1810827 (Refugee)

1810827 (Refugee) [2023] AATA 4558 (26 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Simon Leske
CASE NUMBER:  1810827
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Nora Lamont
DATE:26 October 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 26 October 2023 at 8:44am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – ethnicity and religion – Muslim with Sinhalese Buddhist friends – attended temple and supported and fundraised for Sinhalese group – threats from both Muslims and Buddhists, and attempt to kill – gradual realisation that group was extremist in teachings – delay in applying for protection – two return visits and period as unlawful non-citizens – country information – members of family unit – two Australian-born children – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (b), (c), 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 dependants.
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 Home Affairs on 29 March 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Sri Lanka, applied for the visas on 17 November 2015.
The applicants appeared before the Tribunal on 12 October 2023 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.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
The Tribunal has the following documents and submissions before it: [1]
[1] AAT Folio 1810827
·Department Decision Record and Notification letter dated 29 March 2018
·Representative’s Legal Submissions dated 6 August 2023
·Statutory Declaration sworn by the applicant dated 6 September 2023
·Al Jazeera article dated 12 April 2021, ‘What is behind the anti-Muslim measures in Sri Lanka?’
·Human Rights Watch article dated 23 April 2020, ‘Sri Lanka: Due process concerns in arrests of Muslims’
·Human Rights Watch Submission to the UN Human Rights Committee in advance of its review of Sri Lanka dated 30 January 2023
·Al Jazeera article dated 28 May 2014, ‘Sri Lanka Monks occupy ministry building’
·WSWS article dated 13 April 2019, ‘Sri Lankan writer imprisoned at instigation of Buddhist extremists’
·CNN article dated 17 July 2014, ‘Fascists in saffron robes? The rise of Sri Lanka’s Buddhist ultra-nationalists’
·Human Rights Watch article dated 1 February 2021, ‘Open wounds and mounting dangers’
·1609357 (Refugee) [2019] AATA 5459 (12 July 2019)
·Victorian Heavy Vehicle Driver Licence of [the first applicant]
·Birth Certificate of [the fourth applicant]
·Birth Certificate of [the third applicant]
·Sri Lankan Passport of [the second applicant]
·Victorian Driver Licence of [the second applicant]
There are no non-disclosure certificates on the applicant’s file.
Applicant one and two travelled to Australia on valid Sri Lankan passports and state they are nationals of Sri Lanka. Their two children were born in Australia and birth certificates have been provided. There were no concerns about their identity by the delegate. Therefore, the Tribunal has assessed the applicants claims against Sri Lanka as their country of nationality and their receiving country.
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s36(3) of the Act.
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 (Cth) (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, 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 themselves 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.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The primary applicant was born in [Suburb] Kandy Sri Lanka. He is married with two children. His parents remain in Kandy. He has one brother who resides in [Country] and another who remains in Sri Lanka. He currently works casual at [Employer] and his wife works in [Work sector].
The applicant’s migration history is as follows: [2]
[2] Departmental File CLF201838480
Migration History
·16 January 2006 – Applicant granted a Student Class TU subclass 573 visa
·[January] 2006 – Applicant arrived in Australia on Student subclass 573 visa
·15 August 2006 – Applicant granted Student subclass 573 visa
·[January] 2008 – Applicant departed Australian on a Student visa
·[February] 2008 – Applicant returned to Australia on a Student visa
·[June] 2009 – Applicant departed Australia on a Student visa
·[August] 2009 – Applicant arrived in Australia on a Student visa
·[February] 2010 – Applicant 2 arrived in Australia on a Student Class TU subclass 573 visa
·11 August 2010 – Applicant and Applicant 2 granted Student Class TU subclass 572 visas
·4 November 2012 – Applicant and Applicant 2’s Student visas expired
·[Date] – Applicant 3 born in Australia
·17 November 2015 – Applicant, Applicant 2, and Applicant 3 lodged application for Protection Class XA subclass 866 visas
·[Date] – Applicant 4 born in Australia
·7 September 2017 – Applicant 4 submitted Protection visa application
Claims
The primary applicant’s claims as summarised by the delegate and confirmed at the Tribunal hearing are as follows:
·He is a Muslim but had friends who were Buddhists, and he believes that the Sinhala and Muslim community should live in peace.
