1919266 (Refugee)

[2024] AATA 4216

1919266 (Refugee) [2024] AATA 4216 (23 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Nilesh Sanjeev Nandan (MARN: 0104983)

CASE NUMBER:  1919266

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Kylie Allen

DATE:23 August 2024

PLACE OF DECISION:  Sydney

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 23 August 2024 at 2:23pm

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – particular social group – wealthy Muslim businessman – race – Tamil – religion – Muslim – kidnapping – physical assault – extortion – fear of killing – suspected connection to 2019 Easter bombings – communal violence – state protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 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 8 July 2019 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 16 January 2018. The delegate refused to grant the visas on the basis that the applicants were not owed protection.

3. The applicants appeared before the Tribunal on 6 August 2024 to give evidence and present arguments in relation to their claims. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

4. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

   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-LA, which are extracted in the attachment to this decision.

   Mandatory considerations

9. 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

10. The issue in this case is whether the applicants are owed protection. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

11. The applicants claim to fear serious harm on their return to Sri Lanka as a result of the first applicant’s profile as a wealthy Muslim businessman. They have asserted that he has a unique profile due to the problems he had with a group of extortionists prior to his departure which has been exacerbated by tensions in the wake of the 2019 Easter bombings in Sri Lanka. The applicants provided an extensive amount of evidence in support of their claims, which for clarity I have summarised below.

    Information before the Department

    Protection visa application and statement 1

12. The applicants arrived in Australia [in] December 2017 and made a protection visa application as a family on 16 January 2018. That protection visa application included both a form and a statement by the first applicant on 14 January 2018 and documentation. The first applicant’s claims include the following:

    ·He was born in [specified year] in Kandy, Sri Lanka and is a Sri Lankan Muslim Tamil. He married his wife in 2000. They have [3 children]. They were all born in Sri Lanka. He provided copies of their Sri Lankan passports, marriage and birth certificates. He and his family lived and worked in [Town 1] in central Sri Lanka.

    ·He took over his father’s [business 1] in 2000 and as a wealthy Muslim businessman was required to make extortion payments to a Sinhalese group headed by a local [official] called [Representative A]. Initially he was paying [amount] LKR a month but this escalated to [amount] LKR a month and he got behind on his payments. He feared his family would be killed as a result. He eventually closed down that business and started his own business. He provided business documents.

    ·He was harassed by [Representative A’s] group and blamed for small matters to put pressure on him and his family to pay them more money.

    ·In 2016 and 2017 young Muslim men employed in his business started relationships with Sinhalese girls and he was blamed for that. On [a day in] July 2017 he was abducted and beaten because of this. He was told by a member of the group [Mr A] to keep paying his arrears if he wanted to stay in his town. The applicant elaborated on the attack which took place [in] July 2017 during which he was beaten. The applicant detailed [an] injury which still persists, and noted that his attackers made threats of a sexual nature against his wife and teenaged daughter.

    ·In [2017], the body of [Mr A] was found dead outside his home. He did not disclose the extortion to police in case he was implicated in that death. He said he only knew him from his shop. He provided photographs of the scene where a man was killed and the body found near his house.

    Statement 2

13. On 3 May 2018, the applicants’ representative from the Refugee Advice abd Casework Service (Aust) Inc. (RACS) provided a supplementary statement from the first applicant. It included the following claims.

    ·In April or May 2017, a man from [Representative A’s] group came to his shop to collect money that they extorted from him and overheard a man asking for ‘tablets’ which were popular muscle building supplements. Several days later, people from [Group 1], came to his shop and threatened him because they said he was selling sterilisation tablets to sterilise Sinhalese.

    ·When he was abducted and beaten they hit [him] very hard with a stick which caused serious and lasting [injury]. He has sought medical assistance for this injury in Australia and attached medical documents which state that he has [this] injury.

    ·When he was abducted the Sinhalese people made offensive comments about harming his wife and daughter if he did not pay their demands. He fears the group will hurt or kill his family.

    ·In March 2018, there were violent anti-Muslim riots in Ampara and the Kandy District in central Sri Lanka. In Kandy, mobs of Sinhalese Buddhists attacked Muslims and mosques and other property. They set fire to Muslim homes, shops and cars. There was also a lot of anti-Muslim content shared on social media and the internet during this time. There have been other similar anti-Muslim attacks in central Sri Lanka and throughout the country in recent years. He fears he will face violent attacks because he is a Muslim.

