1811021 (Refugee)

[2023] AATA 4597

1811021 (Refugee) [2023] AATA 4597 (27 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Tony Tran

CASE NUMBER:  1811021

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Peter Haag

DATE:27 October 2023

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 27 October 2023 at 5:03pm

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – race – religion – Muslim – political opinion – United National Party activist – political violence – attacks by Bodu Bala Sena monks – attacks on home and family – delay in applying for protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424A, 499
Migration Regulations 1994, Schedule 2

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

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 Home Affairs on 6 April 2018 to refuse to grant the applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, who claim to be citizens of Sri Lanka, applied for the visas on 13 November 2015. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and are not members of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicants (s 36(2)(b) and s 36(2)(c) of the Act).

3. The applicants appeared before the Tribunal on 6 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Witness A], by telephone from [Country 1], [Witness B], by telephone from [Country 2] and [Witness C], by telephone from Sri Lanka.

4. The applicants were represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

5. 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.

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 because the person is a refugee.

7. 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).

8. 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–5LA, which are extracted in the attachment to this decision.

9. 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.

   Section 5AAA of the Act

10. Pursuant to s 5AAA of the Act, it is for the applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim. The Tribunal applied this provision when considering the applicants’ claims and evidence.

    Mandatory considerations

11. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Applicants’ background

    Primary applicant

13. In his Protection visa application, the first named applicant claims to be a citizen of Sri Lanka, born on [date] in Kandy, Sri Lanka. He claims to be a Sri Lankan Muslim who can speak, read and write in English, Tamil and Sinhala.

14. He is married to the second named applicant since [December] 2008.

15. In his visa application, the applicant provided details of his mother, father and brother, who are all citizens of Sri Lanka residing in Kandy, Sri Lanka.

16. At the time of his visa application, the applicant was residing in [Town 1], Victoria, Australia, since January 2012, and had resided in [Town 2], Victoria, Australia, between October 2013 and October 2014. Prior to this, the applicant resided in [Town 3], Victoria, Australia, between August 2007 and October 2010. Between [birth] and August 2007, the applicant resided in Kandy, Sri Lanka.

17. At the time of his visa application, the applicant was employed in [specified] services in Melbourne, Australia. The applicant did not provide details in his visa application of any previous employment.

18. In his visa application, the applicant stated that he completed his primary and secondary schooling between [specified years] in Kandy, Sri Lanka. He stated that he had completed courses at [College 1] ([specified years]), [College 2] (July 2007 to October 2007) and [College 3] TAFE ([specified years]). He did not provide details or course descriptions of the courses he completed at these institutions.

    Secondary applicant

19. In her Protection visa application, the second named applicant claims to be a citizen of Sri Lanka, born on [date] in Kandy, Sri Lanka. She claims to be a Sri Lankan Muslim who can speak, read and write in English, Tamil and Sinhala.

20. She is married to the first named applicant since [December] 2008.

21. In her visa application, the applicant provided details of her father, who is a citizen of Sri Lanka residing in [Town 4], Sri Lanka, and her mother and brother, who are both citizens of Sri Lanka residing in Kandy, Sri Lanka.

22. At the time of her visa application, the applicant was residing in [Town 1], Victoria, Australia, since January 2012, and had resided in [Town 2], Victoria, Australia, between October 2013 and October 2014. Prior to this, the applicant resided in Kandy, Sri Lanka, between [birth] and September 2010.

23. At the time of her visa application, the applicant stated that she was unemployed and had never been employed before, being supported by her father before her marriage to the first named applicant and being supported by the first named applicant since their marriage.

24. In her visa application, the applicant stated that she had completed her primary and secondary schooling between [specified years].

    Third and fourth named applicants

25. The third named applicant is a citizen of Sri Lanka born in Australia on [date]. The fourth named applicant is a citizen of Sri Lanka born in Australia on [date]. They are both the children of the first and second named applicants.

    Applicants’ identity

26. The first and second named applicants provided the Department with copies of their Sri Lankan passports and translations of their Sri Lankan birth certificates. They also provided the Department with the third named applicant’s Sri Lankan passport and Australian birth certificate, and the fourth named applicant’s Australian birth certificate.

27. The documents provided by the applicants are consistent with their evidence to the Tribunal in relation to their identities. There is no evidence to suggest that the applicants have a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicants, the Tribunal finds that they are citizens of Sri Lanka, and as such their protection claims will be assessed against Sri Lanka as the country of reference and ‘receiving country’ respectively.

    Migration history

28. [In] August 2007 the first named applicant arrived in Australia on a [Student] visa.

29. On 5 October 2007 the first named applicant was granted a subsequent [Student] visa.

30. [In] November 2008 the first named applicant departed Australia on a Student visa and returned to Australia [in] January 2009.

31. On 7 September 2009 the first named applicant was given a Notice of Intention to Consider Cancellation of his Student visa and on 2 October 2009 a decision was made not to cancel his Student visa.

32. [In] July 2009 the first named applicant departed Australia on a Student visa and returned to Australia [in] August 2009.

33. [In] September 2010 the second named applicant arrived in Australia on a [Student] visa.

34. On 24 August 2011 the first and second named applicants were granted [Student] visas.

35. [In] March 2012 the first and second named applicants departed Australia on Student visas and returned to Australia [in] May 2012.

36. [In] May 2013 the second named applicant departed Australia on a Student visa and [in] March 2013 the first named applicant departed Australia on a Student visa. [In] June 2013 the first named applicant returned to Australia and [later in] June 2013 the second named applicant returned to Australia.

37. On 14 March 2014 the first and second named applicants lodged an application for [Student] visas, which was refused on 30 October 2014. On 18 November 2014 the first and second named applicants lodged an application for review of the Student visa refusal decision to the Migration Review Tribunal (MRT).

38. On 18 February 2015 the third named applicant was added to the Student visa application and their Student visa application was refused. On 2 March 2015 the third named applicant lodged an application for review of the Student visa refusal to the MRT.

39. On 22 June 2015 the first and second named applicants were granted Bridging (Class WB Subclass 020) visas and on 23 June 2015 the third named applicant was granted a Bridging visa. [In] July 2015 the first, second and third named applicants departed Australia on Bridging visas and returned to Australia [in] September 2015.

40. On 6 October 2015 the Administrative Appeals Tribunal (the Tribunal) affirmed the Student visa application refusal (case no.1418851).

41. On 13 November 2015 the first, second and third named applicants lodged an application for a Protection visa and on 8 January 2018 the fourth named applicant was added to the Protection visa application.

42. On 6 April 2018 the Protection visa application was refused and on 18 April 2018 an application was lodged with the Tribunal for review of the Protection visa refusal decision.

    Claims for protection and other supporting documentation

43. The second, third and fourth named applicants claim to be members of the same family unit as the first named applicant and rely on this relationship to sustain their applications for a Protection visa. Otherwise, they did not submit any separate claims for protection with their visa applications.

44. The first named applicant submitted his claims for protection in the following statement, including 12 photographs referred to in the statement as “pictures taken with the Hon [Official A]”, attached to his Protection visa application, signed by the first and second named applicants and undated:[1]

    [1] Department file [number], Doc ID 4248646.

