1714957 (Refugee)

[2019] AATA 6727

1714957 (Refugee) [2019] AATA 6727 (23 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1714957

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Sean Baker

DATE:23 December 2019

PLACE OF DECISION:  Melbourne

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 23 December 2019 at 2:45pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Circuit Court remittal – religion – Muslim – previous relationship with Christian girl – not converted to Christianity – particular social group – Muslim male failed asylum seeker returnee who has lived in Australia for some years – political opinion – involvement in the Sri Lankan Muslim Congress party (SLMC) – received threats in the past – most recent country information – anti-Muslim sentiments – increasing risk of official discrimination – risk of torture or other serious mistreatment at the hands of local authorities – Sri Lankan Buddhist ethno-nationalist extremists – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), 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

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 applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2.    The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 25 November 2012 and the delegate refused to grant the visa on 28 March 2014.

3.    The Tribunal, differently constituted, affirmed the decision. That decision was appealed to the Federal Circuit Court and the Court, by consent, remitted the matter to the Tribunal on the basis that there was a concession that the first Tribunal decision was affected by jurisdictional error on the basis that the first Tribunal failed to consider the applicant's claims regarding his Muslim religion, namely whether the applicant had abandoned those claims, in light of his new claim that he would convert to Christianity

4.    The applicant appeared before me on 9 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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).

7.    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.

8. 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’).

9.    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.

1. The issue in this case is whether the applicant has a well-founded fear of persecution for a Convention reason or, if not, whether there is a real risk he will suffer significant harm if returned to Sri Lanka. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Identity and nationality

1. The applicant provided a copy of his Sri Lankan Birth Certificate to the Department. On the basis of this information and without any information to the contrary, I accept that the applicant is who he claims to be and is a national of Sri Lanka.

2. There is no information before me to support a finding that the applicant has a right to enter and reside in any third country and I find he does not have such a right.

Claims

1. The applicant’s claims for protection made to the Department centred on his faith, ethnicity, and his and his family’s political involvement.

2. The applicant and his family are Tamil Muslims and are involved in the local mosque. They live in [City 1], in the North of Sri Lanka, an area that has anti-Muslim political campaigns.

3. They have been involved in the Sri Lankan Muslim Congress party (SLMC). The applicant’s Uncle was the chairman of the local branch and his brother-in-law was a local committee member.

4. In 2010, during the election period, Eelam People's Democratic Party (EPDP) members threatened the applicant and others involved in the SLMC against campaigning. In March 2010 during the parliamentary elections however, the applicant assisted his brother-in-law in campaigning for the SLMC. His brother-in-law stood in the election.

5. During rallies outside the local SLMC building, the police would disperse the gatherings and detain those who attended at the local station for a few hours. This occurred four or five times in the weeks prior to the election.

6. The applicant’s brother-in-law was detained by the authorities many times but was released because of his SLMC backing.

7. After the election, of the three positions in his area, two were won by SLMC members and one by the United People's Freedom Alliance (UPFA) member. The applicant's brother-in-law was not successful.

8. Following the election, the applicant's brother-in-law was targeted and detained by unidentified men, before escaping. The applicant believes this was due to his brother-in-law no longer having protection from the SLMC as he was not successful in the elections.

9. After the election, the SLMC building was burnt down by EPDP supporters. The fire spread and damaged the applicant's home, which was [near] the SLMC building. The applicant's home was later demolished and rebuilt.

10. After the applicant’s home was burnt down his mother, brother and uncle went to the Police station to make a report of the incident. The Police refused to accept the report. They said that during the elections these things are normal and they can't take the report or press charges at this time.

11. They then went to the office of the Human Rights Commission but were told that because there was no Police report they could do nothing

12. The applicant was involved in a rally [in] April 2012 at [City 1] town mosque that was protesting an attack on a mosque in Dambulla, on 19 April 2012 by Buddhists. The applicant claims these protests occurred throughout Sri Lanka.

13. While at the protest he was distributing flyers that explained the reasons for the protest.

14. The rally, although sanctioned by the police, was later dispersed violently by the police. The applicant was not one of the injured. The applicant returned to his sister's home following the incident.

