2101209 (Refugee)
[2024] ARTA 662
•15 November 2024
2101209 (REFUGEE) [2024] ARTA 662 (15 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs
Tribunal Number: 2101209
Tribunal:General Member G Fitzgerald SC
Date:15 November 2024
Place:Melbourne
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that:
(i)the first applicant meets s 36(2)(a) of the Migration Act; and
(ii)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 applicant.
Statement made on 15 November 2024 at 12:46pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – religion – Sunni Muslim minority group/sect – long-term member and community organiser – fear of harm from rival group – arguments and violent clashes – exaggerated, inconsistent and non-credible claims and evidence – continued residence and multiple departures and returns to Australia and other countries – no contact with group while in Australia – group members’ involvement in major terrorist attack – brother officially investigated – country information – unfairly targeted arrests and monitoring, and community harassment, discrimination and intimidation – group’s proscription now lifted – internal divisions among Muslims – claims accepted with some reservations – members of family unit wife and children – youngest child born after refusal decision and not an applicant in this review – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), (4)(b), (5), 36(2)(a), (b)(i), 65
Migration Regulations 1994 (Cth), rr 1.12(4), 2.08, Schedule 2CASES
Abebe v Commonwealth (1999) 197 CLR 510
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
Ponnundurai v MIMA [2000] FCA 91
Prasad v MIEA (1985) 6 FCR 155
Somaghi v MILGEA (1991) 31 FCR 100Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants claim to be nationals of Sri Lanka. They applied for the visas on 24 March 2016. The delegate refused to grant the visas on 11 January 2021.
On 3 February 2021, the applicants sought review of the delegate’s decision by the then Administrative Appeals Tribunal (AAT). On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The first applicant and the second applicant attended Tribunal hearings in this review on 23 August 2024 and 3 September 2024. They are a husband and wife respectively. Their children are the third, fourth and fifth applicants. They did not attend the hearings. The hearings were conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The first applicant was examined at both hearings. His wife (the second applicant) and one of his brothers gave evidence at the second hearing.
The applicants were represented in relation to the review. The representative attended the Tribunal hearings.
The applicants’ representative filed with the Tribunal various documents before and after the hearings, on 15 and 29 August 2024 and on 5 and 9 September 2024. These will be referred to where relevant below.
The first applicant makes protection claims relating to his religion. The other applicants do not make separate or independent protection claims but rather rely on the first applicant’s claims.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration as set out below.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). 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.
Complementary protection
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issues
The issues in this review are:
a.whether there is a real chance that, if the first applicant returns to Sri Lanka, he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act; or, if not,
b.whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act; and
c.whether the second, third, fourth and fifth applicants are members of the same family unit as the first applicant?
The first applicant’s family
He and his wife married in Sri Lanka on [Date]. They have four children.
Their first two children (boys) were born in Sri Lanka in [Year] and [Year]. The remaining two children (girls) were born in Australia in [Year] and [Year]. The first three of these children are respectively the third, fourth and fifth applicants. The last girl born in Australia in [Year] is not an applicant in this review. She was born on [Date], after the Departmental decision refusing the protection visas on 11 January 2021. [1]
[1]The applicants’ then representative wrote to the Tribunal on 25 July 2024, seeking to add this daughter as an applicant in the review. The Tribunal responded by letter dated 29 July 2024, noting that it did not have jurisdiction to include in or add a child born after the decision was made to the review, referring to reg. 2.08 of the Migration Regulations 1994.
The first, second, third and fourth applicants were all born in Sri Lanka. The fifth applicant was born in Australia.
Nationality, country of reference and receiving country
The applicants’ nationality is not in issue. The Department was satisfied as to the identity documents which they produced. As it has no reason to doubt this assessment, the Tribunal accepts that the applicants are Sri Lankan citizens. Accordingly, Sri Lanka is the country of reference and receiving country for their application for protection visas.
The applicants’ immigration and travel background
The first applicant was a very well-travelled businessman. Before coming to Australia, he lived in Sri Lanka and [Country 1]. He has travelled to or visited [Countries 2-6].
The first applicant’s residential history before arriving in Australia in December 2015 is complicated. This is summarised below in tabular form, based on the addresses he gave in his Departmental application.[2] The first applicant confirmed at the hearing that these details were true and complete.
[2]The first applicant’s application for a protection visa to the Department lodged on 24 March 2016 (the Departmental application), Part C, at page 15 (question 81), as supplemented by his evidence at the first hearing as to the period September to December 2015 which was not listed in his form.
Dates
Place of residence
February 1985 – April 2005
[Town 1], Sri Lanka
April 2005 – August 2005
Colombo, Sri Lanka
August 2005 – August 2008
[City, Country 1]
August 2008 – April 2009
[Town 1], Sri Lanka
April 2009 – October 2009
[City, Country 1]
October 2009 – August 2010
[Town 1], Sri Lanka
August 2010 – July 2015
[City, Country 1]
July 2015 – August 2015
[Town 1], Sri Lanka
September 2015 – December 2015
Various places in Sri Lanka, moving around, including [Towns 2 and 3]
His wife lived with him in [Country 1] with the rest of the family between November 2011 and October 2012 and between November 2014 and July 2015. The rest of the time she was living with their family in [Town 1], before arriving with them to join him in Australia [in] December 2015. [3]
[3]The second applicant’s application for a protection visa to the Department dated on 22 March 2016 (the Departmental application), Part C, at page 15 (question 81).
Between [October] 2012 and [July] 2015, the first applicant arrived in and left Australia on 15 occasions, but all were for short trips or while he was in transit. [4]
[4]Departmental application, Part C, question 69, after page 12.
The first applicant last arrived in Australia [in] December 2015 on a visitor visa (FA600 class). He applied for the protection visa on 24 March 2016. He has remained in Australia since arriving.
The applicant also has a very extensive travel history, set out in tabular form in his Departmental application going for about three pages.[5] The first applicant confirmed at the hearing that this table was true and complete.
[5]Departmental application, Part C, question 80, from page 14.
The applicants’ backgrounds
The Tribunal will focus on the first applicant, as he has the only independent protection claims in this case. He is in his early-[Decade]s. His wife is in her early-[Decade]s. Their children are aged from about [Age] to [Age] years.
Background in Sri Lanka and [Country 1]
While in Sri Lanka, the first applicant lived almost the whole time in his hometown of [Town 1] in the Eastern Province (next to [City]), as shown in the above table. He did live in Colombo for about four months in 2005 and moved around Sri Lanka in late 2015. Between their marriage in [Month Year] and her arrival with the rest of the family in Australia in December 2015, the second applicant and any children lived in [Town 1] (except for the period of about 1 ½ years in [Country 1]).
The applicant still has family living in his hometown. His father died in [Year] but his mother is still living there, together with the grandfather of the first applicant. His younger brother also still lives in his hometown but he is not in contact with him and he has not been well. He is in regular contact with his mother. When he speaks to her, he sometimes speaks to his grandfather. His older brother ([Mr A]) now lives in [Country 7]. He is the one who gave evidence to the Tribunal.
His wife said that she and her husband between them still own property in Sri Lanka. They own three houses in [Town 1] and an apartment in Colombo.
The first applicant’s formal education ended in Sri Lanka in [Year] when he obtained GCE certificate at an advanced level at a high school in his hometown.
The first applicant also has a lengthy employment history which he set out in four pages in his Departmental application. [6] Before coming to Australia, he worked mainly in [product 1] sales, marketing and management for various companies in Sri Lanka and in [Town 1]. He said that his father was [an occupation]. He learned this trade from him and others. He worked mainly in sales and management of tailoring for [product 1] businesses. In August 2010, he became a part owner of a business operating in [City, Country 1] known as [Business].
[6]Departmental application, Part C, question 84, from page 17.
He described his ethnicity on his Departmental application as being ‘Sunni Muslim’. [7] He was questioned about this at the first hearing. Eventually he said that his ethnicity was Sri Lankan (or Ceylon) Moor.
