1914012 (Refugee)

[2023] AATA 2277

1914012 (Refugee) [2023] AATA 2277 (17 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Roz Germov

CASE NUMBER:  1914012

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Sheridan Lee

DATE:17 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 17 May 2023 at 11:21am

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – Federal Circuit Court remittal – race – mixed Tamil/Sinhalese – religion – conversion to – state protection – anti-Muslim sentiment – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5H, 5J, 36, 65
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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicants are [an age]-year-old woman and her [age]-year-old son. They are both citizens of Sri Lanka. [The first applicant] first arrived in Australia [in] June 1999 on a [Tourist] visa. She departed and returned to Australia on six occasions until her most recent entry [in] December 2004.

3. [The second applicant] was born in Colombo, Sri Lanka and first arrived in Australia with his mother [in] March 2003 and stayed for three weeks. He visited once again [from] June to July 2004. His most recent arrival was [in] December 2004 when he was [age]. He has remained in Australia since that time.

4. The applicants first applied for protection on 25 January 2005 as dependants of [Mr A]. [Mr A] was the husband of the applicant, and he is the father of the applicant’s son. That application was refused and went through a number of merits and judicial reviews until the High Court dismissed an application for special leave to appeal on the papers [in] June 2008.

5. The applicants made their own application for protection on 24 October 2013. [The first applicant] changed her relationship status to separated with the Department at that time, however the couple separated sometime earlier. The application for protection was refused by a delegate on 10 February 2015. The applicant applied to the Tribunal for merits review of that decision and on 23 August 2017 the Tribunal (differently constituted) affirmed the decision under review.

6. The applicants applied to the Federal Circuit Court for judicial review and [in] May 2019 the application was remitted to the Tribunal by consent. It was agreed that the Tribunal erred in not considering [the first applicant]’s claims under the Refugees Convention in addition to the complementary protection provisions and by not considering [the second applicant]’s claims in his own right.

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

   CLAIMS AND EVIDENCE

8. The applicants appeared before the Tribunal on 15 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister, [named].  

9. [The first applicant]’s evidence at the Tribunal hearing was clear and consistent with her submissions and evidence provided to the previous Tribunal.

10. [The first applicant] was born in Kandy, Sri Lanka. Prior to moving to Australia, she lived in Colombo and worked as [an Occupation 1] for [Employer 1]. The applicant was born into a Sinhalese family and originally considered herself to be Buddhist. She converted to Islam in 1996. The applicant is fluent in English and Sinhalese.

11. [The first applicant] met [Mr A] in 1994 when they were both working in the [same] industry. [Mr A] is a Tamil Muslim. The couple married [in] December 1997 in a Muslim ceremony at a Colombo Mosque. The applicant was [Mr A]’s second wife. Polygamous marriage is permitted in Sri Lankan law under the Muslim Marriage and Divorce Act 1951 (Sri Lanka).

12. The marriage was not readily accepted by either family. [The first applicant] lost contact with [some] of her siblings as a result of the relationship. Her [sister] remained in contact with her and has provided support to [the first applicant] and [the second applicant] at various times. [The first applicant]’s father passed away in [year] and her mother in 2003.

13. [The first applicant] and [the second applicant] moved to Australia in 2004. A few months later, [Mr A], his first wife and their [other] children also travelled to Australia. [The first applicant] and [the second applicant] lived in a residence close to where [Mr A] lived with his first wife, [Ms A]. [Mr A] continued both relationships until he and [the first applicant] separated in 2007.

14. [Mr A], [Ms A] and their [children] returned to Sri Lanka in 2013 when their appeal options had been exhausted in Australia. At the Tribunal hearing, [the second applicant] gave evidence that his half-sister continues to live in Australia. He told the Tribunal that he speaks to his father from time to time. They don’t have a close relationship but wish each other happy birthday and contact each other for Ramadan.

15. [The second applicant] completed his schooling up to [level] in Australia. On the date of the Tribunal hearing, he was employed as an [Occupation 2] at [Employer 2]. [The second applicant] is fluent in English and does not speak Sinhalese or Tamil.

16. Despite the breakdown of the relationship between [the first applicant] and [Mr A], I accept that she continues to follow the Islamic faith. I further accept that [the second applicant] was raised as a Muslim and the family practice Islamic traditions such as eating halal, observing Ramadan and ṣalāt in accordance with the pillars of Islam.