15. Four persons involved in the rally were detained by police: three of whom were Hindu males that assisted the rally in providing [equipment], and a Muslim spokesperson that announced the rally. The three Hindus were taken the day following the protest and held overnight before being released. The Muslim spokesman was detained that night and remains missing.

16. Following the protest, the applicant stayed at his sister's home, while officers from the Criminal Investigations Department (CID) came to his home looking for him. The CID officers were visiting all persons involved in the protest. He believes he was identified by the Sri Lankan authorities through handing out flyers and being at the front of the rally.

17. Two days later, the CID brought his mother and younger brother for questioning at the local police station. Once questioned about the applicant they returned home, after which his mother informed the applicant to not return from his sister's home. The applicant stayed at his sister's home until his departure in June 2012.

18. His mother saw and was approached by unidentified men frequently, thought to be CID officers, around his home from April until June 2012.

19. Since his departure the CID came to his home in Sri Lanka enquiring about the applicant's location in June 2012 and mid-2013.

20. His brother-in-law has continued to experience problems; however he is unable to provide further details due to not being in contact with the brother-in-law. His brother-in-law remains a public figure in Sri Lanka.

21. His older brother suggested the applicant should travel to Australia to avoid the unidentified men.

22. The applicant believes he will be detained by the Sri Lankan authorities or unidentified men if returned to Sri Lanka due to the above reasons.

23. On 15 June 2015 the applicant’s representative provided a submission which stated that the applicant relied on all previous submissions, and his oral evidence to the Department

24. The submission reiterated that the applicant wished to rely on all previous submissions inclusive of

    a.The statutory declaration dated 24 November 2012.

    b.The protection visa interview held on 5 August 2013.

    c.Document’s submitted to the Department on 6 December 2013 (see ff. 2-11 of the department file)

25. The submission also addresses the delegate’s findings that the applicant was not detained in 2010 and that the applicant’s brother-in-law was not detained for 2 days following the election as these claims were not raised earlier. The representative submits both were discussed in the IMA entry interview.

26. Further that the delegate references only one article regarding the nature of the Dambulla Mosque rally indicating that such protests are peaceful. The representative submits that many such protests are not peaceful and provides further articles that support violence against Tamil Muslims is widespread.

27. In addition to previous claims the applicant also fears persecution because of

    a.his religion and ethnicity –  being Muslim and a Tamil

    b.His illegal departure from Sri Lanka – punishable by detention

    c.Failed Asylum seeker returning to Sri Lanka or Failed Tamil asylum seekers returning to Sri Lanka

    d.His time spent in Australia seeking asylum – Seen as a likely association or support for the Liberation Tigers of Tamil Eelam (LTTE)

28. The decision was affirmed by the first Tribunal.

29. This case was remitted from the Court because of evidence that the applicant gave before the first tribunal and because of the way that that tribunal dealt with that evidence. It is helpful therefore to detail that evidence

30. Before the previous Tribunal the applicant claimed that he had been in a relationship with a Christian girl who lived in [City 1], Sri Lanka. He said the relationship, by telephone, had been ongoing for the last 3 years (which he later corrected to 2 years), which had begun over the telephone, and because of this he was not on good terms with his family. His girlfriend is also Tamil.

31. The applicant claimed that he feared his family because he was going to marry the girl and he would convert to Christianity, and his family and Muslim society in general will not let him take part in any cultural events and will isolate him and he will be separated from his family. His brother threatened his girlfriend over the phone and asked her to stop their affair; it will be difficult for her as well.

32. The decision was remitted to the Tribunal on the basis that the previous Tribunal did not address the applicant’s fear of converting to Christianity.

33. The applicant did not provide any further information prior to the hearing before me.

The hearing

1. Before me the applicant gave evidence that he had broken up with his girlfriend and his conversion to Christianity had not taken place. He said that he had reconciled with his family and he no longer had any concerns because of that relationship or because of his previous intention to convert to Christianity. He confirmed that he had not converted to Christianity and had not visited a Church or been interested in Christianity since that time.

2. The applicant said that he did not currently follow any religion. He had previously followed Islam and had attended mosque in Sri Lanka between one and three times a week. He said he had only been to mosque three times in his whole time in Australia. I asked why this was and he said he did not know, he didn’t feel like it so he did not go. He confirmed that he had not been to a Church since the breakup with his girlfriend.