·He was a strong supporter of the Sinhalese group called the Ravana Balaya but this made him enemies in the Muslim community.
·He had a friend named [Mr A] and he was the one who introduced him to the Ravana Balaya and he made him believe that they were not against Muslims.
·Muslims tried to kill him as did [Mr A].
·He started fundraising for the Ravana Balaya in [City].
·They would come to his father’s shop, and they took him around to fundraise from the Muslim community. They knew the money was for the Buddhist temple, but they gave anyway because they know the Sinhalese are the majority.
·His parents still get calls seventeen years later as he is on their target list as he knows all their principles.
Applicants two, three and four do not have claims of their own and rely on the applicant’s claims as members of the same family unit.
Tribunal Hearing
The applicant was open and forthcoming with his claims for protection. He spoke about his education and his [Subject 1] course in Sri Lanka. He described his family background as being well-off. He said he was religious and attended the mosque in Sri Lanka but not so much anymore here in Australia. He came to Australia in 2006 and started a Diploma course in [Subject 2]. He said he went back to Sri Lanka in 2008 to discuss his marriage and to be introduced to his future wife. In 2009 he returned to Sri Lanka to get married. His wife came to Australia in 2010.
The Tribunal asked the applicant to go back to 2006 and what was going on in his life in Sri Lanka. He said he started mixing with the Sinhalese and he learnt many things. He started going to a Buddhist temple and they gave him free food. He said it was his habit to play [Sport] and then have food with his friends at the temple. It was like a second home, and he liked it. It was [Year] when he was doing A levels in [City]. He started going three times a week to the temple. When asked what else he did in the temple besides eating he said he would do work like cleaning. All his friends at the temple were Sinhalese.
The Tribunal asked him if they gave him their opinions on religion to which he said they did. The Tribunal asked him what he liked about Buddhism, and he said he found it interesting, peaceful, a simple way of life and he liked to listen to them. The Tribunal asked him if he knew that they were Ravana Balaya Buddhists and if he knew what they believed in. He said they were a vigorous sect. The Tribunal asked him if he knew they believed in a God that has twenty heads as he was claiming he was at the temple for many years. He said they have extreme views they believe that Sri Lanka is a Buddhist state. He said it took him two to three years to realise their views were extreme. He said there was Tamil versus Singhalese fighting, and he would go house to house telling people to be vigilant against the LTTE.
The Tribunal asked the applicant if he was dissatisfied with being a Muslim and if he was looking to convert. He said no, he just liked hanging around his friends. He said his friend [Mr A] targeted him and he would come to his father’s shop. He would come so often he got to know the applicant’s relatives. He was using him to raise money for the temple. He would take him around to shops in the Muslim community to fundraise. The applicant was asked if the Muslim community knew the fundraising was for Buddhists said they knew it was money for the Buddhists, but they donated anyway because they knew the Sinhalese are the majority.
The applicant said that in 2005 some overseas monks came, and they started doing activities against the Muslims. He started to realise their plans and he became cautious. He also felt that the Muslim community started to feel he had betrayed them.
The Tribunal asked the applicant about his claim that the Muslim community tried to kill him, he said there was a mistake in his original application and that there was one time they tried to harm him. He was in [City] in 2008 when he had returned to Sri Lanka, and he was at the gym. His trainer told him there were people downstairs looking for him. He managed to get out the emergency exit and get away from them. The Tribunal asked who they were and if they were Imams? He said not Imams, but people sent by them. He said he went to his room at his father’s shop. The Tribunal asked why they didn’t come looking for him at his father’s shop as his father was a prominent businessman. He said he hid for four days. Within a week another incident happened so he went to his uncle’s house in Colombo until he came back to Australia.
The Tribunal asked him what was the other incident that happened to him, and he said after about a week after the first incident he was going to see his uncle and he went to play [Sport]. [Mr A] came with three or four people with knives and bats, he was able to escape by running towards a lake and there was a three-wheeler (Tuk-Tuk) there he used to get away.
The Tribunal asked if anything else happened to him and he said that he received threatening phone calls. They were from the Buddhists. They still call his parents. He said he is on their ‘list’. The Tribunal asked the applicant how it was that he could go back two times, and nothing happened to him. He said he stayed inside and that he kept quiet. The Tribunal asked why his parents made him come back to Sri Lanka two times even though they knew he had attempts made on his life. He said his mother is very fond of him and according to tradition his mother wanted to see the wedding, so she asked him to come. He said he knew it was high risk, but she was getting old. He said he stayed in Colombo with his wife’s family as there were lots of celebrations after the wedding.
