1714957 (Refugee)

The matter before the court concerned an applicant seeking protection as a refugee, with the decision under review having been remitted from the Federal Circuit Court. The applicant, a Muslim male from Sri Lanka, claimed he would face persecution upon return to his home country due to his religion, past involvement with the Sri Lankan Muslim Congress party (SLMC), and his status as a failed asylum seeker who had resided in Australia for some years. The court was required to determine whether the applicant had established a real chance of suffering serious harm amounting to persecution, either from state authorities or non-state actors, for reasons of his religion, political opinion, or membership in a particular social group.

The court's reasoning focused on assessing the current country information regarding the treatment of Muslims in Sri Lanka. It noted reports detailing an unprecedented degree of public pressure, insecurity, and orchestrated anti-Muslim campaigns following the Easter bombings, with security forces sometimes failing to maintain order or appearing to assist rioters. The election of President Gotabaya Rajapaksa, who presided over the end of the civil war and whose government was credibly accused of human rights violations, was also considered significant, with fears that ethno-nationalist groups would be absorbed into mainstream politics, increasing the potential for harm to the Muslim minority.

Applying these country information assessments, the court found that while the applicant faced only a remote chance of harm at the airport or during initial legal processing, he would encounter significant difficulties upon return to his city. The court determined there was a real, non-remote chance that the applicant would suffer harm amounting to torture or other serious mistreatment at the hands of local authorities, particularly due to his status as a Muslim male returnee who had lived abroad. This harm was considered to be for essential and significant reasons of his actual or imputed religion and membership in a particular social group. Furthermore, the court found a real chance of physical violence and threats to religious freedom from Sri Lankan Buddhist ethno-nationalist extremists and related societal elements, for reasons of his religion and actual or imputed political opinion. The court concluded that this harm, by agents of the state and non-state actors, could not be avoided by relocation within Sri Lanka.

Consequently, the Tribunal was satisfied that the applicant was a person in respect of whom Australia had protection obligations under the Refugees Convention. The matter was remitted for reconsideration with a direction that the applicant satisfied the criterion set out in s.36(2)(a) of the Migration Act.