3. I asked the applicant about his involvement with the SLMC and he said that his family was still involved. I asked if his uncle was still chairman of the local branch and he said he was not but that he could not remember when he stopped being chairman. He said his brother-in-law was still a local committee member. He said he himself was not involved with the SLMC at the moment.

4. The applicant confirmed that he had been handing out flyers at the April 2012 rally protesting the Dambulla mosque attack. He said he did not know why the CID would have come looking for him. I noted that if he had not been involved in any violence at the protest, and the protest, he had confirmed had been sanctioned by the police, it might seem strange that the CID came looking for him after the protest. He did not respond to this concern but instead raised the warrant he said had been issued to him. The applicant said that his younger brother had been invited to come to the police station and his brother and mother had gone and spoken about his case. He said this was some time ago and he could not remember exactly as it had been so long.

5. I asked the applicant to tell me anything else that had happened to his brother-in-law and he said he could not say, he could not remember.

6. I asked the applicant about his fear that his sister would be assaulted by army officers. He said he did not remember anything about that.

7. At the hearing applicant claimed that there was a warrant on his name, which had been handed to his family, there was a case against him and he did not know the reason for that. He said apart from this he had previously given the details to the previous tribunal and could not remember clearly. I asked him when the warrant was handed to his family. He said he could not remember, but his family had called him within the last 4 – 6 months and told him about it. He said he feared harm from the local police and the CID.

8. We discussed the claimed warrant in detail. He confirmed that his family had told him 4-6 months ago that a warrant had been issued to him, but he was not sure of the exact date of the warrant. He said he did not have it in his possession and this was why he had not provided it already. He said he was mentally upset and unprepared for the hearing. I noted that the hearing invitations he had been sent had asked him to provide any relevant information. He said he had not read these.

9. He said that the warrant was in Sinhalese so his family could not read it but had been told by the police that there was an open warrant in his name, and that he had to report to the police or courts. He said that his family had actually been given two warrants, a warrant and then what was called an open warrant.

10. The applicant said that recently his older brother had been arrested and taken away. He said this had happened immediately after the April attacks against Christians. He said his brother had been jailed for 14 days and he had been beaten during this detention. I asked if there was any reason they would have suspected his brother of being involved in the attacks. The applicant said it was not like that, it was because when the authorities went to that particular area they recovered a [weapon] and were inquiring about things and had questioned his brother, previously he was part of PLOTE, and he had also been to [Country 1] and he also has a scar on his [body part], and because of all these reasons they decided to take him.

11. I noted that from what I had read, the attacks had not been near [City 1]. The applicant said this was true but that the event resounded all around Sri Lanka, and the authorities detained people all over. He said that his brother had received training as part of PLOTE and this meant the authorities were suspicious of his brother.

12. I asked the applicant if he thought that this would lead to a greater risk of him coming to the attention of the authorities and being detained and he said he did, because after that arrest they asked about the family members and his older brother told them the applicant was in Australia, but when they came to his home and asked his mother she had said she didn’t know the applicant’s whereabouts.

13. I put to the applicant country information including the previous DFAT report which, I explained to him, may indicate to me that whilst there were reports of sporadic attacks against Muslims and discrimination, particularly reprisals after the April attacks, the country information may indicate the risk was still low.

14. Since then, further and better information has been released, as discussed in detail below. I have therefore based my assessment on this more recent material, rather than that discussed with the applicant.

Consideration and Findings

1. I have carefully considered the situation of the applicant, his claims and his evidence. I had some concerns with aspects of his evidence, but the basis of his claims has remained consistent.

2. The applicant will return, I find, as a Tamil Muslim man. He departed unlawfully and will return as a failed asylum seeker. I find that he has not converted to Christianity and that if he returns to Sri Lanka he will resume his pattern of religious observance from prior to his departure. I find that he will return to his home area of [City 1].  I find that he and his family are members of and have supported SLMC, a Muslim based political party, and I accept that the applicant assisted the SLMC in 2010, and had a level of political engagement. I accept that his brother in law was a candidate at that election. I accept that he has received threats in the past from rival political parties. I accept that he attended a rally protesting the Dambulla mosque attack in April 2012. I accept that the applicant departed Sri Lanka unlawfully. Having regard to the country information summarised below, I also accept that the applicant’s brother was detained for 14 days shortly after the Easter terrorist attacks, and was beaten whilst detained.