The Tribunal asked when the last time his family received a phone call, and he said it was four months ago they called pretending to be his friend and asked when he was coming back from Australia.
Findings
The issue in this case is whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in s5J(1) and if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to their receiving country Sri Lanka, there is a real risk that they will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal accepts the following in relation to the applicant’s claims:
·The applicant is a Muslim from Kandy Sri Lanka.
·He is married with two children.
·He comes from a well-off family and his father owns a business in [City].
·The applicant had some Sinhalese friends and has been to a Buddhist temple.
However, for the following reasons the Tribunal does not accept that the following:
·The applicant holds a genuine fear of returning to Sri Lanka.
·That it took four to five years for the applicant to realise that the Buddhists were extreme in their agenda.
·The applicant fundraised for the Buddhists from Muslim contacts.
·That Muslims came to his gym and wanted to kill him.
·That his friend [Mr A] attempted to kill him, and he escaped.
·That he hid the two times he returned to Sri Lanka.
First, the applicant has been in Australia since 2006 some seventeen years. He was in Australia for nine years prior to applying for a protection visa. The applicant had exhausted all other avenues of visas prior to putting in his application for protection. The Tribunal would have thought that if the applicant held genuine fears he would have applied for protection when he first arrived in Australia. Whilst the candidate did explain that his wife had health issues and they lost a child during this period of time, the applicant did not flee Sri Lanka due to fears he held and he went back to Sri Lanka two more times when he claims several incidents happened to him, and yet he still did not apply for protection for several years.
Second, the applicant returned to Sri Lanka in 2008 and again in 2009. In 2008 he went back for a little over a month and in 2009 he went back for three months. Yet he states that his father warned him not to come back, then says he was ordered to come back to Sri Lanka to get married. The Tribunal has considered that if the applicant really held fear of return to Sri Lanka, he would not have returned there two times. The applicant told the Tribunal his mother wanted him to return despite his claims that people were looking for him.
Third, the applicant when asked what he liked about the Buddhists simply said they were peaceful, they have a simple way of life and he liked to listen to them. When the Tribunal asked him about what he knew about the Ravana Balaya Buddhists he said they had extreme views and believed Sri Lanka was a Buddhist state, but he only realised this after he had attended the temple for two to three years. The Tribunal has considered that the applicant is a smart man who is educated, had lived in Sri Lanka his entire life, and was a practicing Muslim, yet somehow, he didn’t realise that they were extreme for several years is somehow unbelievable.
When asked if he was looking to convert to Buddhism, he said no he was just hanging out with friends. When asked what he did when he went to the temple, he said he ate food and did some cleaning. It makes no sense that the applicant was going to the temple three times a week for years as he described but he failed to see their extreme agenda, he just went there to eat and hang out with his friends. Somewhere in between hanging out with his friends on a regular basis at the temple, his Sinhalese Buddhist friends suddenly turn on him and want to kill him. There was no explanation as to why they would suddenly turn on him and want to kill him, and no explanation as to why it took so long for the Muslim community to turn on him, allegedly at the same time. Through all of the years the applicant was going to the temple and through his activities of fundraising he had no issues with either the Buddhists or Muslims. It wasn’t until he came back to Sri Lanka in 2008 after being gone for two years that the trouble began.
The Tribunal finds it far-fetched that a Muslim would bring his Buddhist friends to Muslim businesses and ask them for donations in support of the Buddhists. When asked why he thought they were donating to Buddhists he said it was because they knew that the Sinhalese are in the majority. The Tribunal took that to mean they were intimidated into donating. Further, in the applicant’s statement he says that in 2008 his father and brother asked him about his activities with the Buddhists as people were asking when he would come back to Sri Lanka. This indicates that his family was unaware of his attending the Buddhist temple for many years and his involvement with them, including the fundraising he was doing in the Muslim community. This does not seem logical if he was staying in his father’s shop and went to businesses in the Muslim community seeking donations yet his own father who owned the shop was unaware of these activities.