[7]Departmental application, Part C, question 32, page 4.
He described his religion as being Sunni Muslim but he was a member of a particular group or sect within that religion while in Sri Lanka (which he referred to as the Thowheed sect). [8]
[8]The Tribunal notes that the sect is also referred to as the Thawheed or Wahhabi sect.
The Tribunal accepts these background matters set out above.
THE FIRST APPLICANT’S CLAIMS FOR PROTECTION
Introduction
In summary, the first applicant has made in this review two protection claims based on his religion.
The first protection claim was made in his Departmental application. [9] In substance this claim is that, based on certain incidents which took place in Sri Lanka between 2004 and 2015, he fears harm or mistreatment if he returns to Sri Lanka because of his involvement with a strict Sunni Muslim sect or group which he referred to as the Thowheed group (also described by others as ‘Wahhabi’). His group is opposed by rival Sufi extremists (another sect or group who are followers of Abdul Rauf Moulavi). He fears harm from Sufi followers and the authorities whom he alleges they control. Both these religious groups are in his old hometown in Sri Lanka which is [Town 1]. The Tribunal will refer to this as the Thowheed Sufi claim.
[9]Departmental application, Part C, questions 88 to 96, pages 20 to 22, and additional one page statement in answer to question 89.
The second protection claim was also made to the Department before the primary decision was made, principally in statements and other documents lodged with the Department in about November 2020. [10] It is a sur place[11] claim, which has only arisen while the applicants have been in Australia. In substance this claim is that the first applicant fears harm or mistreatment by the Sri Lankan authorities because of his previous involvement with the Thowheed sect, following the Easter Sunday bombings in Sri Lanka in April 2019. One of the bombers was a member of this sect from his hometown of [Town 1]. He claims that there has been a crackdown by the government and community on his sect and its members. The Tribunal will refer to this as the Easter bombings claim.
[10]Principally, the applicant’s statement of claims dated 9 November 2020 and further statement dated 15 November 2020 (the 2020 statements).
[11]Somaghi v MILGEA (1991) 31 FCR 100, 116.
For completeness, the Tribunal notes that the first applicant also applied for protection, so he that he did not have to return to not only Sri Lanka, but also to [Country 1]. [12] The claims for protection based on [Country 1] were misconceived. The first applicant confirmed that he no longer has any right to enter and reside in [Country 1], since the expiry of his last temporary work permit for that country in about 2015. Since he is not a national of [Country 1] and has no other right to enter and reside in that country, it is futile and unnecessary to consider whether Australia is under any obligation to protect him from something happening to him in a place he cannot go. This was raised with and explained to the first applicant during the first hearing. He understood and accepted this. His representative also understood and accepted this. The Tribunal will not further consider or refer to any claims for protection based on [Country 1]. It will instead consider below the claims for protection relating to Sri Lanka.
[12]Departmental application, Part C, questions 88 to 96, pages 20 to 22, and additional one page statement in answer to question 89.
Credibility principles
Given the amount of material before it, the Tribunal will assess the first applicant’s credibility as a witness in the course of setting out and assessing his evidence about his claims. In doing so, the Tribunal bears in the mind the following relevant principles.
When assessing claims, the Tribunal must make findings of fact. In doing so, it has had regard to the difficulties faced by refugee applicants. On the other hand, the Tribunal is not required to make out the applicant’s case. It is the responsibility of the applicant to provide enough evidence to establish the claim to be a person in respect of whom Australia has protection obligations. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim. [13] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. [14]
[13]Section 5AAA of the Act.
[14]MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169–170.
The Thowheed Sufi claim – the evidence and findings
Before the first hearing, the first applicant filed a statement dated 15 August 2024 (the 2024 statement) which relevantly set out this claim as follows:
‘Our troubles began in [Town 1], a town known for its religious divisions between Muslim sects. The conflict in our hometown involved Sufis, who were supporters of Abdur Raouf Moulavi, also known as the Payilwan group, and the followers of the Thowheed Jamaath, referred to as Wahhabis. Raised in a devout Sunni Muslim household, I was deeply involved in religious education and strongly believed in the teachings of the Thowheed Jamaath.
Because of my outspoken support for Thowheed Jamaath, I became a target for those who oppose these beliefs, particularly the followers of Abdur Raouf Moulavi. The situation escalated Abdur Raouf Moulavi’s followers began causing trouble directly in front of my home, and I was often involved in arguments with local Sufis at the mosque, in Islamic centres, and even on the streets of [Town 1]. These confrontations eventually led to violent clashes in October 2004, during Ramadan, when I was directly targeted. Fearing for my life, I was forced to leave Sri Lanka. [15]
[15]The 2024 statement, at page 1. Reproduced as written.
Before he was questioned about his claims at the first hearing, he was asked about his involvement with his religious group in Sri Lanka. He said that he came from a very religious family: his mother, father and brothers were all religious. He said from a young age he had been quite religious: attending mosques and Koran classes (or madrassas). He said even at school he argued with the other boys about religion. He said it became a follower of the Thowheed group at an early age.
He explained that the Thowheed group were strict in their observance of the Koran. They regarded themselves as following the correct principles of Islam. He said that there were about 3,000 to 4,000 strict followers of this group in his hometown (which itself had about [Number] inhabitants), but more followers who were less strict. The first mosque for this sect opened it in his hometown in the late 1990s, together with an Islamic school or madrassa.
By 2015, there were about five or six mosques in his hometown which were for strict followers of this creed, of the 60 to 70 Sunni mosques altogether in the town. There were another three or four mosques which were used by followers of his group and others. He said among other things, his group was against drugs, alcohol and tobacco and for strict compliance with the words of the Koran.
His brother confirmed in his evidence to the Tribunal there were still Thowheed mosques in [Town 1] in 2019, before he left Sri Lanka in about July 2019 (after the Easter Sunday bombings in April 2019)
The first applicant said that the main rival group to Thowheed were the Sufis, who were followers of Moulavi. He said that Moulavi was a local cleric who was still alive and active in his hometown. This man, he said, did not comply strictly with the Koran but instead listened to superstitions and encouraged the use of drugs, among other things. According to him, this group had about 5,000 to 6,000 followers in 2015 and about three or four of its own mosques. He then lived about [Distance] metres away from the centre of the Sufi creed, which was called [Name].
Another possible source of friction was, according to him, that his group stemmed from Sufis who had gone to Saudi Arabia in the 1970s and 1980s and who had then converted to a stricter observance of Islam. In other words, they were converts or apostates from the Sufi creed.
He has tried to bring up his children to follow the teachings of his Thowheed group. His wife is also a follower. She confirmed this in her evidence.
The first applicant said that he and his group were keen to raise awareness about drug, alcohol and tobacco consumption. They held conferences about this. He said this was the main reason for friction between the groups: but they were not just verbal arguments, there were even some physical assaults between members of the groups.
He was asked what his actual involvement was with his group while he was in Sri Lanka. He said that he had a ‘leading role’ in his group as an organiser of ‘seminars’. He explained that the group had an Imam as its religious head. He and others would organise or make arrangements for the imams to give speeches about religious and social matters in the mosques, or in the community (on the streets at public meetings). His role was as one of the organisers of these events. He said there was a team of 10 to 20 people who would organise them and also provide financial support for them. Before 2005, the public meetings outside the mosques would take place once every two or three months, but usually there was a weekly event in the mosque which he helped to organise, and sometimes twice a week. He said that the number of attendees at these events would be in the hundreds if they were held in the mosque, but in the thousands if they were held in public.
His other involvement with the group while he was in Sri Lanka was in participating in social services (such as helping the poor, blood donations, providing food for victims of disasters, providing financial support and helping others) and in an incident in 2004 involving a clash between his group and the Sufis.