17. At the Tribunal hearing, [the first applicant] gave evidence that if she returned to Sri Lanka, she would dress in a more conservative style than Western dress in accordance with Islamic practice in that country. I accept that she would be identifiable as a Muslim based on her style of dress. I also note that both [the first applicant] and [the second applicant] have names that are commonly used amongst the Muslim community.

18. In submissions dated 12 April 2023, the claims were summarised by the representative as follows:

    “[The first applicant] and [the second applicant] fear both serious and significant harm based on:

    ·their Muslim religion and the hostility towards Muslims in Sri Lanka;

    ·[the first applicant’s] status as a now [age] year old female Sinhalese convert to Islam who is without male protection or family support in Sri Lanka;

    ·[the second applicant’s] mixed ethnicity because he is half Sinhalese and half Tamil; and

    ·The Sri Lankan State’s inability and unwillingness to offer effective protection against religious, racial and sex discrimination because of entrenched prejudice against Muslims, Tamils and women as well as lack of necessary resources due to the economic crisis in Sri Lanka”

    RELEVANT LAW

19. 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, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

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

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

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

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

23. In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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.

    ANALYSIS AND FINDINGS

24. The Department of Foreign Affairs and Trade (DFAT) reports that ethnic Sinhalese constitute 75 per cent of Sri Lanka’s total population, with Tamils at 15 per cent, followed by Muslims at 9 per cent. Muslims in Sri Lanka are considered to be both an ethnicity and a religion.[1]

    [1] Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 23 December 2021.

25. The Constitution of Sri Lanka provides for freedom of religion, including the freedom to change religion. The Constitution also provides for freedom of public and private worship. However, Article 9 of the Constitution grants Buddhism a ‘foremost place’ and obligates the state to ‘protect and foster’ Buddhism while protecting the rights of religious minorities. Sri Lanka recognises religious holidays for Buddhists, Hindus, Muslims and Christians. DFAT assesses that, while laws or official policies generally do not discriminate on the basis of religion, adherents of religions other than Buddhism face a low to moderate risk of official discrimination from government authorities, which can affect their ability to build places of worship, seek recourse for religiously-motivated attacks, and practise their faith freely.[2]

    [2] Ibid.

26. I accept that extremist Buddhist groups, such as the Bodu Bala Sena, have targeted the Muslim community in the past. Social media was utilised to spread negative commentary against Muslims and other minorities, particularly following the Easter bombings perpetrated by local Islamic groups in 2019. Buddhist extremists 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. DFAT was not aware of any recent acts of violence that resulted in a lack of state protection at the time of the report in December 2021.

27. I accept that Muslims in Sri Lanka experience some official and societal discrimination. I further accept that Buddhist extremist groups exist and operate in the country and protection against those groups from Sri Lankan authorities can be inadequate. Nevertheless, I do not accept that being Muslim in of itself would present a real chance of serious harm in Sri Lanka. In the current case however, [the first applicant] would face additional risk as a Sinhalese convert to Islam and a woman who has separated from her husband.

28. A 2020 study of Muslim converts in Sri Lanka,[3] highlighted by the applicant’s representative in her submissions of 12 April 2023, found that Muslim converts experience several socioeconomic problems including separation from family and relatives, language problems and financial issues. The authors concluded that “Muslim converts are the most vulnerable people in the Muslim community”. They do not receive financial help, including Zakat from ‘traditional Muslims’.

    [3] Ahamed Sarjoon Razick et al: “Problems Faced by Muslim Converts in Sri Lanka: A Study Based on

    the Anuradhapura District”, Journal of Politics and Law; Vol. 13, No 3; 2020

29. I accept that neither [the first applicant] nor [the second applicant] speak Tamil, which is the language commonly used amongst Sri Lanka’s Muslim population. While I acknowledge that many Muslims can speak English, the language barrier would make it more difficult for the applicants to integrate into the Muslim community. Coupled with [the first applicant’s] Sinhalese ethnicity and [the second applicant’s] mixed Sinhalese-Tamil ethnicity, it would increase the difficulties faced by the applicants on return to Sri Lanka.

30. It may be that considered individually, none of these factors clearly indicate the applicants would face a real chance of serious harm if they returned to Sri Lanka. However, considered cumulatively, I cannot discount as remote that they would result in the applicants being targeted because of anti-Muslim sentiment or negative views towards Muslim converts, compounded by a lack of support or protection from authorities, the Sinhalese or the Muslim communities. In the circumstances, I cannot discount the possibility that the applicants would face a real chance of serious harm if they returned to Sri Lanka.

31. For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s 36(2)(a).

    DECISION

32. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.