    ·[Representative A] is now [in an important position] in the [Town 1] local authority and has more power. [Details deleted.]

    ·His [Relative A] was killed in [Town 2] in May 2017. He was a successful Muslim businessman who was extorted throughout his life by Sinhalese gangs. He was killed because he started to refuse to pay the extortion gangs the large sums of money they demanded.

    Protection visa interviews

14. On 19 February 2019 the first and second applicant attended protection interviews with the Department to discuss their claims. At those interviews they reiterated their claims for protection. During those interviews, the second applicant raised claims to fear harm for her eldest daughter on the basis of being a Muslim woman associated with the first applicant.

    Post interview submissions and statement 3

15. On 5 March 2019, the applicants’ representative from RACS provided post-interview submissions reiterating the applicants’ claims and responding to concerns raised by the delegate at the protection visa interview. That submission included the following information.

    ·[In] August 2017, the first and second applicants went to [Country 1] where they intended to apply for refugee status and then sponsor their children. The children were in Colombo staying with a relative. While they were away, their shop was visited by thugs and they decided they should return for the safety of their children.

    ·On his return from [Country 1] the first applicant continued to pay [Mr A] and then later moved to Colombo and applied for visas for whole family to come to Australia. While in Colombo he was visited by [Mr A] and [number] associates.

    ·[Later in] 2017, [Mr A] was found killed in front of his shop. The first applicant was questioned by police but let go and later departed Sri Lanka.

    ·He continued to support himself by selling his shops in Sri Lanka [details deleted].

    ·His father is still being approached by people looking for him.

    ·In response to the delegate’s concerns, the first applicant had not liquidated his assets to pay extortion demands because these demands were not for a fixed amount like a debt but were determined at the whim of his harassers.

    ·There is evidence that police are often complicit in, or at least condone, attacks on Muslims by Sinhalese Buddhists.

    ·The first applicant spent time in [Country 2] between selling his father’s business and starting his own in [Town 1]. Initially he did not mention his time in [Country 2] in the protection application or interview as he was advised not to by a previous agent.

    ·Submissions on country information about tensions between Muslims and Buddhists, comments on the DFAT report, inability to relocate and unavailability of state protection.

    ·Statement 3 from the first applicant dated 27 February 2019 which included the following information:

    -    More explanation as to why he did not seek asylum in [Country 1].

    -    He spoke to his father on 26 February 2019 who advised him that Sinhalese people were still looking for him and that he heard this from his sisters who were still living in [Town 1]. Some people still suspect he is living in [Country 3] where he worked for a period of time setting up goods to export for his shop.

    -    He can easily be located anywhere in Sri Lanka due to social media and traditional social networks and gossip.

    -    He fears police may try to frame him for [Mr A’s] death.

    ·Medical evidence in support of his claim he has a [specified] injury.

    -    A copy of a medical certificate dated 29 March 2018

    -    A copy of a radiologist’s report dated 26 March 2018

    -    A copy of a letter to [Hospital 1] dated 9 April 2018

    -    Copies of two letters from [a named doctor] dated 21 February 2018 referring the applicant for opinion for anxiety and depression.

    ·Articles supplied by the first applicant.

    -    Anti-Muslim Violence: New Disturbing Video Emerges’ Colombo Telegraph, 15 May 2019, < Lanka president pardons hardline Buddhist monk’, Al Jazeera, 23 May 2019, < arrested over Minuwangoda, Nattandiya violence released on bail’, Daily Mirror, 29 May 2019, < deleted.]

    -    ‘Minuwangoda unrest: 32 suspects released on bail’, 22 May 2019, Daily Mirror, < arrested in Kurunegala to the CID’, 26 May 2019, Hiru News, < from Sri Lankan journalist, Deshapriya, Sunanda (@sunandadesh). “#SriLanka Three persons arrested for photographing Vesak decorations – and people wanted police to check their houses. @NewsfirstSL If you are a Muslim you may be arrested for anything now a days”,

    -    ‘Kabir’s Coordinating Officer seriously injured in shooting’, Daily News, 11 March 2019, < g-officer-seriously-injured-shooting>

    -    ‘Kurunegala doctor arrested; probe on assets’, Sunday Times, 26 May 2019, < deleted.]