For reasons which are explained in more detail below, the Tribunal did not find the applicant to be a generally credible and reliable witness but it does accept that the first applicant was a follower of the Thowheed sect in [Town 1]. It also accepts there was friction and clashes between his sect and the Sufis in that town. It does not accept that he had a leading or prominent role in the Thowheed group though it does accept that he was active with this group until about 2004 or 2005.
The October 2004 clash between the Thowheed and Sufi groups
He said the 2004 clash arose when his group decided to ‘remove them [the Sufis] from the community’. They attacked their mosques and houses of their members. He said he was ‘actively involved’ in this event. When asked to explain what his involvement was, he referred to two incidents. The first incident was where he is a member of a group of about 10 to 15 people from the Thowheed group were involved in desecrating the graves of their Sufi opponents. He said this group was mainly young people. There were other groups doing the similar things. The second incident he referred to was where they took members of the Sufi group and forced them to convert to his group in a mosque. He said that he was one of about 50 to 60 people who did this. The Sufis later recanted.
Thousands of members of his group were involved in this clash in 2004, according to him. He could not explain how the clash arose. It was not an organised attack. He said that it was during Ramadan on about the 15th day (around October 2004). He said that he just heard that day that ‘something was happening’, so he joined in. He said it started in a minor argument but then deteriorated into the events described above which went on for two to three days. According to him, the police became involved and put in place a curfew. The army was also called in.
He said he was an ‘important person’ in the group and played an ‘important role’ in the 2004 clash. He was asked to explain how or why he was important. Apart from referring to the above incidents, he could not explain why he was important, saying simply that it was important that his group did this because the Sufis were going against the proper teachings of Islam: in other words, the attack and his group’s view were important, not that his role in it was.
In the Tribunal’s view, he was not a leader of the attack, despite his assertions. He did not organise it but joined in spontaneously. He was a member of various groups involved in the grave desecrations and recanting but there were thousands of members of his group involved in other incidents during the clash. He was a participant, not a leader or instigator.
The applicant’s representative provided an article to the Tribunal dated [October] 2006 (apparently from [Newspapers in Colombo) (the [Newspaper] article) which referred to the two rival Muslim religious groups or factions in [Town 1] as the ‘Sufis’ and ‘Wahhabis’. The article noted that clashes occurred between the groups ‘on a regular basis due to the conflict of beliefs between both schools of religious thought’. It also stated that in October 2004 clashes had occurred between the groups in [Town 1], with ‘over 200 houses of Sufi followers’ being ‘brunt [burnt] down in the melee’. According to the article, this melee happened after a book was published by a Sufi leader, which was considered controversial and un-Islamic by the Wahhabis. It is noteworthy that the first applicant was apparently unaware of this reason for the clash, as he did not mention it at the hearing, despite his claiming a leading role in the events.
His wife gave evidence that she has been a follower of the Thowheed group since childhood. She had no direct personal knowledge of the 2004 clash. She said she was very young then, only [Age] years old. She said she did not see the riots but knew there was a problem that took place. She did not know any details of the incidents.
His brother did not give any evidence about or refer in his statement [16] to this 2004 clash or the first applicant’s involvement in it.
[16]This is the undated statement by his brother ([Mr A]) provided to the Tribunal under cover of the representative’s letter dated 28 August 2024 (the brother’s statement).
As a result of this clash, the first applicant said he came to the attention of the Sufis. The Sufis were politically more powerful. They enjoyed police support. They ‘ousted’ those who had been involved in the clash. He said they still had many supporters in places throughout Sri Lanka and members of that group everywhere in the country wanted to harass him.
In his Departmental application, the first applicant stated that he was targeted by Sufi supporters after the 2004 clash. On one occasion, he claimed ‘an armed mob’ came to his house looking for him and his grandparents had to hide him and plead with the mob to convince them he was not there. [17] This claim was not referred to again or elaborated upon in his 2020 statements[18] or in his 2024 statement (where he simply referred to Sufi followers ‘causing trouble directly in front of my home’). [19]
[17]Departmental application, Part C, at page 21, response to question 91.
[18]The first applicant’s statement dated 9 November 2020 to the Department; First applicant’s statement dated 15 November 2020 to the Department.
[19]The first applicant’s statement dated 15 August 2024 to the Tribunal.
At the hearing, he said that after the 2004 incident, the Sufis used local thugs to attack him. He referred to some people visiting his house and throwing rocks at it. He said he could not come out of the house, so he decided to move. He also referred to one night at his aunt’s house, when a person he knew came with sticks and his father or grandfather intervened. The incident was stopped. He said that he had relations on the other side.
In his 2020 statements, the first applicant claimed that he had received death threats from Sufis over his involvement with this 2004 incident.[20] He did not give any details of these threats, nor repeat them at the hearing or in his 2024 statement, nor produce any independent evidence about these threats.
[20]The first applicant’s statement dated 9 November 2020 to the Department, at page 2; First applicant’s statement dated 15 November 2020 to the Department, at [6].
In his account of the 2004 incident, the Tribunal did not find the first applicant to be a generally credible and reliable witness. He exaggerated his role in the group and in the 2004 clash and was evasive and argumentative when questioned about it. He was but one spontaneous participant with many hundreds, if not thousands, of others in attacks he did not organise. He remained living in [Town 1] for six months after the clash and returned to live there in [2008], 2009 and 2015 (see the table). His wife and any children lived there without any claimed harm most of the time between 2008 and 2015, except when they were in [Country 1] for about 1 ½ years. His and their return to and residence in that town is not consistent with a genuine fear of imminent or continuing harm because of his involvement in the 2004 clash. He gave different accounts of the attacks on him in 2004: an armed mob went to his house versus one person with sticks went to his aunt’s house versus some people threw rocks at his house. He did not report this alleged attack to the police. The inconsistencies, exaggerations, his argumentativeness, his continued living there and the lack of independent evidence left the Tribunal unpersuaded that it could rely on him as a credible witness about the claimed attack on him and any harm and threats against him as a result. The Tribunal does accept that he participated in the 2004 clash against Sufis as part of a large mob but does not accept that he was an important, leading or prominent figure in that clash or that he was harmed or threatened as a result, including the alleged attack on his home and the death threats in 2004.
The first applicant decides to leave Sri Lanka for [Country 1] in 2005
Following these events, he said he decided to leave Sri Lanka. He got an opportunity to go and work in [Country 1] where he arrived in August 2005 (about 10 months after the 2004 clash). He did not even leave [Town 1] for Columbo until April 2005 (about 6 months after the clash).
While he was in [Country 1], he continued to be involved with his Thowheed group by providing financial support for social services and ‘seminars’ and to build mosques. He said that the followers of his group were all required to provide financial support of this kind, so that there were thousands of people doing the same as him. His financial support diminished over time.
The first applicant travels back and forth between Sri Lanka and [Country 1] between 2005 and 2015
It is especially significant that he continued to live in [Town 1] until April 2005 and returned there in 2008, 2009 and 2015, staying there for over 20 months (see the table above). It is also significant that his wife and any children lived there without any claimed harm most of the time between 2008 and 2015, except when they were in [Country 1] for about 1 ½ years. All this was despite his claimed fears of harm from the Sufis and the authorities whom they controlled. This counts heavily against the genuineness of his fear of harm as a result of the 2004 clash, particularly when he did not even leave [Town 1] until six months after that clash. He said when he returned at these times he was not very active with the Thowheed group. He eventually accepted at the first hearing, despite his earlier statements, that he was not afraid for his life when he went back in 2008, [to try living there again].
The 2015 beach incident
At the first hearing, the first applicant said when he was back in Sri Lanka in 2015, an incident occurred on the main beach at [Town 1] which he described at the first hearing as the ‘biggest’ threat to him. He said he was riding a motorbike on the beach for relaxation, when a group of about 10 to 12 people (of whom he knew two or three) started threatening him. They had wood-fired sticks (and perhaps one person had a fish knife but he was not sure, because they were behind him). He said they tried to kill him. Someone hit him on the back of the head and on his back while he was riding the motorbike. He said he was close to a Thowheed mosque and his attackers yelled at him, ‘He’s a Thowheed person. We should not let him live and we should kill him’.