The applicant claims that after the Muslims came looking for him at the gym he went to his room at his father’s shop and hid. However, in the applicant’s Statutory Declaration dated 6 September 2023 at number fourteen it says that his father sold the shop in or around 2003. [3]
[3] AAT Folio Submissions Statutory Declaration.
The applicant claimed his brother’s shop was burnt down and that his brother was also involved in Buddhism. He is now seeking asylum in [Country]. The applicant’s statement indicates that his brothers shop burnt down during a riot in Colombo and therefore the Tribunal considers that it was from generalised violence and not a targeted attack. In any event the Tribunal was provided with no evidence of the brother’s involvement with Buddhists.
The Tribunal did not address the SRSS payments brought up by the delegate in their decision as it is irrelevant to the protection matters before the Tribunal.
The Tribunal asked the applicant why he couldn’t move to Colombo. He said he would have to register depending on the district and the authorities would come to know as it is a small place, and the neighbours could report him. DFAT reports that there are no restrictions on citizens moving freely within the country: [4]
INTERNAL RELOCATION
5.13 The Constitution provides for freedom of movement for all Sri Lankan citizens, and no official restrictions apply to internal relocation. Access to government services through the local village level office (grama niladhari office) is available to Sri Lankans who relocate; a person intending to relocate to another district only has to register himself/herself with the grama niladhari office and in the house-holders list, and obtain a police clearance.
5.14 In practice, relocation can be difficult. An absence of family connections or a lack of financial resources can limit internal relocation options. An absence of language skills can act as an additional barrier to internal relocation for those Sri Lankans for whom Sinhala is not their first language, as it may limit access to education and employment in some part of the country. Continued military occupation of private land, difficulties establishing title to land, and uncleared land mines or unexploded ordnance also complicate internal relocation, particularly in the north.
5.15 Sri Lankan security forces maintain effective control throughout Sri Lanka and individuals are unlikely to be able to relocate internally with anonymity. In particular, the Sri Lankan military, intelligence and police continue to maintain a high level of awareness of returned IDPs to the north and east. The Government has reduced the level of monitoring, but some individuals have reported that their movements continue to be observed.
5.16 Sri Lankan authorities retain comprehensive countrywide ‘stop’ and ‘watch’ lists of those suspected of involvement in terrorist or serious criminal offences (see Liberation Tigers of Tamil Eelam (LTTE)). Individuals on either list will not be able to avoid adverse attention from security forces. However, DFAT assesses that individuals seeking to relocate internally to minimise monitoring or harassment by local-level officials for petty issues can safely do so.
Country Information
[4] DFAT Country Information Report Sri Lanka (23 December 2021).
DFAT reports the following about the conditions in Sri Lanka for Muslims: [5]
[5] DFAT Country Information Report Sri Lanka (23 December 2021).
Muslims
3.22 Muslims are the third largest religious group in Sri Lanka (9.7 per cent of the population identified as practising Islam at the time of the 2012 census, the most recent census available). 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 (Ampara, Batticaloa and Trincomalee), north (Mannar) and northwest (Puttalam). Nearly all Sri Lankan Muslims (98 per cent) are Sunni. A small number of Shi’a, including members of the Bohra community from India, reside 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.
3.23 Muslim property rights fall under state law while sharia (Islamic) law and cultural practice apply to marriages (see Muslim women). Although many Muslims work in agriculture and fisheries, many also work in business, industry and the civil service. There are many wealthy Muslim businesspeople throughout Sri Lanka.
3.24 Muslim parties have historically been active in Sri Lankan politics. However, following the 2020 parliamentary elections, such parties hold few seats. The Sri Lanka Muslim Congress (SLMC), traditionally the largest Muslim political party, has a single seat in parliament, as do each of the All Ceylon Makkal Congress (ACMC) and the new Muslim National Alliance. There is one Muslim party in the governing coalition, the SLPFA. There is a single Muslim minister in Cabinet: Minister for Justice Ali Sabry, who was previously President Gotabaya Rajapaksa’s long-term legal counsel.
3.25 Although most Muslims sided with (Sinhalese) government forces during the war, religious tensions between Muslims and the Sinhala Buddhist majority have risen in the post-war period and most especially since the 2019 Easter Sunday terrorist attacks but also earlier in 2014 and 2018. Extremist Buddhist groups, such as the BBS, have targeted the Muslim community, including through social media. While freedom of expression has declined overall, greater impunity for hate speech, together with the growth of social media use, has enabled an increase in hate speech against Muslims and other religious minorities. Buddhist extremists have advocated for a boycott of Muslim-owned shops and businesses. Sources from within the Muslim community told DFAT Muslims did not receive adequate state protection from the BBS and other
extremist Buddhist groups, but DFAT is not aware of any recent acts of violence that resulted in a lack of state protection.