    -    [Source deleted.]

    -    Video of the building where the first applicant owns a shop burning taken on or around [a day in] 2019. The video was sent to him from his cousin, M, a refugee in [another country]. His cousin was sent the video by a friend.

    -    Photographs of the burning building where the first applicant has a shop.

    -    ‘Sri Lanka orders nationwide curfew amid anti-Muslim riots’, AL Jazeera, 14 May 2019, < by Gunawardene, Nalaka (@NalakaG). “In the Banana Republic of #SriLanka, thugs who attacked Muslims & destroyed their property get bail. But not a woman who wore dress with a ship’s wheel, or a writer whose short story apparently angered a few monks. What a Police and prosecutor we have! What #RuleofLaw? #AiyoLanka”

    -    ‘Sri Lankan Muslims face pogroms as the state turns a blind eye to mobs’, TRT World, 14 May 2019, < by Hussain, Azmil (@Azmilhussain). ‘We muslims are in Sri lanka are being attacked even under curfew conditions. The army, police and the stf are supporting the racist. We are need of help. We are in need of food and medical support immediately. Please consider this situation before it turns worse...’

    -    Facebook Screenshot regarding attacks on Muslims in North Western Province

    -    Media Release of the Embassy of the Republic of Turkey, 29 May 2019

    -    Video of a shooting filmed on 9 March 2019

    -    “Ministry Of Public Administration To Stop Female Public Servants Wearing Abaya?”, Colombo Telegraph, 31 May 2019, < Lawyers Refuse To Appear On Behalf Of Muslim Arrestees; Sri Lanka’s Human Rights Commission Urges BASL To Take Urgent Measures”, Colombo Telegraph, 1 June 2019, 4

16. On 3 June 2019 RACS sent the Department some of the same submissions regarding changes to the situation in Sri Lanka and a further Statutory Declaration by the first applicant dated 31 May 2019 with updates about his circumstances. This information included the following:

    ·On [a day in] 2019, a shop he owns in [Town 1] was burned in violence against Muslims.

    ·On [a day in] May 2019, his father contacted him to say police wanted to search his house in [Town 1] as they were searching the houses of all Muslims. His father told him he would attend on his behalf so that they did not break the door down.

    ·[Later in] May 2019, his father told him that police, army and ununiformed officers searched the house over a period of 12 hours which was significantly longer than other houses that they had searched.

    ·His father was beaten by police and had to report to them for a period of time. A tenant and employee that rented a floor of the house was imprisoned under the emergency laws. His father told the authorities that he was in [Country 3] after they pressured him to have him return.

    Department decision and lodgement with the Tribunal

17. On 8 July 2019, a delegate of the Minister made the decision to refuse the applicants protection visas on the basis that they were not owed protection. On 16 July 2019, the applicants lodged an application for a review of that decision with the Tribunal.

    Information before the Tribunal

    Submission to the Tribunal

18. On 23 August 2022, the applicants new representative made a submission to the Tribunal for the purpose of the hearing. It included the following:

    ·     An overview and timeline of the applicants’ claims and an assessment of the application of the law to those claims.

    ·     Documents already received by the Department and a copy of the DFAT, “DFAT, Country Information Report Sri Lanka”, 23 December 2021.

    ·     A claim that the applicants fear harm on the basis of their Tamil ethnicity in addition to their Muslim religion.

    Additional evidence to the Tribunal and Statements 5 and 6

19. On 30 July 2024, the applicants’ representative provided further evidence to the Tribunal including:

    ·     Supplementary statement (5) of the first applicant dated 29 July 2024 reiterating and elaborating on his claims and explaining his international travel.

    ·     Personal Statement (6) of the first applicant dated 22 July 2024 confirming the following claims:

    -    He is seeking protection in Australia because of the death threats and extortion issues he faced in Sri Lanka.

    -    Since 2016, he was coerced into paying extortion money by a dangerous Sinhalese extortionist group involving underworld figures, politicians, and thugs with connections to the police. Their demands increased significantly from [amount] to [amount] SLR. As he was unable to meet these demands, he was kidnapped and threatened at gunpoint.

