of  [Mr A’s] fury at what they have done, against his beliefs and tradition with the backdrop of a (perceived) threat of Muslim expansion in Sri Lanka, he continues to have an adverse interest in them.  He and the second named applicant said they feel that [Mr A’s] anger towards them has worsened since the birth of their [child], who is considered Muslim. 

15. As discussed at hearing, there are no official data records about the incidence or nature of interfaith/interreligious marriages in Sri Lanka, but according to the Department of Foreign Affairs and Trade (DFAT) in their most recent country information report on Sri Lanka, anecdotal information suggests they are rare.  DFAT further state as follows:

    Sri Lankan Muslims seem more likely to marry Christians than members of other faiths. A non-Muslim wishing to marry a Muslim must convert to Islam and raise any children as Muslim. DFAT is aware of reports that such conversions are sometimes symbolic. The BBS has in the past raised concerns over marriages of Buddhist women to Muslim men, couched in terms of Muslim expansionism within Sri Lanka. Within the Muslim community, social stigmas attach to those who marry outside the faith. Marriage between Christians and Hindus is more common than any other kind of interfaith marriage in Sri Lanka, and Christians and Hindus co-exist peacefully in the north. Sinhalese Buddhists sometimes marry Christians. DFAT is not aware of any discrimination against children of mixed marriages. State, rather than religious, law governs most mixed marriages.[4]

    [4] DFAT, Country Information Report Sri Lanka, 23 May 2018 at 3.30.

16. Country information, although limited on this topic, indicates that the situation of people in mixed marriages in Sri Lanka largely depends on family and individual circumstances.  According to the UK Home Office, although families have been known to express disapproval of such unions, mixed marriages have not tended to occasion harm to either the married parents or their children.[5]  This is reflected in the most recent country information report on Sri Lanka from DFAT, as set out above.  Such country information indicates to the Tribunal that in some cases, the couple can be subject to social isolation and ostracism, though not necessarily persecution or significant harm. 

    [5] UK Home Office, Country of Origin Information Report: Sri Lanka, 18 February 2010 at 20.15.

17. In the applicant’s case, however, the Tribunal accepts that the perpetrator of the feared harm – [Mr A] – is [a] member of the BBS with ties to the former president Mahinda Rajapaksa.  Country information indicates that militant Buddhist groups such as the BBS enjoyed tacit support of the state under Mahinda Rajapaksa’s presidency – especially between 2009 and 2015 – and that his brother and former defence minister, Gotabaya Rajapaksa, is considered close to the BBS monks[6]. 

    [6] Sonia Sarkar, The Telegraph, online edition, ‘Sinhalese monks unleash a new brand of nationalism in Sri Lanka’, 25 November 018,

18. Country information about the rise in anti-Muslim sentiment, and in some cases violence towards Muslims, including that referenced by the representative, indicates that this raises the applicant’s risk profile considerably.  For example, DFAT in their most recent country information report state that:

    DFAT is aware of reports that the former Rajapaksa government sanctioned religious discrimination, including by supporting the extremist Buddhist group Bodu Bala Sena (BBS, English: Buddhist Power Force). DFAT is aware of reports from 2017 of local authorities seeking to close places of worship, questioning the status of religious registration, and inconsistently applying the law against perpetrators of discrimination and religious violence. Some local government officials and police continue to refer to a 2008 circular of the Ministry of Buddha Sasana and Religious Affairs, revoked in 2015, which states that all new constructions of places of worship require the approval of the Ministry. DFAT is aware of reports of children being denied admission to schools because of their religious background, and of children being forced to observe Buddhist rituals in state schools.[7]

    [7] DFAT, Country Information Report Sri Lanka, 23 May 2018 at 3.16.

19. The DFAT report also discusses the rise of religious tensions between Muslims and the Sinhalese Buddhist majority have risen since the end of the conflict, with nationalist Buddhist groups such as the BBS stoking conflict, as follows.

    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.