    • I went to Sri Lanka last [in] July 2015 Just to visit my family members, during the stay in Sri Lanka it was so crowded with political issues.
    • I went and supported the united national party because if the current existing ruling party takes over the country this would have a detrimental effect to the entire country
    • I was helping the UNP party with [Official A] to who was contesting under United National Party. [Official A] is one of the prominent leader in Sri Lanka and he is also a national leader of [Association 1] where the Buddhist elements in the country is very much against his political vision.
    • Just one week prior to the election date there was big crowd gathered in every suburb close to where my house located.
    • I went and meet several Muslims houses on requesting them to vote to [Official A]. Please see some of the attached photo as an evidence to my claim.
    • On our way back from these event we met an opposition group so called Bodu Bala Sena the hard-line Buddhist majority group threatening to kill all Muslims in the island Nation and wipe out all the Muslims from my village [Village 1] as well.
    • The BBS group stopped our vehicles and threatened us from contesting in this election. There was a violent broke out. in [Village 1] area as a result of this incident there was major physical violent occurred. They broke our windscreens, our cars and vans all have been severely damaged. They have asked us to vacate the place as soon as possible before any further damage could occur. I was very fearful of my life at this time. Since they were hitting us with chains and other equipment's. I was very scared, and to protect myself as a self-defence I just got out of the car and attacked one of the BBS Monk who was one of their leading Monk. Even though it is a serious matter to attack a Monk in Sri Lankan I had no option since they were in scores numbers and attacking us in every corner. We had no option for survival other than the need to hit them back.
    • So I took the iron stick the BBS member was holding in his hand and I bashed him on his [body part] to prevent me getting any injuries.
    • I never thought that they have noted my number and started following my identity to hit back on me. I believe that they noted my car registration number as they have many people working in defence ministry and other government institutions somehow they have got my house address.
    • The next day they came to my house when I was not there and threatened my parents and said they will kill me and they need to know where I was.
    • They came to take revenge on me and I knew they will be coming wherever I go in Sri Lanka as they are the majority and they still at large.
    • They were supported by then President Mahinda Rajapakse's brother Gota Rajapakse. They were involved in many criminal activities. These BBS monks as still supported by many government institutions and high ranking police officials.
    • My mother did not let me go out of the house and I was hiding inside the bedroom underneath the bed. My mum told them that I was not home and they have yelled at her in a very abusive language and went.
    • They told her that if they see me they will chop my head in front of her. My wife and my child was at my mother in law's house at that time of this incident. Her house is located at [an address in Village 1]. Luckily they did not know that I came from Australia to for a vacation.
    • My mum told me that they were holding knifes and few guns in their hands. They were waiting in front of my house for almost 3 hours. Since the Monks are well respected in Sri Lanka they are not prevented from carrying weapons. Especially this group so called BBS is one of violent group in Sri Lanka. Please see attached documents of their atrocities they have committed around Sri Lankan Muslims in the past few years.
    • Immediately after they have left from our place I rang my [brother in law] and explained my situation. He lives far away from our place in [Town 4] and he promised that his place was safe for me and my family.
    • I took my wife and child and immediately gone in hiding in [Town 4]. We were in [Town 4] from 19^th August to 6^th Sept 2015 at [an address in Town 4].
    • Since I have a little baby was born in Australia and my wife was worried and crying every day to escape from this incident. We have tried to approach some of the government institution for help to make a complain to police officers, but since the BBS was involved in this incident no one was willing to take our complains.
    • As result of this incident we had to escape from Sri Lank for our own safety. As I was involved in political activities now I'm in a situation not able to go back to my own country.
    • Earlier I was in a Student visa and my student visa has been cancelled due to study break.
    • My current circumstances have changed now, as I am not able to go back to my country my only option is to apply for this genuine protection from Australian government. Under the humanitarian ground I believe the Australia government will accept my claim and grant me a protection visa for me and my family so we don't need to face this incident ever again in our life.

45. The first named applicant (the applicant) submitted to the Department an online news article titled ‘Hardline Buddhists attack Muslim towns in Sri Lanka’, published in the Toronto Star on 13 November 2015.[2]

    [2] Ibid, Doc ID 4248647.

46. On 9 March 2018 the applicant submitted to the Department via email the following additions to his protection claims:[3]

    I am writing this to you in my own words with the Knowledge of English I have and without getting any help from of migration agents in regards of my protection visa application which was filed 2015 and express a few incidents and outcomes of the current situation what is happening in [Village 1] Kandy Srilanka From the Village I have come from and also some other areas where the Muslim community lives are been caused severe damages and injuries to the community people in the Village where I come from in [Village 1] Kandy Srilanka and Specially my own brother who who had been a Victim was beaten by the Sinhalese Mobs and Monks in the area I come from [Village 1] Srilanka.

    Now I have no words to express my feelings every single second I am worried about my country because the muslim minorities are getting attacked and their houses are getting burnt by the Buddhist extremists, their business and shops are fully burnt, religious mosques are severely attacked and burnt, people in my village I come from are attacked and put to injuries, approximately 900 - 1000 Muslims were displaced and temporarily sheltered in other areas in my village including my mother and brothers family. The politicians or the Srilankan government do not put an end to killing these innocent people. And we Srilankan Muslim community living in Australia and around the world are worried and concerned of the riots led by the Sinhalese Mobs and Monks over the Muslims.

    On [a day in] march 2018 the Buddhist Mobs had entered our village, town areas and started breaking houses and burning shops of the Muslim Victims, my brother tried to capture video footage on his mobile while the Buddhist mobs started breaking my mothers house for future police investigation reference purposes, the Mobs had pulled out my brothers mobile phone from his hand and had beaten him with stones and iron stick also my brother mentioned to me through telephone communication that the mobs whom he noticed were some of them who was involved in my previous incident while I was a victim in earlier 2015 while I was in Srilanka. Those Mobs had previously attacked me and threaten my two kids and my wife whom I am taking care of, I don't want my kids to go orphan if I ever had to leave Australia and go back to Srilanka and get killed by the Buddhist Mobs and Monks. Dear case officer please try to understand my situation at this point. Today my circumstance in Australia have changed, as I am not able to go back to my country, and I have applied for a genuine protection from the Australian government.

    Under the humanitarian ground I believe that the Australian government will accept my claim and grant me a protection visa for me and my family so we don't need to face this incident ever again in our life.

    [3] Ibid, Doc ID 4248669.

1. On 9 March 2018 the applicant submitted the following documents to the Department in support of his protection claims:[4]

   ·Two photographs of the applicant’s brother after allegedly being beaten;

   ·A copy of the applicant’s brother’s passport;

   ·Two photographs of shops in [Village 1], Kandy after allegedly being burnt;

   ·Two videos, one of the applicant’s house after allegedly being burnt, and one of shops in [Village 1], Kandy after allegedly being burnt.

   [4] Ibid, Doc ID 4248668.