At the second hearing, the first applicant was pressed on the different accounts he had given of this incident above and below:
a.in his Departmental application, that he got into an argument at a local mosque with Sufi followers, and ‘as a result I was followed when I was at the beach one day – I fled from the scene on my motorbike, but I saw one of the men who was yelling at me was carrying a weapon’; [21]
b.in his 2020 statements, that he was attacked at the beach in [Town 1] in October 2015 by a group of men carrying poles who ‘heavily beat down on me … I managed to escape with severe injuries’ and he was later sent death threats; [22] and
c.in his 2024 statement, this incident was not mentioned.
[21]Departmental application, Part C, at page 21, response to question 91.
[22]The first applicant’s statement dated 9 November 2020 to the Department, at page 4; First applicant’s statement dated 15 November 2020 to the Department, at [8].
The first applicant was unable to explain the different accounts he had given (one armed attacker versus an armed mob of 10-12; arose from an argument he had with Sufis at a mosque versus just a random attack on beach; knife or no knife, sticks or poles; harmed, not harmed versus seriously injured; caught or escaped unhurt on his motorbike). He maintained it had happened as he told the Tribunal. He said in substance that his lawyers got the Departmental application wrong and he told them to fix it up but they did not. When asked why he did just not ride away on his motorbike, he said that they blocked him and tried to pull him off the motorbike but he escaped.
He did not seek or obtain any medical treatment for any injuries sustained during this attack. He did not want to tell anyone about the attack.
He said he made a report to the police about this incident. It was confirmed with him that the police report to which he referred was the hand-written document provided to the Department dated apparently 12 December 2015. It was also confirmed with him at the second hearing that the police report does not refer at all to the 2015 beach attack. Instead it is a largely self-serving statement made by the first applicant shortly before he arrived in Australia for his ‘self safety’ about his fears, about unparticularised threats to his life and complaints he had made to the police who were ‘no use’. But it is also an odd document, referring to the first applicant in 2005 ‘during the period of the Islamic revolution … [being] on the side of persons who carried out the revolution’ and being threatened as a result.
When examined about this report, he said that he told the police about the beach attack but because they were supporting the Sufis, they would not accept or record that matter in the report which they described as a ‘minor incident’. This struck the Tribunal as implausible: that he told the police this but they would not record it but they instead would record that complaints had been made to them but they were ‘no use’. The Tribunal does not accept that the police refused to record an alleged attack by Muslims on another Muslim because they were prejudiced against Muslims or supporting the Sufis. He was asked how he obtained the report. He said that the police gave him a copy. The original report puzzlingly has two sections stating ‘(XXXXX )’. DFAT assesses that document fraud is common in Sri Lanka, as was put to the first applicant. [23] The Tribunal does not accept the police report and gives it no weight, save for its material omission of any reference to the claimed 2015 beach attack.
[23]DFAT country information report Sri Lanka dated 2 May 2024 (DFAT Report), [5.76].
As to this beach incident, his wife told the Tribunal that after they returned from holidays in [Country 6], she and her husband were in [Town 1]. He went out but when he returned she saw he was holding his hand to his head. She said she was scared but she did not know what it happened and her husband was upset and would not speak to her.
His brother did not give any evidence about this incident or refer to it in his statement. He and the first applicant were then estranged.
In his account of the 2015 beach incident, the Tribunal did not find the first applicant to be a generally credible and reliable witness. The various accounts he gave of this incident were materially different, as set out above. The police report omitted any reference to it. He was evasive and argumentative in his responses to the Tribunal’s questions about this incident. Because of these matters, the Tribunal could not rely on him as a credible witness about the claimed attack against him in 2015. The Tribunal does not accept that 2015 beach attack happened and that it led to him leaving Sri Lanka for Australia.
His involvement with the Thowheed group in Australia
Since he came to Australia in December 2015, he has had no contact with the Thowheed group in Sri Lanka - for over eight years. He said that he reads social media about the group and sometimes comments. He has not provided any financial support to the sect while in Australia.
However, he still observes and practises his Islamic faith in Australia. The first applicant mainly attended the [Mosque], which he said was close enough in its teachings and approach to his group. He usually attends a mosque every Friday and he does his five daily prayers, usually at a mosque. He regards himself still as being an adherent of the Thowheed sect but there are no mosques specifically follow those teachings in Australia. He no longer attends any Koran study groups.
He confirmed in summary that his involvement with the Thowheed group until he came to Australia was limited to the seminars, financial support and the 2004 clash referred to above.
The claimed 2015 beach attack relates more to his perceived involvement with the group, rather than his active involvement with the group which was greatly diminished by that time and is virtually non-existent now in Australia.
Summary of findings on the Thowheed Sufi claim
The Tribunal has accepted and finds that:
a.the first applicant was a follower of the Thowheed sect in [Town 1] ;
b.he was active with this group until about 2004 or 2005 and after leaving for [Country 1] in 2005 his involvement substantially diminished over time;
c.there was friction and clashes between his sect and the Sufis in that town up until about 2006 (the date of the [Newspaper] article);
d.he participated in the 2004 clash against Sufis as part of a large mob; and,
e.he has had no contact with the Thowheed group since coming to Australia in 2015.
The Tribunal has not accepted and rejects that:
a.he had important, leading or prominent role in the Thowheed group;
b.he was an important, leading or prominent figure in the 2004 clash;
c.he was harmed or threatened as a result of the 2004 clash, including the alleged attack on his home and the death threats in 2004; and
d.the 2015 beach attack happened and that it led to him leaving Sri Lanka for Australia.
The Easter bombings claim
The first applicant’s claims
The DFAT country information explains 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 civil war which ended in 2009. The government reported that the groups responsible – National Thawheed Jammath (NTJ) and Jamaat-al Mullathu Ibrahim – have since been neutralised. [24]
[24]DFAT Report, [2.70].
Before the hearing, the applicant relevantly claimed as follows in his 2024 statement:
The situation in Sri Lanka deteriorated significantly after the Easter bombings in April 2019. The Sri Lankan government wrongly identified Wahhabi groups, including Thowheed Jamaath, as responsible for the attacks, leading to widespread persecution. Although the person behind the bombings, Zaharan Hashim, was associated with Thowheed Jamaath, my involvement was purely religious - I attended the mosque regularly to pray, which unfortunately was captured on surveillance cameras. This association has put me and my family at extreme risk.
Following the bombings, Muslims, especially those belonging to different Islamic sects like Thowheed Jamaath, were harassed, tortured and labelled as terrorists. The government, influenced by extremist Buddhist groups and populist politics, systematically cracked down on Muslims, using law enforcement to arrest, threaten, or unlawfully detain us. The fear of persecution forced me to relocate temporarily to [Town 2], where I started a [product 2] business. However, even there, I faced continuous harassment, mental torture, and bullying for about a year. [25]
[25]The 2024 statement, at page 2.
The first applicant has been in Australia since December 2015. The Easter bombings occurred in Sri Lanka in April 2019. He has no direct knowledge of the events or situation in Sri Lanka relating to this claim. Instead, he relies on his brother’s evidence and country information, as well as some screenshots he tendered of social media. The applicants did not seek to adduce evidence from the first applicant’s mother and other brother or anyone else still living in Sri Lanka.
The social media screenshots
The applicant filed social media screenshots which he claimed were widely shared in social media after the Easter bombings ‘accusing him of [being?] the terrorist that masterminded the attack’. [26] The first screenshot had a photograph of the first applicant. It was also provided to the Department on about 9 November 2020 but on that copy it bore the date of 14 March 2017 – before the Easter bombings (this date was not shown on the copy produced to the Tribunal). The translation of the text referred to a ‘TNJ member among ISIS extremists’. It recorded about 36 likes and 25 comments on the screenshot. The second screenshot produced had the same photograph of the first applicant, but photographs of several other men as well. It was also produced to the Department in November 2020. Neither copy bore a date, other than ‘9 hours’ (the age of the post when screenshot). The translation of the text in this screenshot asked: ‘Do you know these people? Your inquisitive eyes will prevent thousands of lives from the next bomb’. It recorded one like and share.