    -    [In] 2017, [Mr A], a member of this Sinhalese extortionist group, was found dead in front of his house. This event has heightened his fear and the risk of harm to him and his family.

    -    The situation in Sri Lanka remains unsafe for the applicant due to the worsening political instability and economic turmoil, which have led to increased violence from thugs and extortionists.

    -    In 2020, one of his shop employees responsible for [specified operations], [Employee A], was arrested on suspicion of involvement in the Easter bombings. [Employee A] had been in contact with [one] of the main suicide bombers in the attack, and has remained in prison since his arrest.

    -    Following [Employee A’s] arrest, the Sinhalese extortionist group led by [Representative A] came to his home and threatened his parents, falsely accusing him of being involved with [Employee A]. This incident has intensified his fear of returning to Sri Lanka. He has not paid any extortion money over the past seven years, and he is deeply concerned that the extortionists will be furious about this.

    -    Additionally, he fears that they will falsely connect him to the Easter bombing events, given their significant power and political support.

    -    If he returns to Sri Lanka now, he will face continuing extortion and severe danger from the Sinhalese extortionist group. Given his absence over the past seven years, the extortionists are likely to be irate, he fears for their safety.

    -    The threats and extortion have severely impacted his mental health. He suffers from anxiety, stress, and memory issues, necessitating frequent psychological support. Although he has left behind a successful business and property in Sri Lanka, living in Australia has provided him with the necessary safety and peace of mind, which is crucial for his well-being.

    ·     Undated statement of [the] first applicant's sister to corroborate his claims and advise that there is an ongoing threat from [Representative A] in Sri Lanka.

    ·     Undated statement of [a] friend and former business associate of the first applicant in [Town 1], to corroborate his claims and advise that there is an ongoing threat from [Representative A] in Sri Lanka.

    ·     Character references from Australian friends [named].

    Hearing

1. On 6 August 2024 the first, second and third applicants attended a hearing at the Tribunal to present evidence in relation to their claims. Their representative was in attendance. To the extent that the matters raised at hearing were relevant to my decision, they are referred to in my findings below.

   Post hearing submissions

2. On 7 August 2024, the applicant’s representative provided the Tribunal with a copy of the most recent DFAT report, “DFAT Country Information Report Sri Lanka”, 2 May 2024 and a further submission in relation to the applicants’ claims.

3. In summary, the first applicant claims to fear harm as a wealthy Muslim businessman from Sri Lanka who, along with his family, has suffered significant targeting by local thugs. These individuals operate beyond the control of Sri Lankan law enforcement. His case is distinct due to his high-profile status, which has made him a target for criminal elements that operate with impunity. Despite the general improvement in conditions in Sri Lanka, the first applicant’s wealth and social standing and the fact that he is accompanied by Muslim women place him and his family at significant risk.

4. On 9 August 2024, the applicant’s representative provided the Tribunal with a copy of an article from the Journal of Ethnic and Migration Studies, “Saffron Ethnocracy: conceptualising ethnocracy in India, Myanmar and Sri Lanka”, 3 August 2024 and a further submission in relation to the applicants’ claims. The submission relates to the article about increased Buddhist nationalism having an adverse impact on Muslim communities.

   REFUGEE ASSESSMENT

5. I have considered the applicants’ evidence and found them to be credible witnesses of truth. The accounts they have given of the harm they faced in Sri Lanka have been compelling, consistent and supported by documentation and country information. While it is possible that some elements of their claims may be exaggerated, I do generally accept their accounts of the harm they faced in Sri Lanka as examined below.

6. The applicants claim to be Sri Lankan Muslim Tamils from central Sri Lanka. In support of their claimed identities they provided passports, birth certificates and a marriage certificate. The first applicant also claims to have been a businessman and he provided documents pertaining to his businesses. Based on their accounts of their lives at hearing and the documentation provided I accept that the applicants’ identities are as claimed, I accept they are Muslim and Tamil and I accept that the first applicant was a businessman in Sri Lanka and was perceived in the community as being wealthy. I am satisfied that they are nationals of Sri Lanka and that Sri Lanka is the receiving country.