2. On 22 March 2018 the applicant submitted the following documents to the Department in support of his protection claims:[5]

   ·Copy of a police report, with English translation, dated [in] March 2018, regarding a complaint made by the applicant’s brother [earlier in] March 2018 at the [Police Station 1], Sri Lanka, about an attack on his house;

   ·A copy of a medical certificate from the Medical Centre in [a location], Sri Lanka, dated [in] March 2018, for the applicant’s brother;

   ·A copy of the applicant’s mother’s deed of ownership for her house in Kandy, Sri Lanka;

   ·Copies of English translations of the applicant’s and his mother’s and brother’s Sri Lankan birth certificates.

   [5] Ibid, Doc ID 4248663.

3. On 26 March 2018 the applicant attended an interview with the Department.[6]

   [6] Ibid, Doc ID 4248680.

4. On 28 March 2018 the applicant submitted to the Department two CCTV photographs, timestamped [the day in] March 2018, allegedly of Buddhist extremists attacking his mother’s house.[7]

   [7] Ibid, Doc ID 4248679.

5. On 18 April 2018 the applicant provided the Tribunal with a copy of the Protection visa refusal Decision Record.[8]

   [8] Tribunal file 1811021, Doc Id 4235976.

6. On 30 August 2019 the applicant submitted to the Tribunal the following documents in support of his protection claims:[9]

   [9] Ibid, Doc Id 6188686.

• Photographs and screenshots of social media posts purportedly of the applicant’s political activities in Sri Lanka and Australia, including the photographs referred to in paragraph 44;

• A copy of a letter of support from [an official] of the [Community Organisation 1], dated 28 November 2018;

• A Statutory Declaration made by the second named applicant, signed and dated 26 August 2019;

• Copy of an English translation of a statement from the applicant’s mother in support of his protection claims, dated 20 February 2019;

• A copy of a course completion certificate from [Agency 1], dated 9 February 2007;

• A death certificate, with English translation, for the applicant’s father, registered [in] April 2016;

• The following Statutory Declaration made by the applicant in support of his protection claims, signed and dated 28 August 2019:

  Summary and history

  1. I came to Australia on a student visa [in] August 2007 to take up a course in [subject 1] integrated in the [course 1] and which would qualify me to the next level [course] , with the aim of specializing in the field of [subject area], in order to support and enhance the standard of my father's thriving middle market [business 1] in Sri Lanka. My father's long-standing desire was to educate me in [this] field and make me qualified to run his [business 1] in an organized manner, consequently he persuaded me and sponsored to study in Australia.

  My life in Australia

  2. I came to Australia from] August 2007 to [March] 2013 - During this time I have completed the Certificate 3 in English, [subject 1] and [course 1].

  3. In 2013 I applied for entrance to [course 2]. My Visa was declined due to a gap in my study. The reason for the gap in my studies was that my father passed away [in 2012] due a sudden heart attack. I was exceedingly saddened by his unexpected death, my mother who was in poor health also fell awfully unwell. I took off to Sri Lanka with my wife on the same day. We stayed in Sri Lanka for nearly 3 months. During the course of this period, my father's brother took the responsibility to run my father's business.

  4. On my return to Australia I was not mentally ready to get back and cope with my studies, devoid of my knowledge time lapsed creating a study gap of nearly 09 months, this was a very difficult period of time in my life as I was suffering from immense grief after the loss of my father. After I recovered from the ordeal, I focused my mind to do my higher studies, during this time my visa was on the verge expiring, and then I submitted my documents for the renewal of the Visa. My student visa got declined.

  5. I was so determined to obtain a degree in [Course 2] in Australia to build up a steady career in the industry back home in Sri Lanka. For this reason, I appealed and obtained a bridging visa, with the objective of somehow achieving the Australian degree to be fully fledged and [qualified].

  6. Also the Australian degree would positively afford me the opportunity to join the esteemed [Business 1] in Sri Lanka in the capacity of a management trainee. The bridging visa I obtained provided me the right to travel as well, On [a day in] July, 2015 I visited Sri Lanka to see my family members. We were blessed with a son in [year] and my mother was anxiously waiting to see her [grandson].

  Delay in applying for my protection visa in Australia

  7. I was a victim of an attack in Sri Lanka in 2015 of which I previously submitted a statement to the department of home affairs setting out the reasons why I applied for protection and this statement will further support the previous material submitted in my case, there was a relatively short gap of around two months between when I returned to Sri Lanka in 2015 and when I applied for protection in Australia. Before this time as already stated I was not in fear of my life in Sri Lanka, it was after the attack in 2015 that I feared persecution in Sri Lanka.

  8. After returning to Australia from Sri Lanka in 2015, my fear of persecution in Sri Lanka by the BBS escalated by many folds, a few weeks after I returned I heard of the extent of hatred and detestation by the BBS group in the village towards me, I realized that I should no longer return to Sri Lanka and I have not returned to Sri Lanka because of the grave danger that I had faced in Sri Lanka in my 2015 visit.

  9. In the period in 2015 soon after I returned to Australia I conducted a long search and found a migration agent who was willing to help me to submit honest information to the department of immigration to obtain protection visa.

  10 The migration agent, on hearing of my incident in Sri Lanka, advised me to furnish supporting evidence of the incident to provide to the department of immigration officers to consolidate my case.

  11. About 3 weeks after I arrived in Australia from Sri Lanka, the department of immigration invited me for an interview with reference to my student visa appeal.

  12. Even though I had my self-assurance to obtain the student visa once again (owing to my possession of all the supporting documents), I checked with my migration agent for his view and approval on the subject. Then the migration agent advised me not to be present at the interview as my case is adequate and appropriate to apply for a protection visa. So I agreed and accepted my migration agents advice (Hence did not attend the interview). This is the main reason for the refusal of student visa.

  13. I couldn't apply for the protection visa immediately after arriving Australia, as I didn't have much evidence in hand. As a matter of fact it took some time to contact the appropriate people in Sri Lanka in order to collect genuine evidence to submit the protection visa application. This is the reason for the lapse in time to submit my protection visa application, however I submit that this was not a long period of time, it was only a matter of a few months.

  14. After that I rang my best friend [Witness A] who was with me from the inception of the incident, moreover who involved me in the incidents by inviting me to join in the initial political meeting with [Official A]. [Witness A] was doing business in [Country 1] at the time. During my visit to Sri Lanka, he too visited Sri Lanka to support [Official A] in his election campaign. I have explained this at my protection visa interview as well.

  15. I didn't have photographic or any other evidence of the violent incident which took place, as my interest at that moment was to find a safe and secure place for my wife, child and myself (we fled to [Town 4] for safety) until we got back to Australia.

  16. I contacted my friend [Witness A] and explained my situation regarding protection visa and the supporting evidence of the incident we faced together. I thought it was better to provide some evidence of the incidence while applying for protection.

  17. [Witness A] said that he knows the official photographer who captured pictures during our campaign, from whom I should be able to get some pictures of proof to substantiate that I was working with [Official A] during the time of the 2015 parliamentary election. It took approximately more than a month to contact the photographer and receive the pictures to m hand, which I supplied as part of my protection visa application.