[26]Screenshots and certified translations of Sri Lankan Facebook entries provided to the Tribunal under cover of the representative’s letter dated 29 August 2024. Quote reproduced as written from the covering letter.
Based on this, the Tribunal cannot conclude that the screenshots were and are still being widely shared in social media, or that they accuse him of being the terrorist mastermind. The Tribunal does find that there was a low-level historical suspicion or suggestion by two people on Facebook that he and others had a connection to the Thowheed group, which in turn had some connections to NTJ which was involved in the Easter bombings over two years after the first screenshot.
His brother’s evidence
The brother’s statement focused on events after the Easter bombings in April 2019.
His brother lives in [Country 7]. He has been since about late July 2019. He said he fled there about three months after the Easter bombings. He was last in Sri Lanka in July 2019. Throughout his time in Sri Lanka, he lived mainly in and around [Town 1], [City] and [Town 3] which are near each other. He also spent some time in Colombo for business and work.
He said that he moved to [Country 7] for safety he could work there and be safe. He said he could not apply for protection there because that country did not have the same system as Australia.
His brother is a Muslim but he was not a member or follower of the Thowheed group like the first applicant.
He said he and the first applicant were estranged in 2009 because the first applicant disapproved of his brother’s marriage. They had no contact with the first applicant again until sometime after the 2019 police interrogations described below.
His brother confirmed at the second hearing that there was still Thowheed group mosques in [Town 1] when he left Sri Lanka.
In the brother’s statement, he claimed that following the Easter bombings, the NTJ organisation ‘became the focal point of suspicion and hostility’ and ‘was unfortunately linked to the extremist activities of Zaharan Hasim, the mastermind behind the Easter attacks’. According to his brother, this brought ‘intense scrutiny and persecution to anyone connected with the organization, especially Muslims from the eastern province, where the organization had significant influence’. [27]
[27]The brother's statement, at page 1. Reproduced as written.
His brother claimed that he was telephoned from an unknown number about a week after the Easter bombings in April 2019. He was asked to meet the caller at a park in Batticaloa. The caller claimed to be from the Criminal Investigation Department (CID). When he arrived at the park, he was met by six men in civilian clothes who asked about his family. The conversation then shifted to the applicant. He claimed that the CID officers were ‘particularly interested’ in the applicant’s whereabouts and activities. He told them that the applicant had lived in [Country 1] for an extended period, but that he had lost all contact with him. He did not know where he was or what he was doing. The officers said that they had ‘received adverse information’ about the applicant’s involvement with ‘National Thowheed Jamaath’. They accused the first applicant of funding and being actively involved in the organisation’s activities and even suggested that he had financially supported Zaharan Hashim. They said they had received camera footage that the applicant had been visiting the NTJ centre continuously. They claimed to have tried contacting the applicant but were unsuccessful, so they decided to interrogate the brother instead. The brother said that he made it clear to the officers that he had no contact with the first applicant, who had severed the ties with his brother. The officers allowed him to leave after recording his statement. [28]
[28]The brother's statement, at page 1.
The brother claimed that a couple of weeks later, the same officers came to his house and took him to the police station where he was ‘rigorously interrogated’ about the applicant’s whereabouts. He claimed that he was detained for 24 hours. He could not provide them with any information. [29]
[29]The brother's statement, at pages 1 and 2. Reproduced as written.
About a month later, he claimed, the officers returned to his home but he was not there at the time. He claims that they threatened his family, which left them all ‘in a state of fear and alarm’. [30]
[30]The brother's statement, at page 2. Reproduced as written.
The brother claimed that these incidents had severe consequences for him personally, because news of his interrogation spread throughout his community and people began to associate him with the Easter bombings, because of his connection to the first applicant and the interrogations. He said that the constant suspicion and accusations from those around him, humiliated him and caused immense mental anguish. The situation became unbearable and, with the help of a friend, he fled to [Country 7] in search of safety and peace. [31]
[31]The brother's statement, at page 2.
The brother also claimed that the ‘CID officers and other authorities in Sri Lanka have [the applicant’s] name flagged in the search records due to alleged associations with certain organisations’. He claimed that there was a ‘high likelihood’ that the applicant would be arrested at the airport if he returned to Sri Lanka. [32]
[32]The brother's statement, at page 2. Reproduced as written.
The brother gave evidence at the second hearing substantially the same as his statement, with some minor variations such as saying that it was one week after the first interview with the police that he was arrested, rather than it being ‘a couple of weeks later’ as set out in the statement. He omitted any reference to the police accusing the applicant of funding and being actively involved in the activities of Thowheed and suggesting he had financially supported the bomber. He also confirmed that he did not witness the alleged physical attack referred to in his statement by Moulavi himself and his followers on the first applicant (which the first applicant had not referred to in his oral or written evidence). [33]
[33]The brother’s statement, on page 1.
100. The brother added another incident at the hearing where he received telephone calls telling him he must come in, which apparently occurred before the police went to his home in May 2019 when he was not home.
101. He was asked about the allegation that the authorities had his brother’s name flagged in their search records due to his alleged associations with certain organisations. He said his basis for this was that the CID showed him their ‘record book’ which showed his brother’s name and address. He said his own statement was also recorded in this book.
102. He was also examined on his assertion that there was a high likelihood that the applicant would be arrested the airport. In the end, he agreed that this was a guess.
103. The brother confirmed that his statement was true and complete, with the changes made above. He said that that was prepared with the assistance of a friend in [Country 7]. He spoke to the friend in Tamil and a friend wrote it in English for him. He said it was a long process. He said he was confident that the English translation was correct. It was then sent to the representative for lodging with the Tribunal.
104. The Tribunal found the brother to be a generally credible and reliable witness. He made appropriate concessions, about not witnessing the alleged physical attack on the first applicant and his speculation about the likelihood of the first applicant’s arrest if he returned. The variations in his oral and written evidence were minor, save for his omission at the hearing of the suggestions by the police that the first applicant was funding the Thowheed group and Easter bomber. Those omissions were material.
Summary of findings on the Easter bombings claim
105. The Tribunal accepts and finds that:
a.the first applicant’s brother was approached by the Sri Lankan CID in April and May 2019, detained and interrogated about the first applicant;
b.the first applicant was then a person of interest to the Sri Lankan authorities because of the Easter bombings which had just taken place in late April 2019, due to his past connections to the Thowheed group and [Town 1], with which the lead bomber was connected.
106. The Tribunal does not accept and rejects that:
a.the first applicant was a significant person of interest to Sri Lankan authorities in 2019 or that he is in 2024 such a person; and
b.the police accused the first applicant of funding and being actively involved in the NTJ’s activities and suggested that he had financially supported the lead bomber.
No other claims
107. These were his only claims for protection. The Tribunal’s own review of the material before it does not suggest or disclose any other claim open to the applicant which clearly emerges from or on the material before it.
REASONS FOR THE TRIBUNAL’S DECISION
Assessment of refugee criterion
108. To be eligible for the grant of a protection visa as a refugee, it must be established that the applicant has a well-founded fear of persecution in Sri Lanka. This requires, among other things, establishing that there is a real chance he would be persecuted, if he returned there, because of his race, religion, nationality, membership of a particular social group or political opinion. A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility, even if it is below 50 per cent: Chan v MIEA (1989) 169 CLR 379.
109. The persecution must involve ‘serious harm’ to the person: s 5J(4)(b). For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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; and, (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
110. After considering some refugee matters common to both claims, the Thowheed Sufi and Easter bombings claims will be considered separately below.