    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.

    ...

    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.

    ...

    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.[8]

    [8] DFAT, Country Information Report Sri Lanka, 23 May 2018 at 3.20 – 3.22; and 3.24.

1. Country information from other sources echo DFAT’s concerns, with reports that extremist Sinhalese Buddhist 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.[9]  The Tribunal notes in this regard a number of clearly anti-Muslim Facebook posts made by [Mr A] which the representative has provided.

   [9] International Religious Freedom Report for 2017 – Sri Lanka’, US Department of State, 29 May 2018, p.1; ‘Sri Lanka arrest five over anti-religious violence’, Reuters, 11 June 2017, ‘Sri Lanka sees emerging tensions between Buddhists and Muslims’, Nikkei Asian Review, 1 December 2017,  ‘Fear grips Muslims in Sri Lanka’s Ginthota after attack’, Aljazeera, 24 November 2017.

2. Although DFAT assess that Sri Lankan Muslims face a low risk of official and societal discrimination and a low risk of violence (as set out above), the applicant in this case is personally known to (and has been threatened and harmed by) [a] member of the BBS, with links to the former president.   [Mr A] has persistently shown he has a personal vendetta against the applicant – a Muslim – who has married his (Sinhalese Buddhist) niece.  Given country information that indicates the use of anti-Muslim sentiment and violence against Muslims in Sri Lanka, combined with the fact that [Mr A] has harmed and threatened the applicant in the past and threats of serious harm continue via family members in Sri Lanka, the Tribunal finds the applicant faces a real chance of serious harm from [Mr A] or his associates on return to Sri Lanka in the foreseeable future.  The Tribunal finds that there is a real chance that the applicant would suffer serious harm as contemplated by ss.91R(1)(b) and 91R(2) of the Act at the hands of [Mr A], who is [a] BBS member, on return to Sri Lanka in the reasonably foreseeable future.  Further, the Tribunal finds that such serious harm would involve systematic and discriminatory conduct and would be for the essential and significant reason of the applicant’s Muslim religion and interreligious marriage to  [Mr A’s] niece.  Accordingly, the Tribunal finds that the applicant has a well-founded fear of persecution in Sri Lanka for a Convention reason.

3. The Tribunal notes there were significant political developments in Sri Lanka after the second hearing.  Specifically on 26 October 2018, Sri Lankan President Maithripala Sirisena sacked Prime Minister Ranil Wickremesinghe and replaced him with Mahinda Rajapaksa, a former president and recent political opponent, in a move that was widely condemned as in breach of the country’s constitution.[10]  This plunged Sri Lanka into a political crisis.  On 16 November 2018 the Tribunal received an updated submission from the representative given such political developments since her previous submission,[11] which included a number of news articles about Sri Lanka’s unfolding political crisis.  In her submission, the representative argued, among other things, that such country information needs to be taken into account in light of the applicant’s claims regarding the risk of both targeted and generalised violence (as a Muslim, and as a Muslim married to a Buddhist whose uncle is [a] BBS member).   She submitted that the current situation indicates the applicant would face religiously-based persecution; that Sri Lanka has experienced heightened levels of anti‑Muslim sentiment since the national elections in February 2018; and that the shift in power to the likes of Mahinda Rajapaksa favours those individuals and parties likely to encourage anti‑Muslim sentiment.  Reference is also made to country information which shows Mahinda Rajapaksa and his brother’s, Gotabaya (the former defence secretary), links to the BBS. 

   [10] ‘Sacked Sri Lanka PM given ‘deadline’ to vacate residence’, Aljazeera, 28 October 2018 

   [11] Dated 4 October 2018

4. On 16 December 2018 after months of turmoil and legal challenges to the president’s move to sack Prime Minister Ranil Wickremesinghe and replace him with Mahinda Rajapaksa (among other things), Ranil Wickremesinghe was reinstated as Prime Minister of Sri Lanka and Mahinda Rajapaksa has resigned after Sri Lanka’s Supreme Court ruled that President Sirisena had acted illegally in November 2018 by dissolving parliament and calling snap polls.[12]  This has, at least for now, restored some stability to Sri Lanka’s political crisis.  However this does not necessarily mean that Rajapaksa and his supporters have gone away, or that their links to nationalist groups such as the BBS have ceased. 