  My political involvement in Sri Lanka in 2015

  18. My visit to Srilanka in 2015 coincided with the Sri Lankan parliament elections 2015. One evening I was invited by my friend [Witness A] to his house in order to participate in a community service project discussion to be held with [Official A], contender under United National Party in the parliamentary election held. Furthermore [Official A] is a national leader of [Association 1].

  19. At the meeting [Official A] stated that if he wins the ministry position in the 2015 parliamentary elections he will be elected as the [specified minister] for the whole of Sri Lanka. Having said that, [Official A] pledged, upon his success he will assert to put in order [specified] facilities to all the people in my village.

  20. His assurance and guarantee was a word of honor to my village people. I too was impressed by his ideas. Mainly because I'm a born socialist, I think about the communities comfort at large. Having lived in Australia for many years, I used to often think about organizing a better life style for my community people in Australia as well as my village people in Sri Lanka.

  21. I was fully aware that the poor people in the village [suffer illnesses]. I had been a victim of hepatitis at the age of [age]. As a matter of fact, I strongly believe in service to humanity is the best work of life. Therefore I am wholeheartedly and enthusiastically involved in the welfare of people.

  22.Therefore I am actively involved in the following groups of organization, the [Community Organisation 1], [and named organisations].

  23. I have attached documents to prove my involvements with the above organizations

  and my active participation in the best interest of the community and Sri Lankan politics.

  The persecution and assault on me in 2015 in Sri Lanka.

  24. [In] August 2015 we went on procession (a well organized motorcade parade). The Bodhu Bala Sena (BBS) group led by [a named leader] objected to our parade by barricading the roadway of the convoy. As a result physical violence broke out. The BBS group was armed with iron bars and chains, some of the men were in possession of lethal weapons too, it was a traumatic violent event. A mob led by a BBS thug charged towards my hired car and smashed up the wind-screen. Then I promptly got out from my rented car to avert any more damage that could happen to the car and myself, my friend [Witness A] was the driver.

  25. Afterwards another BBS monk raised his iron bar aiming at my head, which in turn I grabbed the iron-bar and beat one of the monk on his [body part] to defend myself. Then my friend [Witness A] who was driving the car yelled at me to get into the car, I swiftly got into the car and took off for protection; fortuitously my reactions, spur of that moment saved me from death.

  26. While driving away, I rang my uncle and explained the situation to him, since the car windscreen was broken; [Witness A] was uncomfortable with the road vision. My uncle advised me to leave the car at his house for him to sort out the car matter with the car owner, at this point I didn't even try to take a photo of the damaged car because I was not in a proper frame of mind as I fleeing for safety.

  27. Of course at the time of the incident, I was not contemplating on applying for a protection visa as I was in fear of my life. I have collected all evidence under difficult conditions to make a good supporting document as per the migration agents request.

  The rent a car

  28. During my protection visa interview my case officer asked me if I had any evidence of the car damage that occurred when I was attacked by the Buddhist extremist group (BBS).

  29. I gave my word to supply this evidence, but I was not given the chance to do so. I am now taking the opportunity to provide this evidence in my appeal procedure. The person whom I rented the car doesn't have an officially registered business; therefore it is difficult for me to provide all the details in relation to the damage to the car.

  30. On my trip to Sri Lanka in 2015 I needed a car to go around and then my uncle organized it through a rent a car person who is known to him. In Sri Lanka there are many people who has a rent a car business on a part time basis on small scale, for example like in Australia with Gumtree and facebook where they advertise on internet and do business from home. When I arrived in Sri Lanka after a couple of days my uncle introduced the rent a car person to me.

  31. I negotiated for a [Brand 1] 2013 or 2014 model car with an initial key money (bond) of Sri Lankan rupees 100,000 and then one week payment at the rate of Sri Lankan rupees 3,000 per day, at that point I told him that I may need the car for one month continuously, and then he requested for a copy of my Sri Lankan driving license which I gave to him. My driving license displayed vital details such as my name and proof of address.

  31. Though this car was rented for my personal and family use, I used it for election campaign as well as I didn't have any other choice.

  32. Afterwards "The rent a car" owner had informed my uncle, that the BBS group had gone in search of me to his house by noting the car registration number. The car owner had told my uncle that he had no choice but to give my details as per the copy of_my driving licence. He had also said to my uncle to inform me to take utmost precautions from the BBS thugs, as they were ferociously strong-minded to brutally harm me.

  33. True to his words the mob came to our ancestral family home while I was there, I promptly got into my mother's room and slid under her bed, sooner than any person could set an eye on me.

  34. At my protection visa interview the case officer questioned me two or three times as to where I was at the time BBS arrival in search of me at my mother's house. My unwavering and firm answer was "at my mother's house hiding under the bed in her room". It's at this point, pending case officers pointing out, that I realised the typing error in my previous statement, "which stated that I was not at home", this was an administrative error and I clearly explained that I was at my mothers house when the BBS came looking for me.

  35. My mother unassumingly affirmed that I was not at home; they reciprocated ruthlessly in an obnoxious manner and stressed, if they locate me, without hesitation they will guillotine me in front of my mother. Their strong statement gave me the shivers of life. Luckily my wife and my child wer 'at my mother in law's house at the time of this incident.

  36. Subsequently I got to know that this BBS group is an allied collaborator of ex-president Mahinda Rajapakse's Brother Gothabe Rajapakse. BBS are perpetrators of many criminal activities in Sri Lanka, still ably supported by some high-ranking government institutions. (I have provided substantial facts and evidence of the BBS atrocities committed to upset the wellbeing of Sri Lankan innocent Muslims in the past few years).

  37. The moment BBS left, I contacted my Brother-in Law who lives in [Town 4] which is about 60 kilometers away from [Village 1] (the place of incident). He invited my family to shift to [Town 4] as quickly as possible. Middle of that night we fled to [Town 4] and stayed at my brother-in-laws house ([at an address in Town 4]) from [that say in] August until 6thSeptember, 2015.

  38. On arrival at [Town 4], we visited the police station to lodge a complaint, for some reason the police officer was reluctant to put my grievance in record, but he politely counselled, recommended and advised me to get back to Australia as soon as possible.

  39. To my dismay, I couldn't change my flight ticket to return early to Australia, because I had a conditional return air ticket. Nevertheless rest of my holiday in Sri Lanka was spent in [Town 4] in an inconspicuous city and at that sadly confined to a house arrest like situation which made me and my family feel very depressed.

  40. After my return to Australia, the BBS thugs had been sighted by the villagers in around my mother's house on several occasions. My village is predominantly a Muslim populated village where people live in tremendous unity.

  Further threats to my family in Sri Lanka from the BBS.

  41. On March 07, 2018 - A major violence led by the BBS erupted in my village in Sri Lanka, the BBS attacked the people in my village, also damaged my mother's house and assaulted my loving brother unmercifully, I have supplied evidence of his injuries as part of my appeal.

  42. The BBS unrelentingly continued to threaten my mother and brother. They had endeavoured to set fire to my !other's house by means of using so called petrol bombs and they have psychically assaulted my brother.