3.26 In March 2020, the Sri Lankan Government announced compulsory cremations for those who had died from COVID-19, claiming the measure would limit the spread of the disease. Without any medical basis and against the advice of the World Health Organisation, the Government contended that burial in accordance with Islamic tradition posed a public health risk. The policy, which was ended in February 2021 when the Sri Lankan Government came under sustained international pressure, was highly traumatic for Sri Lankan Muslims. Sources said the policy reinforced Sinhalese beliefs that Muslims had spread COVID-19 and were outsiders to Sri Lanka. Local sources said some Muslims avoided COVID-19 testing and medical treatment for fear they might be cremated upon death.
2019 Easter Sunday terrorist attacks and aftermath of anti-Muslim violence
3.27 Anti-Muslim sentiment in Sri Lanka increased following the 2019 Easter Sunday terrorist attacks (see Security situation). Under the Emergency Regulations promulgated following the attacks, clothing that covered the face and prevented identification was banned in public places, which was interpreted as a clear reference to Islamic dress for women. Some shops, hospitals, courts and universities banned women wearing the hijab from entering their premises, until the Government clarified that the ban did not extend to the hijab. In 2021, Minister for Public Security, Sarath Weerasekera, again called for a ban of face coverings on ‘national security’ grounds. This proposal appears to have stalled (as at the time of publication).
3.28 Local sources told DFAT that, after the attacks, Muslim shop owners, stallholders, mobile vendors and daily labourers in the Eastern Province were obstructed from carrying out their daily business. Leaflets were also distributed promoting boycotts of Muslim businesses, and some Muslims were denied access to shops and transport.
3.29 The Muslim community came under increased scrutiny as part of the then-government’s counter-terrorism efforts following the attacks, including monitoring for signs of radicalisation. According to media reporting, up to 2,000 Muslims were questioned and, in many cases, detained for ‘extremism’ on the basis of limited evidence. Muslims were reportedly also targeted for vehicle searches at security roadblocks throughout the country. The Government has indicated it will work to ‘de-radicalise’ Muslims suspected of extremist views, including, potentially, through a rehabilitation process modelled on Tamil rehabilitation. It is unclear what such a process, if it were introduced, would entail.
3.30 After the attacks, the Muslim community has been the subject of reprisals, including physical assault and property damage. According to an NGO report examining online hate speech between March and June 2020, 58 per cent of online hate speech in all national languages (Sinhala, Tamil, and English) attacked Muslims or Islam on a variety of grounds, while of the Sinhala-language posts surveyed, 79 per cent attacked Muslims or Islam. In late 2021, data collected in similar reports indicates this percentage has declined substantially, though Muslims remain the most-targeted religious or ethnic group by hate speech.
3.31 DFAT is not aware of any significant episodes of anti-Muslim violence in 2021. DFAT assesses that Muslims face a low risk of violence. DFAT also assesses that Muslims face a low – but increasing – risk of official discrimination and a moderate risk of societal discrimination, including a growing threat to their freedom of religion. DFAT further assesses that Muslims critical of the Government face a moderate risk of harassment and arbitrary detention.
Country information from DFAT indicates that Muslims in Sri Lanka face a low risk of violence and a low risk of official discrimination.
The Tribunal after considering the applicant’s evidence cumulatively and having looked at the available DFAT country information, does not accept that the applicant has a well-founded fear of persecution on the basis of his involvement with Buddhists or for his being a Muslim if he returns to Sri Lanka now or in the reasonably foreseeable future.
Further, the Tribunal does not accept on the basis of the evidence and submissions before the Tribunal that the first named applicant faces a real chance of serious harm for any reason contained in the s5J(1) criterion should he return to Sri Lanka now or in the foreseeable future.
Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Sri Lanka, there is a real risk that the applicant will suffer significant harm from the Buddhists or Muslims or for any reason. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s36(20(aa) of the Migration Act.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Nora Lamont
Member

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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2023] AATA 4558

26 October 2023

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