   Availability of state protection

   [12] BBC News Asia, ‘Ranil Wickremesinghe: Sri Lanka reinstates ousted prime minister’, 16 December 2018,

5. In this case, the harm that the applicant fears from [Mr A] and the BBS is from non-state agents and the applicant claims that the Sri Lankan authorities will not protect him from that harm because of [Mr A] and the BBS links to elements of the government and the fact they often act with impunity.   

6. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the state is unable to provide adequate protection against the harm. Where the state is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the state is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the state is willing but not able to provide protection, the fact that the authorities, including the police and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the state is withheld or denied for a Convention reason.

7. In her written submission[13] to the Tribunal, the representative submits that the applicant will be unable to avail himself of effective protection measures from state authorities and law enforcement bodies throughout Sri Lanka.  Specifically she submits that state authorities have been repeatedly reported as being ineffectual in their efforts to protect Muslims from sectarian violence, referring to country information from a variety of sources.  Specific reference is made to the following extract from the US Department of State Report on International Religious Freedom:

   According to religious and civil society groups, local government actors often ignored – or were reportedly complicit in – abuses of and illegal restrictions on religious freedom.  Victims said government actors and police at the local (village, division, and provincial) level responded minimally or not at all to numerous reported incidents of religiously motivated violence against Muslims and Christian minorities[14].

   ...

   There were some reports of government officials being complicit in physical attacks on religious minorities and their places of worship[15].

   [13] Dated 4 October 2018

   [14] US Department of State, 2017 Report on International Religious Freedom – Sri Lanka, p4

   [15] Ibid p.1

8. Country information indicates that there are general measures of state protection in place in Sri Lanka and generally functioning laws.  DFAT state that 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 linguistic barriers and by a lack of resources’.[16]

   [16] DFAT, Country Information Report Sri Lanka, 23 May 2018 at 5.1

9. Nonetheless, with respect to the government’s efforts to address hate speech and violence against Muslims by groups such as the BBS, DFAT state that:

   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.[17]

   [17] DFAT, Country Information Report Sri Lanka, 23 May 2018 at 3.21

10. Country information indicates that BBS is the most active extremist Sinhalese nationalist group and has engaged in acts of violence and hate speech against minorities with relative impunity.  After the change of government in 2015 BBS activities reportedly declined; however the group re-emerged in 2016.  Although the president and prime minister have condemned attacks on minorities,[18] there are reports from a variety of credible sources that the BBS – along with other similar groups – has been emboldened by the failure of authorities to prosecute those responsible.[19] Although BBS leader Galagoda Aththe Gnanasara has faced accusations relating to anti-Muslim violence, hate speech and defaming the Koran,[20] the group has been able to continue his activities. ^[21] He was sentenced to six years in prison in August 2018;[22] however, this was for contempt of court charges and not related to his targeting of minorities.[23]

    [18] ‘BBS Fighting for Non-Existing Political Space Still’, Sunday Leader, 11 June 2017, CXC9040669067

    [19] ‘Buddhist Militancy Rises Again in Sri Lanka – OpEd’, International Crisis Group (ICG), 12 March 2018,‘BBS – farce or tragedy or both’, Sri Lanka Guardian, 26 May 2017, ‘Mounting Religious Violence in Sri Lanka’, The Diplomat, 28 June 2017,

    [20] ‘Buddhist monk in Sri Lanka gets six years’ jail in contempt case’, Reuters, 8 August 2018,