  43. I have provided some photos and the village medical officer's report of my brother's sustained injuries due to the physical attack. The case officer at my protection visa interview mentioned the medical report written seems to be not genuine -At this juncture I would like to mention that a village medical officer of Sri Lanka has a limitation to written English also a medical certificate can be vary from country to country so therefore the medical report needs to be taken into context.

  44. Eventually my mother had to move out of the family home seeking for security and safety. I have provided a copy of my brother's passport to evidence that he is my legitimate brother. The case officer has stated that she is willing to accept that my family may have some physical harm however she is not willing to accept that the harm was related to the 2015 incident, this is incorrect opinion and as stated previously the BBS had been to my mother's house and continued to bother my mother by throwing stones to my mother's house.

  45. I would like to point out that the physical harm to my family was a significant and dangerous situation. My brother who I love very much was attacked by the same group of gangs who are hunting for me.

  46.The mentality of the BBS in Sri Lanka is well documented in all forms of media. Their main aim is to disrupt peace and harmony in communities and to cripple the economy of the country in order to topple the government and pave the way for their favoured political party to move stealthily into power. I have supplied evidence of this as part of my submission for this case.

  47. My case officer of the department of home affairs is suspicious of the police report submitted for the damage caused to my mother's house. Complaint to the police was made on [a date in] March and the actual investigation was made after ten days, precisely on the [later day] of March 2018 by the local area police officers and was certified on the same date.

  48. My family and I fully understand that this can lead to an imprisonment for a lifetime for fabricating documents from government authorities like police reports. Therefore, with a great deal of confidence we are happy for the department to go ahead and check to make sure all the documents are not bogus.

  49. I have updated the police report as advised by my current immigration lawyer, to certify the Sri Lankan police report and endorse witness by a Sri Lankan lawyer by visiting the police station in person. The updated police report is supplied as part of my appeal.

  50. My case officer was also skeptical with regards to the house title deed (legal document) of my mother (our ancestral home). In fact my Sri Lankan driving license which is 15 years old bears the same house address or my Sri Lankan national birth certificate which is [number] years from the time I was born bears the same house address which I believe would clear the doubt.

  51. As discussed at my protection visa interview, In 2004 I went to Colombo to take up a course in [subject 2] at [College 1] in Colombo. During that time I resided at my father's [business 1] premises based in Colombo and helped my father in his business part-time, I have verbally explained this to my case officer at the interview.

  52. In my protection visa application I have not revealed my stay in Colombo, This is largely because I considered it a short-term stay as a student, thinking this was inconsequential, that it's not pertinent to the query, I am more than happy to explain this to the member at the hearing if needed although I do not think this is practically relevant to my claim. Further to this I have attached a copy of my completion certificate for the course [subject 2] which I had undertaken in Colombo during this period of time to evident this statement is true and correct.

  The current security situation in Sri Lanka and how this would affect my life

  53. The present state of affairs prevailing in Sri Lanka is very treacherous, Sri Lankan Muslims face danger, menace, threat and their lives are at risk as the state turns a blind eye to BBS gangs. Gnanasera BBS Head, hard-line Buddhist monk who is accused of inciting violence against ethnic minority Muslims was convicted after the 2015 incidents, walked free from jail on the 21st May 2019 after a presidential pardon. His release comes a week after assaulting Muslim-owned homes, mosques and shops.

  54. Also he convinced one of his fellow monks in his gang to begin a fast (hunger strike) demanding the sacking of two Muslim governors and a minister. Subsequently under the directions of minister Rauf Hakeem (minister of water supplies and drainage facilities), [details deleted], a very well respected and the most senior Minister from the Muslim community, was of the view that all the Muslim ministers attached to the parliament must resign in order to evade a despicable act of violence, and they did so.

  55. In my opinion if I am forced to return to Sri Lanka with all these unforeseen events taking place, surely my life is at risk. I am 100% certain that the (BBS) group will go back to their extremism. I fear that now I am a target to the BBS group, I will be kidnapped, tortured or killed if was forced to return to Sri Lanka.

  56. I have a genuine real fear of persecution if I am forced to return to Sri Lanka and I humbly request the member in my case to please approve my protection visa for me and my family in order to live in Australia in peace and safety.

• GP referral letter for psychologist, dated 19 March 2018;

• Letter from [Psychologist A] regarding psychological counselling, signed and dated 12 April 2018;

• GP referral letter for psychologist, dated 2 March 2019;

• Letter from [Doctor A], regarding medication and psychological counselling, signed and dated 7 May 2019;

• Letter from [Doctor A], regarding medication and psychological counselling, signed and dated 18 July 2019;

• Letter from a lawyer in Colombo, Sri Lanka, regarding the police complaint made by the applicant’s brother on [a day in] March 2018, signed and dated 20 July 2019;

• Letter from [Psychologist A] regarding psychological counselling, signed and dated 15 August 2019;

• Copy of a police report from [Police Station 1], Sri Lanka, with English translation, regarding the complaint made by the applicant’s brother [in] March 2018.

1. On 30 August 2019 the applicant submitted to the Tribunal a letter from [Witness A] in support of the applicant’s protection claims, signed and dated 16 February 2019.[10]

   [10] Ibid Doc Id 6188775.

2. On 19 February 2020 the applicant submitted to the Tribunal a series of screenshots of social media posts, including photographs, of the applicant’s participation in bushfire relief activities in Australia.[11]

   [11] Ibid, Doc Id 7023004.

3. On 18 September 2023 the Tribunal sent the applicant an invitation to comment on or respond to information under s 424A of the Act.[12]

   [12] Ibid, Doc Id 11516476.

4. On 29 September 2023 the applicant’s legal representative submitted to the Tribunal the following documents:[13]

   [13] Ibid, Doc Id 11586887.

   ·Written legal submissions prepared by the applicant’s representative;

   ·Country information;

   ·Letter from psychologist [Psychologist A], signed and dated 28 September 2023;

   ·A series of social media posts regarding the applicant’s political activism in Australia;

   ·Witness statement by [Witness B], signed and dated 28 September 2023;

   ·Letter in support of the applicant’s protection claims, with English translation by [Witness C], dated 27 September 2023;

   ·Medical certificate from [Doctor A], dated 18 September 2023;

   ·Untranslated letter from the applicant’s mother.

5. On 2 October 2023 the applicant provided the Tribunal with the following statutory declaration, signed and dated 2 October 2023, in response to the Tribunal’s invitation to comment on or respond to information under s 424A of the Act:[14]

   [14] Ibid, Doc Id 11589952.

   Concerns raised by the Tribunal

   2. I came to Australia with great enthusiasm to pursue my studies and eventually return to Sri Lanka to assist my father in managing his [business 1], as previously stated in my earlier statements.

   3. Upon my arrival in Australia in 2007 as a student visa holder, I was enrolled into an English language course which was completed within six months. Once this was completed, I was enrolled in a Certificate Ill in [subject 1] and a [course 1]. This was to be completed at [College 2]. This was to enable me to study for a [course 2]. The above studies were included in my 4-and-a-half-year student visa grant.