Subjective fear of persecution
111. The Tribunal accepts, with some reservations based on its assessment of his credibility as to the Thowheed Sufi claim, that the applicant does fear persecution in the foreseeable future if he returns to Sri Lanka because of his claims: in particular because of his past Thowheed sect membership and history in [Town 1] and because of the Easter bombings.
Refugee reasons/nexus
112. Based on its findings, the Tribunal accepts that the applicant any harm would be directed at him because of these claims for a refugee reason, as required by s 5J(1)(a): namely, his religion. His race or ethnicity as a Ceylon Moor could also be part of the reason but this was not claimed, there is overlap between religion and ethnicity for Muslims and the significant reason for any harm is his religion.
Relevant country information on Sri Lanka concerning the claims
113. There were national elections in Sri Lanka on 21 September 2024, with the new left-leaning President-elect Anura Kumara Dissanayake of the National People’s Power alliance being successful, replacing the outgoing President Wickremesinghe. There are no reports of serious unrest or problems at the time of this decision as a result of this change of government. Its impact on the matters discussed in the country information below has not yet been made clear; but given the political orientation of the new government, the Tribunal thinks it is unlikely that it would materially change the situation in Sri Lanka in the foreseeable future for persons in the position of the applicant.[34]
[34] ‘LEFT-LEANING LEADER WINS SRI LANKA ELECTION IN POLITICAL PARADIGM SHIFT’, BBC NEWS, 22 SEPTEMBER 2024, ACCESSED ON 24 SEPTEMBER 2024 AT ‘LEFT-LEANING ANURA DISSANAYAKE CLAIMS VICTORY IN SRI LANKA’S PRESIDENTIAL ELECTION AFTER SECOND VOTE COUNT’, ABC NEWS, 23 SEPTEMBER 2024, ACCESSED ON 24 SEPTEMBER 2024 AT ‘CURFEW LIFTED, CHANGE ARRIVES: A FIRSTHAND VIEW OF SRI LANKA’S HISTORIC ELECTION’, LISA SINGH, LOWY INSTITUTE, ‘THE INTERPRETER’, 23 SEPTEMBER 2024, ACCESSED ON 24 SEPTEMBER 2024 AT THE 2024 SRI LANKAN PRESIDENTIAL ELECTION WAS DECLARED PEACEFUL BY THE COMMONWEALTH OBSERVER GROUP: ACCESSED ON 11 OCTOBER 2024 AT THE EUROPEAN UNION ELECTION OBSERVATION MISSION FOR SRI LANKA (EU EOM) SAID IN A PRELIMINARY REPORT THAT OVERALL THE ELECTION PROCESS WAS CONDUCTED INDEPENDENTLY AND WITH TRANSPARENCY, THAT FUNDAMENTAL FREEDOMS WERE BROADLY RESPECTED, THAT THE ELECTION DAY WAS PEACEFUL AND FESTIVE AND THAT THE CAMPAIGN WAS PEACEFUL AND ENERGETIC: 'PRELIMINARY STATEMENT - RESPECT FOR THE DEMOCRATIC PROCESS OUTWEIGHED MINOR DEFICIENCIES IN LAW AND PRACTICE', EUROPEAN UNION ELECTION OBSERVATION MISSION SRI LANKA, EUROPEAN UNION, 23 SEPTEMBER 2024, P.1.
114. As to Muslims in general, the DFAT Report 2024 relevantly discloses or assesses (with some underlining added for emphasis) that:
a.Islam is the third largest religion in Sri Lanka, with 9.7% of the population following that faith (after Buddhism with 70.2% and Hinduism with 12.6%: [3.21];[35]
[35]These citations are references to the relevant paragraph numbers in the DFAT Report.
b.Muslims are considered a separate ethnic and religious group: [3.2, 3.21];
c.the Sri Lankan constitution guarantees freedom of religion. It accords Buddhism a ‘foremost place’ and obligates the state to ‘protect and foster’ Buddhism while protecting the rights of religious minorities. Minorities have the constitutional right to manifest their religion in public or private worship, observance, practice and teaching: [3.22];
d.Sri Lanka recognises religious holidays for Muslims and religious communities are free to operate schools and classes teaching their religion: [3.23];
e.it is a criminal offence to insult a religion, promote religious hatred or attack a place of worship. The Wickremesinghe Government (the former government) sought to crack down on perceived threats to religious harmony, including under the International Civil and Political Rights (ICCPR) Act No.56 (2007) (ICCPR Act). This law prohibits religious hatred that constitutes incitement to discrimination, hostility or violence. Offences under the ICCPR Act are non-bailable for a period of 14 days and carry a maximum prison sentence of 10 years. Critics say the ICCPR Act is being used as a de facto anti-blasphemy law, particularly against people who denigrate Buddhism: [3.25];
f.Sri Lanka has a history of religious tolerance and peaceful co-existence between religions. This tradition has become strained by the Easter Sunday terrorist attacks in April 2019 and the emergence of Sinhala Buddhist nationalist groups. Religious minorities can sometimes face threats and intimidation that restrict their ability to worship freely, especially in rural areas. 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: [3.26];
g.DFAT assessed that, while laws and official policies generally do not discriminate on the basis of religion, religious minorities can face a moderate risk of official discrimination from lower-level officials and police, particularly in rural areas and/or where Buddhists form a majority. Religious minorities, particularly Muslims, face a moderate risk of societal harassment by Sinhala Buddhist nationalist groups, although the influence of these groups has decreased under the former Wickremesinghe Government. DFAT assesses that individuals perceived to be denigrating Buddhism face a moderate risk of arrest, detention and prosecution: [3.28];
h.Muslims live throughout Sri Lanka, including in Colombo and Kandy, with larger communities located in the east (Ampara, Batticaloa, Trincomalee), north (Mannar) and northwest (Puttalam). Muslims form the single largest religious community in the Eastern Province. Nearly all Sri Lankan Muslims (98 per cent) are Sunni. A small number of Muslims follow the Sufi tradition. Muslims predominantly speak Tamil as their first language: [3.29].
115. Focussing on the effect of the Easter bombings on the treatment of Muslims, the DFAT Report 2024 relevantly discloses or assesses (with some underlining added for emphasis) that:
a.the Muslim community operates madrassas, although these have come under scrutiny following the Easter Sunday terrorist attacks perpetrated by individuals from [Town 1] (the first applicant’s hometown), a Muslim town near Batticaloa, in April 2019: [3.30];
b.the Prevention of Terrorism Act (PTA) was enacted as a temporary measure in 1979 in response to separatist insurgencies and was made permanent in 1982. The PTA, which is not part of regular criminal law, contains a broad a definition of terrorism; permits arrest for unspecified ‘unlawful activities’; allows suspects to be held in initial detention for 72 hours (i.e. before they are produced before a magistrate) and, should there be sufficient evidence that an offence has been committed, detained without charge for up to 12 months (previously 18 months); and recognises confessions as legally admissible, including confessions obtained without the presence of a lawyer. The PTA has been routinely used to enable the prolonged detention, often without charge, of those assessed to pose a threat to Sri Lanka’s security. The PTA has been used primarily against ethnic minorities, historically against Tamils suspected of involvement with the LTTE and, since April 2019, Muslims suspected of involvement in the Easter Sunday terrorist attacks: [4.38–4.39];
c.Muslims reported 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. A State of Emergency imposed immediately following the attacks prohibiting clothing covering one’s face in public was widely understood to target the Muslim community. 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: [3.32];
d.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. According to in-country sources, lawyers and families had limited access to PTA detainees and, where visits were granted, may be subjected to strip searches: [3.33];
e.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: [3.34];
f.in-country Muslim sources reported that the most acute pressures experienced by their community following the Easter Sunday terrorist attacks had subsided, and that Muslims were now generally able to practise their faith freely. However, in-country Muslims also reported that they continued to experience harassment, intimidation and disinformation, and said the threat of arrest under the PTA was used to threaten the community, particularly Muslims in [Country 1]: [3.35];
g.in-country Muslim sources reported ongoing monitoring, including for signs of extremism. Those that face the highest risk of monitoring included organisations that receive funding from Islamic countries. Monitoring can take the form of telephone calls, visits and physical surveillance. In-country Muslim sources told DFAT that mosques and madrassas were monitored by the State Intelligence Service (SIS) and the TID: [3.36];
h.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: [3.38];
i.DFAT assessed 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: [3.39].