7. The first applicant claims that he faced extortion in Sri Lanka from a group lead by local politician [Representative A] whose group targeted wealthy Muslim businessmen. He claimed that started when his father had a [business 1] and continued when he took over the business in 2000. He then said that it increased so much that he closed down that business in 2005 and moved to [Country 2] for approximately 5 years. He returned to Sri Lanka in 2012 and started a [business 2] and in 2013 he expanded this business to include [other business lines] and he also started a [further] business from home. He claims the extortion continued and so from 2014 to 2017 he spent an extended time in [Country 3] to start a business there. During that time he travelled to [specified countries] working as a distributor of [different products].

8. I have had regard to country information about the targeting of Muslim businessmen in Sri Lanka during the war and up until the applicant’s departure in 2017. The Minority Rights Group[1] reported that during the civil conflict Muslims often found themselves trapped between both warring sides. They were particularly targeted by the LTTE for human rights violations including abductions, extortion and killings. Muslim communities were also affected by a spate of abductions and extortion conducted in the south of Sri Lanka that targeted high-profile business leaders. While the end of the conflict enabled some displaced Muslim communities to return to their homes, Buddhist nationalists have become increasingly active in their dissemination of anti-Muslim propaganda through a range of public platforms, including social media. This wave of Buddhist nationalism was impelled by groups such as the BBS, Sinhala Ravaya, Ravana Balaya and others. Anti-minority campaigns have included vicious propaganda, protest rallies and demonstrations, violent attacks on places of Muslim and Christian worship as well as the economic boycott of Muslim-owned businesses and halal products.

   [1] Minority Rights Group, “Muslims in Sri Lanka”, updated March 2018. >

   The Minority Rights Group reports that these groups have operated with impunity, often in the presence of law enforcement officers. Perpetrators were rarely if ever brought before the law, despite being clearly identifiable in footage of these incidents that also shows police officers as bystanders to the violence. Inaction and apathy on the part of the state to effectively address the persecution of minorities, as well as the seeming lack of political will to control the BBS and similar organizations, suggested the tacit approval of the state. While the operation of groups such as the BBS has visibly reduced under the Sirisena–Wickremesinghe government, indicating less space for organized violence, in many cases those responsible for acts of incitement or previous incidents of violence have not been punished. Threats and intimidation aimed at the Muslim community include boycotting Muslim-owned shops and businesses, as well as activism to ban traditionally Muslim-owned trades such as butcher shops.

9. Consistent with the applicants’ claims, they reported that a further outbreak of communal violence occurred in March 2018 in the central hills around Kandy, with hundreds of Sinhalese Buddhists attacking Muslim villages. A mosque was attacked and Muslim-owned businesses were set ablaze. Though initially triggered by reports of a Sinhalese man who was attacked by a group of Muslims following a traffic accident and later died of his injuries, the riots were underpinned by deeper tensions between the communities, driven in large part by the anti-Muslim propaganda of Buddhist extremists. The Sri Lankan government subsequently declared a state of emergency as the violence spread.

10. This assessment was echoed in the 2017 DFAT report[2], which noted that there has been a rise in religious tensions between Muslims and the Sinhala Buddhist majority. Nationalist  Buddhist groups such as Sinhala Ravaya (English: Sinhalese Roar) and Bodu Bala Sena continue to stoke religious and ethnic tensions and are known to post religiously motivated attacks on social media. During the Rajapaksa Government, these groups enjoyed a level of state protection of their activities, support which ended when Sirisena came to power in 2015. According to the US Department of State, these groups can sometimes have support from local police or local government officials, whereby they fail to respond to complaints of Buddhist monks harassing or damaging property. There have been a number of incidents of verbal and physical attacks on Muslims and Muslim businesses or religious sites.

    [2] DFAT, “Country Information Report – Sri Lanka”, 24 January 2017

11. The applicant has provided consistent and compelling testimony of the harm he faced from [Representative A’s] group from when he took over his father’s business in 2000 until his departure for Australia in 2017. There are a number of reports[3] in the public sphere about [Representative A], a well-known politician in [Town 1], and his arrests for [offences including] and soliciting bribes from businessmen. While the reports indicate that he has faced convictions over the period [deleted] he appears each time to have been able to resume his position in the community. The accounts the first applicant has given are consistent with reporting from that time about the treatment of Muslim businesses by groups backed by Buddhist nationals and are also consistent with reporting about [Representative A] and violence and bribes. I accept that the first applicant faced harm in the form of extortion and threats from [Representative A’s] group. In that context I also accept as plausible that the group used opportunities as they arose to put pressure on him to pay them more money including Muslim boys employed by him having relationships with Sinhalese girls and the death of [Mr A]. In this context I also accept that they may have physically harmed him and made threats against his wife and daughter to put pressure on him.