   4. I successfully completed the English language course. As I began studying for my Certificate Ill in [subject 1], I had unfortunately failed several units for not being able to complete my computer assignments satisfactorily.

   5. While excelling in my practical assessments, I faced significant challenges when it came to using a computer to complete my written assessments. While I was completing my primary and secondary education in a village school in my hometown, I had no access to computers and all our studies were conducted in handwritten formats. This limited exposure to computers resulted in me failing many of the computer assessments in this Certificate, which led to the [agency] intending to cancel my enrolment. As a result, I had never commenced studies on the [course 1] nor my [course 2].

   6. After a year of enduring this challenge and being told that my enrolment for my Certificate Ill was likely to be cancelled, I sought advice from friends and consulted migration agents to explain my situation. The migration agent assured me that there were alternative colleges and courses where handwritten assignments were accepted. Knowing that I had to find a new course to enroll in, I reluctantly enrolled in a [Course 3], knowing that it was not aligning with my intended goals back home. I had enrolled into the course without informing my father, despite my father being the person who was financially supporting my education. This Diploma was a two-year course. It was only after about a year and a half, I had to confess about the change in course to my father. At this point, my father had told me that he was going to stop funding my studies if I was not going to study a [business 1] related course. During this period, I had purchased a personal computer and began self-learning some computer skills through online resources.

   7. It was on 7 September 2009 that I had received a notice of intention to cancel of my student visa as the college where I was studying the [Course 3] had informed the Department that I had ceased my enrolment with them. This occurred as I was trying to acquire my records of my completed units in this Diploma, however the [agency] had refused as they demanded additional fees to release the transcripts and certificates. In response to the notice from the Department of Home Affairs, I submitted a written statement explaining why my student visa should be revoked. I also attended an interview with a Home Affairs member to further clarify my circumstances. During the interview, I was informed that the department was aware of the college's questionable reputation and was advised to enroll in a different institution, requiring a new Confirmation of Enrolment (CoE). However, I chose not to return to this college and was unable to obtain my Statements of Attainment. This period has been an unfortunate waste of my time and my father's financial resources, spanning approximately three to four years. I wish to emphasise that I never intended to exploit the Australian visa system to prolong my stay in the country. My sincere commitment was to complete my studies and fulfill my duty to support my father in managing his [business 1] in Sri Lanka, in accordance with his wishes.

   8. Following the Department of Home Affairs' recommendation to obtain a new Confirmation of Enrolment, I sought assistance from a migration agent as I was uncertain about the enrolment process. While expressing my desire to study [subject 1] leading to [course 2], the migration agent mistakenly enrolled me in the wrong course. From my recollection, I am uncertain whether the agent had mistakenly enrolled me into a [unrelated courses] or not. However, upon reviewing my PRISMS record, I believe this might have been the case, despite the PRISMS record not stating the order of which the enrolments had taken place. After I raised this issue with the migration agent, they acknowledged the error and subsequently enrolled me in the courses that aligned with my initial intentions, including Certificate Ill in [subject 1], Diploma of Management and a [Course 4]. I completed my certificate Ill and Diploma of Management in 2012 and my [Course 4] in 2014.

   9. I then applied for a further student visa in 2014 as I have now completed the above courses and had wanted to complete my [Course 5] which would then lead into commencing my [course 2]. My migration agent at the time had advised me assisted me in lodging the application for an [Course 5] and Bachelr of Business. I was advised at the time that once the visa has been granted; I can change my [course] to [course 2]. Despite being unsure, I followed her advice.

   10.These events underscore my genuine intent to pursue a career in [the business 1 field] and to fulfill my father's wishes regarding his [business 1] in Sri Lanka. I did not misuse the Australian visa system and would like to clarify my intentions to study and return to Sri Lanka was genuine, despite the issues that had arisen with my course enrolments while I was holding my student visas. However, after the events of 2015, my family and I had a genuine fear in returning to Sri Lanka and this resulted in our application for protection in November 2015.

   Consideration of the claims and evidence

6. The determinative issue in this case is whether the Tribunal accepts the applicant engaged in political activity in Sri Lanka in 2015 that caused a risk, which constitutes a real chance of serious harm for a reason, or combination of reasons, specified in s 5J(1)(a) of the Act, if the applicant is removed to Sri Lanka now or in the reasonably foreseeable future.

7. The Tribunal will now consider this issue.

8. On 18 September 2023 the Tribunal made a written request of the applicant to provide more information about his reasons for applying for a Student visa, and after a passage of about 8 years, applying for a Protection visa. The request was made in conformity with s 424A of the Act.[15] The applicant provided a statutory declaration dated 2 October 2023. His response has been reproduced at paragraph 57 in these Reasons.

   [15] Ibid

9. In the context of explaining the gaps in his studies, the applicant asserted it was always his intention to return to his family in Sri Lanka and to make his life there with his wife, children and extended family.

10. In substance the applicant asserts he was a genuine temporary entrant as a student in Australia until he was involved in a melee in Sri Lanka on [a day in] July 2015, during a family visit with his wife and infant child who was born in Australia.

11. To summarise the applicant’s case: during his hometown visit he was contacted by his old friend [Witness A], a long-term political activist motivated to advance the interests of the Muslim minority in his home country.

12. Both the applicant and [Witness A] share the opinion that significant Sinhalese Buddhist leaders and organisations in Sri Lanka propagate faith-based animosity and intolerance of persons who comprise the Muslim minority in their home country.

13. Relevantly, the DFAT Country Information Report for Sri Lanka (December 2021) (DFAT report) states ethnic Sinhalese comprise 75 percent of Sri Lanka’s population, and Muslims comprise 9 percent. Seventy percent of the population, mostly Sinhalese, practise Buddhism: paragraphs [2.6]–[2.7].

14. According to the written and oral evidence of [Witness A], he is a citizen of Sri Lanka, and for business reasons, he resides in [Country 1]. He is an active supporter of [Official A] of the United National Party (UNP) and a leader of the [Association 1]. Whenever there is an election in Sri Lanka, he returns from [Country 1] to assist [Official A] and the UNP.

15. In [Country 1], [Witness A] owns and operates [a named business in Country 1]. Additionally, the witness provided his contact telephone numbers and email address in [Country 1]. The main activity of his business is [specified]. His business also sells [products] in [Country 1].

16. The witness asserts that he supports [Official A] politically because he is a champion of equality for Muslims and ending religious discrimination. He also supports [Official A] because he provided business advice and financial support to the witness, which enabled him to establish his business. Additionally, [Witness A] is loyal to and supports [Official A] because his father worked as his subordinate from 1998 to 2019.[16]

    [16] Tribunal file, Doc ID 6188775

17. To summarise, the applicant asserts he was contacted by [Witness A], an old friend of his, to assist in the running of [Official A’s] election campaign. He agreed.