1. I found his evidence of police harassment and detention prior to the April 2010 election and the harassment of the applicant’s brother in law after that election to be credible and to accord with country information about the treatment of those involved in politics at that time. I accept that these things occurred.

2. I have had regard to the country information and I do not accept that rally in April 2012 held in [City 1] was violent and involved arrests by the authorities because the available reporting of this protest indicates that it was peaceful and without incident.[1] Similarly, I do not accept that leaders of this protest were detained. The protests were widely reported in the media and I consider it reasonable to conclude that if leaders from that protest were detained that this would be reported on. For these same reasons I do not accept that the CID had any ongoing interest in the applicant due to his attendance at the 2012 rally.

   [1] AP reporting, ‘Sri Lankan Muslims protest demolition of mosque’, Fox News, 27 April 2012, BBC News, ‘Sri Lankan Muslims strike over Dambulla mosque’, 26 April 2012,

3. The applicant, despite being provided with opportunities to do so, has not provided a copy of the warrants he claims his family have been given that are in his name. He was not able to tell me what these warrants related to despite the police having given them directly to his family. I do not accept on the scant evidence he has provided that these warrants exist.

4. Since the hearing, the situation in Sri Lanka has changed considerably. The most recent DFAT report was published just prior to the Presidential election. In this report, DFAT states that Muslims make up the third largest religious group, at 9.7% of the population, and that Muslim communities are dispersed through Sri Lanka.[2] The report notes that religious tensions between Muslims and the Sinhala Buddhist majority have risen in the post-war period and there has been a growth in hate speech against Muslims and other minorities, and Muslim groups complain that they do not receive state protection from extremist Buddhist groups.[3] Following the 2019 Easter terrorist attacks, anti-Muslim sentiment has increased, with restrictions on the economic activities of Muslims, who could teach in Muslim schools, widespread detention and questioning on the basis of ‘extremism’ on limited evidence, and vehicle searches.[4]

   [2] DFAT Country Information Report Sri Lanka, 4 November 2019, 3.28.

   [3] DFAT Country Information Report Sri Lanka, 4 November 2019, 3.30.

   [4] DFAT Country Information Report Sri Lanka, 4 November 2019, 3.31 – 3.35.

5. There have been reprisal attacks since the Easter terrorist attacks, including physical assaults and property damage, including the burning or damage of Muslim businesses and one Muslim businessman being killed, and claims that the authorities did not do enough to stop the attacks, with DFAT stating that inter- communal tensions, and the potential for further unrest, remain high and assessing that there is potential for more reprisal attacks against the Muslim community and broader civil unrest following the Easter Sunday terrorist attacks.[5] This comes after attacks in 2018 on Muslim residences, shops and mosques and riots which led to the death of four people.[6]

   [5] DFAT Country Information Report Sri Lanka, 4 November 2019, 3.35

   [6] DFAT Country Information Report Sri Lanka, 4 November 2019, 3.37.

6. DFAT notes that there are no reliable statistics on attacks on Muslims and Muslim places of worship, but that incidents against Muslims have increased since the Easter terrorist attacks, that Sinhala Buddhist nationalist groups have engaged in a sustained campaign of hate speech against Muslims in recent years, that following Easter Muslims have been the subject of discrimination and vilification. DFAT concluded by stating that they assessed that in the current environment ‘Muslims face a moderate risk of violence … a low – but increasing – risk of official discrimination and a moderate risk of societal discrimination, including a growing threat to their freedom of religion.[7]

   [7] DFAT Country Information Report Sri Lanka, 4 November 2019, 3.40 – 3.41.

7. The information summarised above differs significantly from the information put to the applicant and that relied on by the delegate and the previous tribunal.