    [21] ‘Update: Gnanasara Thera arrested, released’, Daily Mirror, 21 June 2017;‘General Secretary of Bodu Bala Sena arrested and released on bail’, Asian Tribune, 27 May 2015; ‘Galagoda Aththe Gnanasara three released on bail’, Daily News Sri Lanka, 23 February 2016; ‘Court warns to issue arrest warrant for Bodu Bala Sena leader for failing to appear’, Colombo Page, 12 June 2017; ‘Sri Lanka police looking to arrest extremist Buddhist monk’, Colombo Page, 25 May 2017,

    [22] ‘Buddhist monk in Sri Lanka gets six years’ jail in contempt case’, Reuters, 8 August 2018,

    [23] ‘Buddhist Extremism: Is Monk Gnanasara’s Jailing a Sign of Sri Lankan Enlightenment”’ South China Morning Post, 24 June 2018,

11. Furthermore, country information indicates that whilst police made some arrests following incidents targeting Muslims, instigators and organisers of the violence typically face few consequences.[24] The BBS and other groups have disseminated hate speech and anti‑Muslim propaganda despite laws prohibiting it.[25] 

    [24] Buddhist Militancy Rises Again in Sri Lanka – OpEd’, International Crisis Group (ICG), 12 March 2018

    [25] Confronting intolerance: Continued violations against religious minorities in Sri Lanka’, Minority Rights Group International, 10 December 2016, pp. 3,7,15,20;

12. On the basis of this country information, in particular the lack of real action against extremist Sinhalese Buddhist groups such as the BBS – the very group the applicant’s wife’s uncle is [a] member of – the Tribunal is not satisfied that the state of Sri Lanka can meet the level of protection which citizens are entitled to expect as discussed in MIMA v Respondents S152/2003 (2004) 222 CLR 1. It follows that the Tribunal finds that the applicant faces a real chance of persecution for reasons of his Muslim religion and interreligious marriage if he returns to Sri Lanka, now or in the reasonably foreseeable future.

    Relocation

13. With respect to whether or not the applicant could relocate to another part of Sri Lanka to avoid the harm he fears from [Mr A] and his associates, it has been submitted that this is not an option in the applicant’s case for a number of reasons.  This includes because anti‑Muslim sentiment exists throughout the country; there is nowhere the applicant could relocate to avoid the risk of generalised sectarian violence; and with respect to [Mr A] he has shown persistent and methodical attempts to locate the applicant in the past. 

14. For reasons the above, the Tribunal accepts the claims pertaining to [Mr A]’s persistent attempts to threaten and keep an eye on the applicant, with a clear indication of an increase in his anger at their union since the birth of their (Muslim) [child].  Combined with his unambiguous anti-Muslim views, as evidenced through his Facebook posts [involvement] with the BBS who have a clear anti-Muslim agenda, the Tribunal is satisfied that [Mr A] and/or his associates would have the will and means to locate the applicant wherever he attempts to relocate to in Sri Lanka, eventually.  Accordingly the Tribunal is not satisfied that relocation is a safe option in the applicant’s case. 

15. For these reasons, the Tribunal finds the applicant faces a well-founded fear of persecution on return to Sri Lanka from [Mr A] and his associates as a Muslim and on the basis of his marriage to a Buddhist now or in the reasonably foreseeable future. 

    CONCLUSION

16. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore the first named applicant satisfies the criterion set out in s.36(2)(a).

17. The Tribunal is satisfied that the second named applicant is the first named applicant’s wife (based on a copy of their marriage certificate), that the third named applicant is the first named applicant’s [child] (based on a copy of [the] birth certificate) and that they are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa, provided the criterion in s.36(2)(b)(ii) is met.

    DECISION

18. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

    (ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Nicole Burns
    Member

    
    

    ATTACHMENT - 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 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

    Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

    If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

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

    
    

‘Sri Lanka - Country Report on Human Rights Practices 2015’, US Department of State, 13 April 2016, p. 36;
‘Human Rights in 2016 Aspiring For More’, Groundviews, 9 December 2016.