18. In 2015 the applicant was angry about the way Sinhalese religious leaders and supporters were targeting areas where Muslims lived and violently attacking members of those communities. In this respect the evidence of [Witness A] supports the applicant’s evidence, and it is consistent with information in the DFAT report about escalating religious tensions between the Buddhist Sinhalese majority and Muslims.[17]

    [17] DFAT report [3.27]

19. The DFAT report states religious tensions between Buddhists and Muslims have risen since the protracted civil war waged by the Liberation Tigers of Tamil Eelam (LTTE) ended in May 2009 with the comprehensive defeat of the LTTE,[18] most especially since the 2019 Easter Sunday terrorist attacks (which were reported in the international media), but also earlier in 2014 and 2018.[19] Extremist Buddhist groups such as the Bodu Bala Sena (BBS) (Lion’s Blood),[20] have targeted the Muslim community, including through social media.

    [18] Ibid [2.2] and [3.27]

    [19] Ibid [2.25]

    [20] DFAT report [3.18]

20. While freedom of expression in Sri Lanka 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 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.[21]

    [21] Ibid [3.25]–[3.31]

21. In the latter statement DFAT seems to accept there have been recent acts of violence against Muslim communities by Buddhist extremists. The negative statement by DFAT, that it is unaware of instances of Muslims being attacked by Buddhist extremists, and not receiving adequate state protection, seems to suggest, that during and in the aftermath of violent attacks of this nature, DFAT is unaware of the state failing to intervene to contain instances of religious communal violence.

22. The applicant submitted in support of his visa application an online news article titled ‘Hardline Buddhists attack Muslim towns in Sri Lanka’ published by the Toronto Star on 13 November 2015.[22]

    [22] Department file [number], Doc ID 4248646

23. Returning to the applicant’s circumstances in August 2015. The applicant said, at the invitation of his friend [Witness A] he became closely involved with [Official A] and his electioneering. The applicant provided a series of photographs which he asserts depict him with [Official A] and other individuals who appear to be engaged in various meetings.[23]

    [23] Ibid, Doc ID 4248647

24. The applicant’s evidence is supported by the evidence of the witness [Witness A], who said he found the photographs when he searched his photo gallery for relevant photographs. He indicated that he made the photographs available to support the applicant’s visa application. He said the photographs depict the applicant, [Official A] and others during the election campaign. These photographs were supported by a Facebook image dated [in] August 2015 depicting the applicant and other persons at a UNP meeting wearing what appears to be the colours of the party.[24]

    [24] Tribunal file, Doc ID 6188616

25. The applicant asserts the direction of his life changed in 2015. At that time, he was driving a rented [Brand 1] motor car he was able to obtain, through an introduction made by his uncle, [Witness B], a witness in these proceedings, to the person who rented the car. According to the applicant rental cars were difficult to obtain at that time, and the influence of contacts could be necessary to get access to such vehicles.

26. In evidence the applicant said he used the hire car for personal travel and for transport during the election campaign.

27. The applicant asserts that he used the car to travel and campaign with [Witness A] and others around [Village 1], being the applicant’s home village, and where his family home is located, to canvass votes for the Muslim candidate [Official A]. Groups supporting the BBS were active in the area. They were threatening to do violence to Muslims living or campaigning in the area of the village.

28. The applicant was driving the hire vehicle as part of a convoy of vehicles carrying Muslims campaigning for [Official A], when they were stopped by a group of BBS supporters led by a person with a clean-shaven scalp and dressed in the attire of a Buddhist Monk. People in the group were armed with wooden rods, steel rods, chains and other weapons. They were abusive and demanded everyone in the cars cease campaigning. The BBS group smashed the windscreen and damaged the body of the hire car. The applicant left the car during the attack, seized a steel rod from one of the BBS supporters and, he says, acting to protect himself and his passengers, and the hire car from further damage, he struck the Monk who seemed to be leading the BBS group. The applicant described his actions as bashing the Monk’s [body part] area with the rod. The applicant and his vehicle escaped the mob in the midst of the confusion and distraction caused by what he did to the Monk.

29. According to the applicant and the witness, [Witness A], the Buddhist community revere their religious leaders and to disrespect a Monk in any circumstance is taken to be a grave offence. This evidence accords with the natural course of human experience.

30. The applicant says he thought he escaped without trace, but he was wrong. He was surprised to learn the next day a Buddhist Monk with several supporters presented themselves at his mother’s home. They demanded to know where they could find the applicant. His mother refused to reveal his whereabouts.

31. The following day the applicant, his wife and child hid in a relative’s home, and later departed the country after they were able to rearrange their flights.

32. The applicant relies on the evidence of his uncle, [Witness B] of [an address in Country 2]. [Witness B] provided a detailed, signed witness statement to the Tribunal. The statement was dated 28 September 2023. The witness gave oral evidence to the Tribunal from [Country 2]. He has been teaching and residing in [Country 2] since 2019, he is a [Country 2] citizen.

33. [Witness B] stated in his detailed witness statement, and at hearing, that he was in Sri Lanka at the time his nephew, the applicant, was there on a family visit. [Witness B] arranged for a friend, [Friend A], who hires motor cars, to rent a car to the applicant. After a short period, the applicant, and his friend, [Witness A], referred to in his evidence as [a variant name of Witness A], arrived at his home in a distressed state. The hire car was in a damaged condition.

34. The applicant and his friend explained that while they were canvassing for the election there had been violence with members of the BBS. He told the applicant and [Witness A] to leave the car and he would take care of it. He did not want any more trouble with the BBS group.

35. [Witness B] asserts he arranged for his friend [Friend A] to pick up the car. This was done on the same day the car was left with him. The next day his sister, the applicant’s mother, and his nephew, the applicant, told him in a telephone call that some members of the BBS had been at the house and behaved badly.

36. [Witness B] said in his written statement and oral evidence, he knew his nephew and his family returned to Australia after the events of 2015, and that he applied for a Protection visa. In 2018 he learnt the application was refused. About that time the applicant asked him to obtain from his friend, a report from the car insurer to verify that the car was damaged when it was returned in 2015. The friend, [Friend A], refused to be involved in the matter. But he did tell [Witness B] that several extremists came to his house in 2015 the day after he collected the car.

37. [Witness B] also gave written and oral evidence that in March 2018, he was living at [an address in Town 5], Sri Lanka. This address is about 5 kilometres from his sister’s house. At that time his sister, the applicant’s mother, reported that members of the BBS group were at her house. Her son, the applicant’s younger brother, had been assaulted. [Witness B] drove to the house; his nephew needed medical treatment and he drove him to a medical clinic where he was treated for what the Tribunal understands to be relatively minor injuries. For reasons of safety, he moved his sister and nephew to his address in [Town 5].

1. The applicant’s mother, [Mother A], provided to the Tribunal a signed statement with the date 20 February 2019, translated into English by a certified translator.[25] This statement is consistent with and supports the applicant’s evidence, about the events in 2015 and the aftermath of those events.

   [25] Ibid Doc ID 6188775

2. Relevantly, [Mother A] said she urged her son to stay clear of political activity while he was visiting her. From her own knowledge she asserts the BBS have not forgotten what her son, the applicant, did to the Buddhist Monk. A few months after the applicant left Sri Lanka late at night, people threw stones and were shouting out at her house. She was afraid to look outside; she suspects they were part of the BBS, but she recognises in her statement that her suspicion is not concrete evidence.