8. This information is supported by other credible reporting, including from the International Crisis Group which wrote in September 2019 that ‘Almost immediately after the Easter bombings, Sri Lanka’s Muslims began to experience an unprecedented degree of public pressure and insecurity.’[8] Describing the violence against Muslim communities afterwards, the report noted that:

   ‘it became clear that this was not spontaneous retaliation for the Easter attacks, but a continuation of the years-long and orchestrated anti-Muslim campaign. The attacks followed the same script as previous incidents of large-scale rioting against Muslims, with nationalist organisations bussing in supporters and mobilising local Sinhalese, and security forces, despite their extra powers under emergency law, failing to maintain order and in some cases appearing to assist rioters.’[9]

   [8] International Crisis Group, ‘After Sri Lanka’s Easter Bombings: Reducing Risks of Future Violence’, Report 302 / Asia, 27 September 2019,

   [9] International Crisis Group, ‘After Sri Lanka’s Easter Bombings: Reducing Risks of Future Violence’, Report 302 / Asia, 27 September 2019, >

   The report concluded that the government must work to end discriminatory enforcement of anti-terrorism law against Muslims, protect that community from violence and speak up against attacks and end impunity for past attacks.[10]

   [10] International Crisis Group, ‘After Sri Lanka’s Easter Bombings: Reducing Risks of Future Violence’, Report 302 / Asia, 27 September 2019, >

   Other reporting details attacks on Muslims, their homes and businesses,[11] and detail arbitrary detentions and arrests, mob violence, discrimination against Muslims and worryingly, official moves to limit Muslims’ freedom of expression and religion.[12]

   [11] Slater, Farisz, ‘After Sri Lankan attacks, Muslims face boycotts and violence’, The Washington Post, 7 July 2019, Human Rights Watch, Sri Lanka: Muslims Face Threats, Attacks, 3 July 2019,

9. In November 2019, Gotabaya Rajapaksa was elected as President. He presided over the brutal end of the civil was in 2009 and oversaw security agencies during and after the war that have been credibly accused of human rights violations.[13] Reports credibly state that his election was partly due to the utilisation by his party of right wing ethno-nationalist groups which have targeted Muslims, and notes that his government will be challenged by social conflict arising from this.[14] There are fears that many of the members of the ethno-nationalist groups will be absorbed into mainstream politics, increasing potential for the harm and discrimination of the Muslim minority.[15]

   [13] Jayasuriya, K., The Sri Lankan election and authoritarian populism, East Asia Forum, 27 November 2019,

   [14] Jayasuriya, K., The Sri Lankan election and authoritarian populism, East Asia Forum, 27 November 2019, Arudpragasam, A., ‘The Rajapaksas Will Ruin Sri Lanka’s Economy’, Foreign Policy, 27 November 2019,

10. As a person who left Sri Lank unlawfully, the applicant is liable to prosecution, and will be arrested, detained and questioned at the airport by a number of government agencies.[16] It is understood that detainees are not subjected to mistreatment during processing at the airport.[17] The applicant would be charged with illegal departure and detained at the CID airport office, will come before a magistrate and most likely be bailed. On conviction he is very likely to be fined rather than jailed.[18] The DFAT report does indicate that there may be delays in having the applicant’s case heard, and during this time he may have to report to the local police station.[19] DFAT goes on to assess that ‘…returnees face a low risk of societal discrimination upon return to their communities. DFAT further assesses that, where it occurs, surveillance of returnees can contribute to a sense of mistrust of returnees within communities.’[20]

    [16] DFAT Country Information Report Sri Lanka, 4 November 2019, 5.31 – 5.32.

    [17] DFAT Country Information Report Sri Lanka, 4 November 2019, 5.33.

    [18] DFAT Country Information Report Sri Lanka, 4 November 2019.

    [19] DFAT Country Information Report Sri Lanka, 4 November 2019, 5.34 – 5.35.

    [20] DFAT Country Information Report Sri Lanka, 4 November 2019, 5.50

11. DFAT report that police, through low capacity, lack of training, poor arrest and detention procedures and poor policing methods that focus on extracting confessions, resort to torture and that the incidence of mistreatment and torture was still common.[21]

    [21] DFAT Country Information Report Sri Lanka, 4 November 2019, 4.26.

12. I have carefully considered the country information before me. There is, in my view, a credible basis to conclude that Muslims in Sri Lanka will face continued discrimination and harassment from the authorities, societal discrimination and the potential for violence, and huge pressure to reduce outward displays of their religion and expressions of their faith. There is more than a remote chance that these harms will increase under the current government, supported and encouraged by ethno-nationalist groups which the government has pandered to and protected.