    [3] [Sources deleted.]

12. The first applicant claims that anti-Muslim sentiment increased in his area in the wake of the Easter bombings in 2019 [details deleted]. He claims that On [a day in] 2019, a shop he owns in [Town 1] was burned in violence against Muslims. On [a day in] May 2019, his father contacted him to say police wanted to search his house in [Town 1] as they were searching the houses of all Muslims. His father told him he would attend on his behalf so that they did not break the door down. [Later in] May 2019, his father told him that police, army and ununiformed officers searched the house over a period of 12 hours which was significantly longer than other houses that they had searched. His father was beaten by police and had to report to them for a period of time. A tenant and employee that rented a floor of the house was imprisoned under the emergency laws. His father told the authorities that he was in [Country 3] after they pressured him to have him return. In 2020, one of his shop employees responsible for [specified operations], [Employee A], was arrested on suspicion of involvement in the Easter bombings. [Employee A] had been in contact with [one] of the main suicide bombers in the attack, and has remained in prison since his arrest. Following [Employee A’s] arrest, the Sinhalese extortionist group led by [Representative A] came to his home and threatened his parents, falsely accusing him of being involved with [Employee A]. This incident has intensified his fear of returning to Sri Lanka. He has not paid any extortion money over the past seven years, and he is deeply concerned that the extortionists will be furious about this.

13. DFAT reports[4] that on 21 April 2019 (Easter Sunday), local Muslim extremists carried out coordinated terrorist attacks against Christian churches and hotels in the Western (Colombo, Negombo) and Eastern (Batticaloa) provinces, killing 272 people. These were the first terrorist attacks in Sri Lanka since the war. The government reported that the groups responsible – National Thawheed Jammath and Jamaat-al Mullathu Ibrahim – have since been neutralised. More recently established checkpoints (mostly established following the 2019 Easter Sunday bombings) remain for the stated purpose of controlling criminal activity. The Easter Sunday terrorist attacks in April 2019 and the emergence of Sinhala Buddhist nationalist groups have increased threats and intimidation against religious minorities and online hate speech and disinformation, particularly against Islam, is prevalent. According to in-country sources, local officials and police (who are predominantly Buddhist) were biased against religious minorities and invariably sided against them in disputes.

    [4] DFAT, “DFAT Country Information Report – Sri Lanka”, 2 May 2024.

14. DFAT states that Muslims report they have been unfairly targeted since the Easter Sunday terrorist attacks in April 2019, including in the form of large-scale arrests under the PTA and other official practices perceived as discriminatory. The State of Emergency lapsed on 22 August 2019. In-country sources reported that anti-Muslim rhetoric and violence increased in the wake of these attacks: Muslims were assaulted and denied access to transport, Muslim businesses and homes were attacked by mobs, and Muslim businesses were boycotted in a campaign orchestrated by Sinhala Buddhist nationalist groups.

15. DFAT reports that around 2,300 people (mostly Muslim) were arrested in connection to the Easter Sunday attacks for suspected terrorism offences under the PTA, some on the basis of limited or tenuous evidence. Most have been released. In-country sources estimated that 115 remained in jail without charge in April 2023, although numbers are difficult to verify. In 2020, the UN Special Rapporteur on freedom of religion or belief reported that many Muslims arrested under the PTA struggled to secure legal representation, including by Muslim lawyers fearing reprisals.

16. In-country sources told DFAT that Muslims previously arrested under the PTA but since released, and the families of those who remain in detention, were monitored by the state and shunned by the Muslim community. In-country Muslim sources reported that people were reluctant to associate with or employ Muslims previously arrested under the PTA, for fear of attracting adverse state attention. In some instances, such Muslims and their families were completely rejected by their communities as terrorists.