3. [Mother A] also states that on [a day in] March 2018, the BBS group attacked the village in which she lived. Many houses and shops were set on fire, and the attack disrupted the entire village. On that day members of the BBS also attacked her house, threw stones and other objects at it, and damaged water down pipes. Her second son, [Brother A], tried to record the attack on his phone, only to be assaulted. She then describes the role played by her brother, [Witness B], which, in substance was consistent with his evidence.

4. The government publicly urged any person adversely affected by the attack on the village to report their circumstances to the police. [Brother A] reported to police and a translated copy of a document said to be an official police document verifying the incident was reported to police and is under investigation.[26] According to [Mother A] police inspected her house [in] March 2018. There is no evidence of the investigation making any further progress.

   [26] Ibid Doc ID 6188686

5. The Tribunal heard evidence from [Witness C], of [an address in Town 6], Sri Lanka, phone number and area code provided. [Witness C] also made a signed statement with the date 29 September 2023; it is part of the evidence before the Tribunal.

6. [Witness C], somewhat apologetically, explained in her written statement that she had to write her statement in Tamil, and have it translated ‘due to my poor knowledge of English language.’ She then wrote, to her credit, if there were any further questions to telephone her on the number provided.

7. [Witness C] stated in writing that she was able to give evidence about events that occurred at her neighbour’s house, situated at [a neighbouring address in Town 6]. Her neighbour [Mother A] asked her to explain to the Australian Embassy what she knew about the behaviour of members of the BBS at her house.

8. [Witness C] has known [Mother A] for 50 years and her two sons since they were born.

9. According to [Witness C’s] written and oral evidence, she witnessed the 2018 attack on [Mother A’s] house. She knows from her own observations that [Mother A’s] second son was physically injured, and the house was damaged. She saw that some of the attackers were dressed in orange clothing. She later described the clothing to her husband, and he said the attackers were part of the BBS group. [Witness C] said her neighbour’s house has not been occupied since the attack in 2018.

10. [Witness C] gave evidence that on several occasions she observed groups of people who appear to be BBS people, looking at the house and she believes they were checking on who may be living there.

100.   [Witness C] gave detailed evidence about what she experienced about 6 or 7 months ago at [Mother A’s] house. She was gardening in the front of her house when she saw a small group of people at the front of [Mother A’s] house. There was aggressive knocking on the front door. They threatened [Witness C], and accused her of lying, when she said she did not know where they could find her neighbours. The aggressors remained around the neighbouring property for about 20 minutes, and then left. [Witness C] told [Mother A] about the incident; evidently, she was reporting back to her friend [Mother A], about untoward events at her house.

101.   The DFAT report and country information provided by the applicant’s representative to the Tribunal, may be relevantly summarised as reporting that hostility between Sinhalese Buddhist extremist groups, including the BBS, continues to be a significant concern in Sri Lanka.

102.   The DFAT report states the Rajapaksa Government supports its Buddhist Sinhalese voter base by engaging in religious polarisation, including by supporting extremist Buddhist groups, of which the BBS is the most prominent. The BBS was founded in 2012 and it has engaged in acts of violence and hate speech against religious minorities, particularly Muslims.[27]

[27] DFAT report [3.17]–[3.20]

103.   There is no evidence or country information available to the Tribunal, that demonstrates the present government leadership, a small number of which were recently appointed after the resignation of the Rajapaksa brothers, who, as a matter of international media reportage and common knowledge, dominated the Government of Sri Lanka during the civil war with the LTTE, until their resignations in 2021 and 2022, is actively and systematically discouraging and deterring discrimination against religious minorities, and diminishing Sinhalese Buddhist extremist groups such as BBS.

104.   The applicant contends, because of using a steel rod to bash a person with the status of Sinhalese Buddhist Monk and leader of the BBS, despite acting in self-defence of himself and others, he is now a Muslim categorised by Sinhalese Buddhists affiliated with the BBS, as an enemy of Sinhalese Buddhists. Consequently, he has been targeted by the BBS, and the BBS harbours a present and continuing intention to harm him.

105.   Essentially, the determination of the application for protection depends, as a threshold issue, on whether the Tribunal accepts as sufficiently reliable the evidence of [Witness A], [Witness B] and [Witness C].

106.   The applicant’s claim is not dependent on accepting that extremist Sinhalese Buddhist groups, including the BBS, pose a significant risk of harm to him because he is a Muslim. His claim for protection is specific. It is dependent on the evidence being sufficient to establish to the satisfaction of the Tribunal, that the applicant faces a present and continuing threat by the BBS to harm him.

107.   Having considered the oral evidence given by each of the three witnesses separately, and in conjunction with the applicant’s evidence and the country information referenced, and in part, discussed in these Reasons, the Tribunal finds their evidence to be sufficiently reliable to be treated as evidence that is relevant to and materially supportive of the evidence relied on by the applicant to establish the BBS intends to harm him.

108.   The DFAT report generally, and, the parts of the report discussed in these Reasons, indicate the BBS is an influential extremist Buddhist organisation, likely to have a widespread network of supporters in government and the Buddhist Sinhalese population in Sri Lanka.

109.   On balance, the Tribunal is satisfied any risk of harm posed to the applicant by the BBS relates to all areas of the country to which it would be practicable for the applicant to relocate with his wife and two young children, for him to travel to, and to provide shelter for his family and to subsist.

110.   Given the genesis of the threat to the applicant largely arises from his past actions, the issue of behaviour modification by the applicant to obviate the risk of harm does not arise on the evidence.

111. Having considered the applicant’s claims individually and cumulatively, the evidence, considered as a whole, and in combination with the country information before the Tribunal, is sufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subjected to serious harm for reasons of his religion, combined with his political opinion about official discrimination against Muslims, being reasons that meet the provisions of s 5J(1)(a) of the Act, if he is removed to Sri Lanka now or in the reasonably foreseeable future. Accordingly, the applicant satisfies the criterion in s 36(2)(a) of the Act.

112.   The Tribunal is also satisfied religious and political reasons combined, constitute the essential and significant reason for the real chance of persecution faced by the applicant, and that the persecution would involve systematic and discriminatory conduct by the BBS.

113.   Consequently, the Tribunal is satisfied the applicant has a well-founded fear of persecution for a combination of reasons specified in s 5J(1) of the Act, namely reasons of religion and political opinion, and that the applicant meets the definition of refugee as set out in s 5H of the Act.

114. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

115. 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 and satisfies the criterion set out in s 36(2)(a) of the Act.

Membership of the same family unit

116. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa) of the Act. However, the Tribunal is satisfied that: [Applicant 2] is the wife of the first named applicant, and that [Applicant 3] and [Applicant 4] are the children of the first and second named applicants; that each of the applicants reside together; and, that the second, third and fourth named applicants are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i) of the Act. As such, the fate of their applications 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) of the Act, and the remaining criteria for the visa are met.

DECISION

117.   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.

Peter Haag
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.

…