13. In this context, the applicant will return to Sri Lanka. I find that there is only a remote chance he will suffer harm at the airport, on the country information above. Nor do I find that he will suffer serious or significant harm in being charged and the court processes that will follow. But on return to [City 1], the applicant will face, I find, significant difficulties. He will have come to the attention of the authorities through the manner of his return, checks conducted by CID from the airport and the potential for him to have to report to the police as a condition of bail. As DFAT notes, Muslims face an increasing risk of official discrimination and there is a chance, which I assess on the country information is not fanciful, that the applicant may suffer harm in his interactions with the authorities including the potential for detention, serious mistreatment or other serious harm. the applicant will return as a Muslim Tamil male who has lived outside Sri Lanka for a number of years now and may, because of this period of absence, arouse the interest and suspicion of local authorities, who may choose to detain the applicant, as they did his brother, to determine his activities whilst outside Sri Lanka and on return. In doing this, I consider the country information establishes that it is not far-fetched that the applicant would face torture or other serious mistreatment at the hands of local authorities. On a fair reading of the country information, I consider that the information about the situation for Muslims, returnees, and those who interact with local police and other authorities and may be detained or arrested by them establishes that such a scenario is neither insubstantial or far-fetched, and I find that there is more than a real chance, that is one that is not remote, that the applicant may suffer harm amounting to serious harm at the hands of the authorities. Such harm, of torture or other serious mistreatment by the authorities would be for the essential and significant reasons of the applicant’s actual or imputed religion as a Muslim in the current anti-Muslim environment in Sri Lanka, and for reasons of his membership of a particular social group as a Muslim male failed asylum seeker returnee who has lived in Australia for some years. Torture and serious mistreatment I find comes within the definition of serious harm, and the harm, carried out on the applicant during detention or other interactions with the authorities for the purpose of extracting information would be systematic and discriminatory conduct by those authorities as it would be targeted at the applicant for the above reasons and non-random.

14. I find that this harm, by agents of the state, cannot be protected from by the state – whilst there is some information that the upper echelons of the police force do not condone torture, the Sri Lankan state has moved slowly and inefficiently to stamp out torture and DFAT considers that it remains common. Similarly, the applicant cannot relocate to avoid the feared harm because he fears harm from the authorities who are present throughout Sri Lanka – and I find that the possibility of his detention and therefore torture or mistreatment is an issue throughout the country’s police force.

15. I also find that the applicant faces a real chance of harm from Sri Lankan Buddhist ethno-nationalist extremists and related elements of Sri Lankan society. DFAT concluded their assessment of the situation for Muslims by stating that they assessed that in the current environment ‘Muslims face a moderate risk of violence … a low – but increasing – risk of official discrimination and a moderate risk of societal discrimination, including a growing threat to their freedom of religion. I find that if the applicant returned to [City 1], there is a real chance that he will face physical violence and a threat to his religious freedom from these people for reasons of his Muslim faith, a risk exacerbated by his involvement – and his family’s involvement- with the SLMC - an identifiably Muslim political party. I find that this harm would be for the essential and significant reason of his religion and his actual or imputed political opinion, that such harm would constitute serious harm including significant physical ill treatment or harassment as well as a significant constraint on his ability to practice his religion which together constitutes serious harm, and that this serious harm would be for systematic and discriminatory as he would be targeted for his religion and actual or imputed political opinion.

16. I have carefully considered all that I have accepted of the applicant’s claims, and considered these claims with my assessment of what will occur in the reasonably foreseeable future in Sri Lanka on the basis of the best and most recent country information available.

17. I find that there is a real chance, that is on that is not remote or far-fetched, that the applicant will suffer serious harm amounting to persecutory conduct for reasons of his religion, actual or imputed political opinion and membership of a particular social group at the hands of the authorities, Sri Lankan Buddhist ethno-nationalist extremists and related elements of Sri Lankan society if he returns to Sri Lanka, now or in the reasonably foreseeable future.

Conclusions

1. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

DECISION

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

Sean Baker
Member