17. In the context of that reporting and the reporting provided by the applicants, I accept the first applicant’s claims that anti-Muslim sentiment increased in his area in the wake of the Easter bombings in 2019. I also accept as plausible that on [the day in] 2019, a shop he owns in [Town 1] was burned in violence against Muslims; [a day in] May 2019 police, army and ununiformed officers searched the house over a period of 12 hours and beat his father; a tenant and employee that rented a floor of the house was imprisoned under the emergency laws; and that in 2020, one of his shop employees responsible for [specified operations], [Employee A], was arrested on suspicion of involvement in the Easter bombings and has remained in prison since his arrest.

18. I accept that the applicants would be returning to Sri Lanka with the profile of the family of a wealthy Muslim businessman. I consider that their profile is distinguished from other Muslim businessmen because of the problems they had in the past with [Representative A] and his group including threats, extortion and acts of violence against the first applicant; and the links to the Easter Sunday bombings through the first applicant’s employee [Employee A]; and the time the first applicant has spent abroad including throughout Asia, [Country 2], [Country 1] and Australia. Given the continued existence of road blocks and the applicants still having family in [Town 1], I consider that it is possible they would come to the attention of [Representative A’s] group on their return to Sri Lanka. Further, given that the first applicant would likely set up or engage in business to support his family and I consider they would easily be located throughout Sri Lanka.

19. I have considered whether the first applicant would face harm on his return to Sri Lanka on the basis of his religion, Muslim, and as a member of a particular social group of wealthy Muslim businessmen from [Town 1]. The applicant claims that he fears harm from members of [Representative A’s] group including the authorities in and around [Town 1] and thugs employed by [Representative A]. The harm he fears includes threats, extortion, physical harm to himself and his family or even death. He considers that [Representative A] has been able to act with impunity in the past and that he could do so in the future and that he could use events such as [Mr A's] death and the Easter Sunday bombings to frame and harm the applicant.

20. The news reporting referred to above indicates that in the past [Representative A] has been able to act with impunity and with the support of local law enforcement. The 2024 DFAT report continues to report that anti-Muslim sentiment has increased since the Easter Sunday bombings and that in-country Muslims report that they continue to experience harassment, intimidation and disinformation, and said the threat of arrest under the PTA was used to  threaten the community, particularly Muslims in Kattankudy. In-country Muslim sources report ongoing monitoring, including for signs of extremism. Those that face the highest risk of monitoring include: the families of people in detention for suspected terrorism offences under the PTA and their legal representatives; people previously arrested under the PTA but since released; community activists, particularly those that engage with representatives of the international  community; and organisations that receive funding from Islamic countries. Additionally, the Muslim community remains the frequent subject of online hate speech and disinformation, including with respect to its perceived population growth, wealth and links to terrorism. NGOs documented incidents of threats, discrimination and violence against the community in 2022 and 2023, including property damage and propaganda. Sinhala Buddhist nationalist groups, particularly the BBS, continue to target Muslims, especially though hate speech. In-country sources reported that state protection from these groups was inadequate.

21. DFAT assesses that Muslims face a moderate risk of official and societal discrimination, in the form of harassment and monitoring by security forces and organised disinformation campaigns by Sinhalese nationalist groups. Muslims face a low risk of official or societal violence, including in Colombo, where the community is well established and integrated, and are broadly free to practise their religion. Muslims suspected of extremist views and/or association with groups deemed to be extremist face a high risk of monitoring, arrest and detention, including under the PTA.

22. I accept the first applicant’s submission that his profile can be distinguished from the Muslim community in general in Sri Lanka due to his high-profile status, which has made him a target for criminal elements that operate with impunity in the past. In these circumstances, I am satisfied that once his return to Sri Lanka becomes known to those elements, the chance of him facing serious harm rises to the level of a real chance. Therefore, in all the circumstances of this case I am satisfied that the first applicant faces a real chance of persecution on his return to Sri Lanka on the basis of his religion and membership of a particular social group. I am satisfied that this harm extends throughout Sri Lanka and that effective protection measures are not available to the applicant.

23. 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).

24. 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). However, the Tribunal is satisfied that the second applicant wife, the third applicant daughter, the fourth applicant son and the fifth applicant daughter are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application 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) and the remaining criteria for the visa are met.

    DECISION

25. 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.

    Kylie Allen
    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.

    …