116. Following the Easter bombings, there were reports that some Muslims were detained because of their close relationship with Muslim extremists but others were arrested for reasons that included possessing Arabic writing, their clothing or because of their travel history. [36]
[36] 'REPORT OF A HOME OFFICE FACT-FINDING MISSION TO SRI LANKA', UK HOME OFFICE, 20 JANUARY 2020, P.40.
117. There were no major instances of interreligious violence involving Muslims in 2023. [37] The National Christian Evangelical Alliance of Sri Lanka (NCEASL) reported 14 incidents against Muslims in 2022. [38]
[37] 'USCIRF HEARING - CHALLENGES TO RELIGIOUS FREEDOM IN SRI LANKA - WRITTEN TESTIMONY - ALAN KEENAN, SENIOR CONSULTANT, INTERNATIONAL CRISIS GROUP (ICG)', ALAN KEENAN, UNITED STATES COMMISSION ON INTERNATIONAL RELIGIOUS FREEDOM (USCIRF), 7 MAY 2024, P.3; 'FREEDOM IN THE WORLD 2024 - SRI LANKA', FREEDOM HOUSE, 18 APRIL 2024, SECTION D2, P.9.
[38] '2022 REPORT ON INTERNATIONAL RELIGIOUS FREEDOM: SRI LANKA', US DEPARTMENT OF STATE, 15 MAY 2023, P.2; 'RELIGIOUS VIOLENCE AGAINST CHRISTIANS: DISRUPTIONS AND DISTRACTIONS', VERITE RESEARCH, NATIONAL CHRISTIAN EVANGELICAL ALLIANCE OF SRI-LANKA, 2023, P.38.
118. On 26 July 2023, the government removed a ban on five of the 11 Muslim groups that were proscribed in 2021 under the PTA. The delisted organizations included United Thawheed Jamma’ath. [39]
[39] US DEPARTMENT OF STATE, SRI LANKA 2023 HUMAN RIGHTS REPORT, P. 21.
119. The applicant’s representative also provided to the Tribunal four other articles or reports said to be relevant to an assessment of the prevailing general situation in Sri Lanka for Muslims and Thowheed adherents in particular as follows:
a.an article by Amnesty International dated 18 October 2021 and entitled ‘Sri Lanka: authorities must end violence and discrimination against Muslims’ (the Amnesty article). According to this article, Sri Lanka’s Muslim community suffered consistent discrimination, harassment and violence since 2013 ‘amid surging Sinhala-Buddhist nationalism’. It claimed that the hostility towards Muslims increased markedly after the Easter bombings in 2019 and that attacks were made against Muslims in several towns in the North-Western Province of Sri Lanka in May 2019. It asserted that the government had continued ‘to target and scapegoat the Muslim population to distract from political and economic issues’. As part of this, it said that the authorities had used the PTA to target Muslims;
b.an opinion piece from Al Jazeera dated 12 April 2021, entitled ‘What is behind the anti-Muslim measures in Sri Lanka?’ (the Al Jazeera article). This piece referred to a Sri Lankan government announcement on 13 March 2021 banning the wearing of the burqa and closing more than 1,000 Islamic schools in the country;
c.a report from the BBC in Colombo dated 14 January 2022, entitled ‘Discrimination and harassment haunt Sri Lanka’s Muslims’ (the BBC report). This report referred to a prominent Sri Lankan Muslim civil rights lawyer (Hejaaz Hizbullah) who had been imprisoned for about 20 months under anti-terrorism charges, after the Easter bombings.[40] Activists had claimed that his arrest was part of ongoing harassment of the Muslim community in recent years. It was also claimed that the Easter bombings were ‘a watershed moment’ and that after those attacks, the Muslim community ‘was demonised’. This last comment strikes the Tribunal as hyperbole;
[40]According to the advocacy and activist group Lawyers for Lawyers, Mr Hizbullah was arrested under the PTA in April 2020, was released in February 2022 on bail and his trial was ongoing in September 2024: ‘Ongoing trial of Hejaaz Hizbullah’ dated 24 September 2024, accessed on 8 November 2024 at
d.an article dated 14 January 2022 from an online newspaper in Sri Lanka called the Daily FT entitled ‘A mischievous missive’ (the Daily FT article). This article referred to a fatwa being resurrected against Moulavi Rauf, the Sufi leader. The applicant was asked what the significance was of this article, given that it showed adverse action was taken against his religious opponents. The applicant said that it shows that Muslims are having problems in Sri Lanka. The applicant’s representative in his post hearing submissions dated 9 September 2024 made a different point: he submitted the article highlighted ‘internal divisions within the Muslim community over the interpretation of Islam’ which would likely further complicate the applicant‘s situation.
120. The applicants’ representative relevantly submitted after the hearings on 9 September 2024 that:
a.the DFAT Report confirmed that investigations into Thowheed groups were ongoing (the Tribunal accepts that investigations into Muslim extremism and terrorism are ongoing but does not accept that the DFAT Report confirms that investigations into Thowheed groups are ongoing);
b.the DFAT Report highlighted the use of ‘draconian laws’ such as the PTA disproportionally against Muslims particularly in [Town 1] (the Tribunal accepts that the PTA was being used disproportionally against Muslims particularly in [Town 1] in late 2019 after the Easter bombings but does not accept that is still being so used);
c.the wide circulation of the first applicant’s photograph in social media significantly increased the likelihood that he would come to the adverse attention of authorities if he returned to Sri Lanka (the Tribunal does not accept that this was widely circulated, or that its limited circulation in 2017 or before 2020 ‘significantly increased’ the likelihood he would come to the attention of authorities if he now returned).
121. Based on this country information and the material before the Tribunal, the Tribunal relevantly concludes that in general:
a.Muslims face discrimination in Sri Lanka, particularly from the Sinhalese majority and to a lesser extent from the authorities;
b.such discrimination does not in general rise to the level of persecution;
c.however, this discrimination increased after the Easter bombings in 2019 although now it has subsided from its peak in about late 2019;[41]
[41]At the second hearing, the first applicant took issue with the suggestion that the risks to Muslims had ‘subsided’ lately, saying that it could all worsen quickly and soon. His representative also made a similar point, given the complexities in Sri Lanka with its minorities, extremism and even terrorism. Nevertheless, in the Tribunal’s view, based on DFAT’s assessment, the risks have subsided in the five years since the Easter bombings: whether they might change or not in the future, there is no rational basis for assessing that they will worsen in the foreseeable future, and the complexion of the new government suggests that they will not.
d.those suspected of connections to Islamic extremists (which would include Thowheed groups and with connections to such groups in [Town 1]) face a higher risk of discrimination and also of monitoring, interrogation, detention and arrest, from Sri Lankan authorities or from the general Sri Lankan community, particularly the Sinhalese majority, though the risks have diminished since about late 2019;
e.these risks could be exploited by Sinhalese activists or Muslim opponents of such individuals.
The Thowheed Sufi claim
Well-founded fear of persecution concerning this claim
122. As set out above, the Tribunal does not accept that the applicant suffered any harm, mistreatment or threats as a result of the 2004 clash or that the 2015 incident took place. The applicant continued to live in or repeatedly returned to [Town 1], as set out above, despite the claimed harms and threats (and acknowledged at the hearings that he was not in fear of his life in 2008 when he returned). His wife and any children lived mainly in [Town 1] between 2008 and 2015 without any claimed harm. He has maintained properties in [Town 1] and Colombo. The Tribunal is not persuaded that he had a genuine fear of persecution based on this claim, based on his repeated returns and residence there, and that of his family. He did not claim that his properties and family still living there had been harmed by the Sufis or the authorities they control since he left. It is not satisfied that the first applicant suffered any serious harm, within the scope of the Act, in the past in Sri Lanka as a result of this claim, whether by the Sufis, the authorities or anyone else. Any prospect of serious harm to the first applicant based on this claim in the foreseeable future is remote. The country information is also consistent with this. Although there is some risk of discrimination in general to Muslims (putting to one side his Easter bombings claim), the prospect of this rising to persecution in his case for this claim is remote.
123. Accordingly, the Tribunal does not accept that the applicant has a well-founded fear of persecution in the foreseeable future based on this claim.
124. It does however accept however he was involved with the Thowheed group and had a fractious relationship with the Sufis up to about 2004 or 2005. It also accepts there could have then been some bad blood between him and the Sufis because of this and because of his combative conviction in the rightness of his religious views. He demonstrated to the Tribunal at the hearings his capacity to be disputatious.
125. For these reasons, based on its findings, the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm because of his Thowheed Sufi claim in the foreseeable future if he returns to Sri Lanka.
The Easter bombings claim
Well-founded fear of persecution concerning this claim
126. The applicant did not nor could he claim any past harm in Sri Lanka based on this claim because he has been in Australia since December 2015, over three years before the Easter bombings.
127. However, past harm is not a necessary condition to a finding of a real chance of serious harm in the future. An applicant does not have to show past persecution to demonstrate a well-founded fear of being persecuted.[42] An applicant who belongs to a persecuted group might establish a well-founded fear, even though the applicant has not personally suffered harm in the past.[43]
[42]In Abebe v The Commonwealth (1999) 197 CLR 510, Gummow and Hayne JJ at [192] ‘[r]egrettably, cases can readily be imagined where an applicant’s fear is entirely well founded but the particular applicant has never suffered any form of persecution in the past’.
[43]See Ponnundurai v MIMA [2000] FCA 91 at [13] and [15].
128. The Tribunal has accepted his brother’s evidence that the Sri Lankan authorities were interested in the first applicant in April and May 2019, because of his connection to the Thowheed group in [Town 1]. It will accept for the purpose of the hearing that the police had some camera footage of him entering the Thowheed mosque. It has also accepted that there were screenshots of the first applicant with limited circulation connecting him to NTJ and the bombings. It accepts also that he had a fractious relationship with the Sufis in [Town 1] up to 2004 and 2005.
129. However, it does not accept that he was or would now be regarded as a leading, prominent or significant figure in the Thowheed group by the Sri Lankan authorities or the Sufis.
130. The country information discussed above suggests that first applicant would face a high risk of monitoring, arrest and detention, including under the PTA, if he were suspected of having extremist views or association with the NTJ; as well as a risk of harassment, intimidation and disinformation and the threat of arrest under the PTA used against Muslims in [Town 1].
131. In the Tribunal’s view, the prospects of such risks to the applicant are low: his connections with Thowheed are long past; his involvement with that group was at a lower level and purely religious; the interest shown in him in 2019 by the police and by the limited social media in before 2020 was not significant and was explicable in the light of the then recent Easter bombings; there is no good reason to think this interest would have continued or been maintained since then; the hostility towards him of the Sufis is long past; the country information suggests that the risks to Muslims have subsided since immediately after the Easter bombings: the state of emergency ended in August 2019, banned Thowheed groups have been permitted since 2023, most of the Muslims arrested under the PTA have been released, there was no major religious violence against Muslims in 2023 and so on, as set out above.
132. However, based particularly on the strong country information from DFAT as to its assessments in May 2024 of the risks to Muslims from [Town 1] who are suspected of links to extremist groups, in the Tribunal’s view, there is a chance he would be suspected of having extremist views or an association with the NTJ, whether by the authorities or the local Sufis or Sinhalese majority who might urge this to the authorities or take their own action. There is a chance of adverse interest being taken in him by hostile actors.
133. Although such prospects are low, now over five years after the Easter bombings, the country information suggests they still exist. In the Tribunal’s view, though the prospects are low, they are not remote, especially when his situation is considered cumulatively and over time in the foreseeable future, given his circumstances. There is a real chance he would be so suspected and then would suffer monitoring, interrogation, arrest and detention, including under the PTA, or harassment, intimidation and disinformation and the threat of arrest under the PTA. Such potential harms, viewed cumulatively and over time, could come within the scope of ‘serious harm’.
134. Accordingly, in the Tribunal’s assessment, because of the individual circumstances of the applicant and particularly the country information, considered separately, together and over time, there is a real chance (albeit low) of serious harm to the first applicant in the foreseeable future if he returns to Sri Lanka, by reason of his former religious Thowheed affiliation and connection to [Town 1].
135. For these reasons, the Tribunal is satisfied that there is a real chance the applicant will suffer serious harm because of his Easter bombing claims in the foreseeable future if he returns to Sri Lanka.
Other refugee matters
136. This real chance applies to all areas of Sri Lanka (through the involvement of the various arms of the Sri Lankan authorities, but particularly the police).
137. The agents of harm include the state and its arms, and the community generally (but particularly the Sufis and Sinhalese majority). Further, the essential and significant reason for such harm is the first applicant’s religious affiliations under consideration, and such persecution involves systematic and discriminatory conduct, as required by s 5J(4).
138. The Tribunal does not consider that effective protection measures are available to the applicant in Sri Lanka under ss 5J(2) and 5LA. The relevant State authorities are the police. They are themselves agents of the potential harm. They are unlikely to protect him from other harm by the community generally. They could prove reluctant to help if others threaten him or receptive to urgings by the Sufis or the Sinhali to take action against him.
Conclusion on refugee criterion
139. For the above reasons, the Tribunal finds that:
a.the first applicant has a well-founded fear of persecution based on his Easter bombings claim;
b.there is a real chance he would be persecuted for that reason;
c.the real chance of persecution relates to all areas of Sri Lanka; and
d.effective protection measures are not available to the first applicant.
140. The Tribunal is therefore satisfied, on the material before it, that the first applicant has a well-founded fear of persecution solely because of his Easter bombings claim.
141. Accordingly, the Tribunal is satisfied that the first applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection criterion
Having concluded that the first applicant meets the refugee criterion in s 36(2)(a), it is unnecessary for the Tribunal to consider the alternative complementary protection criterion in s 36(2)(aa) of the Act.
Assessment of family member
143. For the reasons set out above, the Tribunal is satisfied that the first applicant is a person in respect of whom Australia has protection obligations for the purposes of ss 36(2)(a).
The Tribunal accepts that the second, third, fourth and fifth applicants are members of the same family unit as the first applicant for the purposes of ss 36(2)(b), treating him as the ‘family head’ under reg 1.12(4), such applicants being his spouse and dependent children.
145. As such, the fate of his other family members’ application for protection depends on the outcome of his application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b) and the remaining criteria for the visa are met in respect of the first applicant.
Protection in another country
146. As noted above, the applicant has lived in or travelled to several countries. However, there is no evidence before the Tribunal to indicate that the applicant presently has any right to enter and reside in any other country, apart from his country of nationality, Sri Lanka. Accordingly, s 36(3) of the Act does not apply in this case.
Conclusion
147. For the above reasons, the Tribunal is satisfied that Australia has protection obligations in respect of the first applicant pursuant to s 36(2)(a) of the Act.
148. The Tribunal is also satisfied that the other applicants are members of the same family unit as the first applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the application by the first applicant. 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 for the first applicant. Accordingly, the Tribunal has concluded that the decision under review should be remitted for reconsideration on this basis.
DECISION
149. The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that:
(i)the first applicant meets s 36(2)(a) of the Migration Act; and
(ii)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 applicant.
Representative for the applicants: Mr Rajamanoharan Vadivelu
Dates of hearings: 23 August 2024 and 3 September 2024
Date of last submissions: 9 September 2024
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.
…
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