2111860 (Refugee)

[2024] AATA 4069

2111860 (Refugee) [2024] AATA 4069 (20 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Miss Saemeh Ghasemi

CASE NUMBERS:  2111727

2111861
2111860
2111864

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Jason Pennell

DATE:20 September 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i) that the applicant satisfies s 36(2)(a) of the Migration Act; and

(ii) that the second, third and fourth applicants satisfy s 36(2)(b)(i) of the Migration Act, based on their membership of the same family unit as the applicant.

Statement made on 20 September 2024 at 5:14pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – ethnicity, religion and political opinion – Tamil Muslim – approached to sell property by individuals with political, military or underworld connections – threats and extortion – rented part of house to Muslim politician – inaction or harassment by police – hit-and-run accident – armed revolt and general violence by Buddhist nationalists – brother and cousin killed – return from living and working in another country – vague claims and evidence, and no supporting evidence – country information – economic conditions, official and social discrimination, threats and violence, and inadequate state protection – members of family unit wife and children – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1)(a), 5H(1)(a), 5J(1)(a), (4)(c), 36(2)(a), (b)(i), 65, 91R(1)(c)
Migration Regulations 1994 (Cth), Schedule 2

CASES
Applicant A v MIEA (1997) 190 CLR 225
Calado v MIMA (1998) 81 FCR 450
Chan v MIEA (1989) 169 CLR 225
Chan v MIEA (1989) 169 CLR 379
Chen Shi Hai v MIMA (2000) 201 CLR 293
MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559 at 572
MIMA v Zheng [2000] FCA 50
Nagalingam v MILGEA (1992) 38 FCR 191
Pei Lan He v MIMA [2001] FCA 446
Periannan Murugasu v MIEA (1987) 217 ALR 17
Prasad v MIEA (1985) 6 FCR 155
Ram v MIEA (1995) 57 FCR 565
Savvin v MIMA [1999] FCA 1265
VCAD v MIMIA [2004] FCA 1005
VSAI v MIMIA [2004] FCA 1602
Wang v MIMA (2000) 105 FCR 548
Woudneh v Inder (FCA, Gray J, 16 September 1988)
WZAOO v MIAC (2012) 134 ALD 332
W161/01A v MIMA [2002] FCA 285
MIMA v Respondents S152/2003 (2004) 222 CLR 1

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 August 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants claim to be citizens of Sri Lanka. [The first applicant] (the ‘applicant’) and [the second applicant]both made separate protection visa applications dated 3 May 2016.[1] [The third applicant] and [the fourth applicant] were both included in the second applicant’s protection visa application as members of the same family unit.[2]

   [1]    Applicant’s Protection Visa Application dated 3 May 2016, Dept File No. [Reference 1], Doc ID [number]; Second applicant’s Protection Visa Application dated 3 May 2016, Dept File No. [Reference 2], Doc ID [number]

   [2]    Third applicant’s Protection Visa Application dated 3 May 2026, Dept File No. [Reference 3], Doc ID [number]; Fourth applicant’s Protection Visa Application dated 3 May 2026, Dept File No. [Reference 2], Doc ID [number]

3. The delegate refused to grant the visa on the basis that the applicants are not people to whom Australia owes protection obligations as outlined in s 36(2)(a) or (aa) of the Act and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (ss 36(2)(b) and 36(2)(c) of the Act).

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

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

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

4. 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.

5. 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

1. 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

APPLICANTS’ CLAIMS AND EVIDENCE

Applicants’ identity and country of reference

1. The applicants claim to be citizens of Sri Lanka. They claim that:

   (a)the applicant was born in Kandy, Central Province Sri Lanka on [Date].[3]

   (b)the second applicant was born in Kandy, Central Province Sri Lanka on [Date].

   (c)the third applicant was born in [City, Country] on [Date].

   (d)the fourth applicant was born in Kandy, Central Province Sri Lanka on [Date] .  

   [3]    Applicant’s Protection Visa Application dated 3 May 2016, Dept File No. [Reference 1], Doc ID [number]

2. The applicant provided the Department with a copy of his birth certificate,[4] Sri Lankan National Identity Card[5] and Sri Lankan passport.[6] The second, third and fourth applicants provided the Department with a copy of their birth certificates[7] and Sri Lankan passports.[8]  There is no evidence to suggest these documents are bogus documents and, as such, the Tribunal accepts each applicant’s identity.

   [4]    Applicant’s birth certificate, Dept File No. [Reference 1], Doc ID [number]

   [5]    Applicant’s National Identity Card, Dept File No. [Reference 1], Doc ID [number]

   [6]    Applicant’s passport, Dept File No. [Reference 1], Doc ID [number]

   [7]   Second applicant’s birth certificate, Dept File No. [Reference 2], Doc ID [number]; Third applicant’s birth certificate, Dept File No. [Reference 3], Doc ID [number]; Fourth applicant’s birth certificate, Dept File No. [Reference], Doc ID [number]

   [8]    Second applicant’s passport, Dept File No. [Reference 2], Doc ID [number]; Third applicant’s birth certificate, Dept File No. [Reference 3], Doc ID [number]; Fourth applicant’s birth certificate, Dept File No. [Reference], Doc ID [number]

3. The third applicant was born in [Country 1] on [Date]. The Department has assessed that she is not a citizen of [Country 1] and therefore not a dual citizen.[9] As such there is no evidence to indicate that the applicants have the right to enter or reside in any other country either permanently or temporarily, other than Sri Lanka. As such, based on the applicants’ evidence and the documents provided by them to the Department, the Tribunal finds that the applicants are citizens of Sri Lanka and as such their protection claims will be assessed against Sri Lanka as the country of reference and ‘receiving country’ respectively.

   [9]   Department s 91P Assessment dated 26 August 2019, Dept File No. [Reference 3], Doc ID [number]

Member of the same family unit – ss 36(2)(b) and (c)

1. Sections 36(2)(b) and (c) provide as an alternative criterion (to the refugee and complementary protection criteria) that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include a spouse of the family head and child of the family head.

2. In this case the applicant and the second applicant claim they were married on [Date][10] and that the third and fourth applicants are their children. The Department was provided with a copy of their marriage certificate confirming that they were married in Sri Lanka on [Date]. Based on the applicant’s and second applicant’s evidence and the marriage certificate provided the Tribunal accepts that they are married as claimed. In addition, the third and fourth applicants’ birth certificates record the applicant and the second applicant as their parents. As a result, the Tribunal accepts and finds that the applicants are all members of the same family unit.

Applicants’ migration history

[10]  Marriage certificate dated [Date], Dept File No. [Reference 2], Doc ID [number]

1. The applicants’ migration history is as follows:[11]  

   [11]  Applicants’ Protection Visa Decision Record dated 20 August 2021, Dept File No. [Reference 1], Doc ID [number]; Applicants movement records, AAT file No. 2111727, Doc IDs 13188230, 13188431, 13188499, 13188555.

Date	Event
1999–2006	Applicant resided in [Country 1] as a resident
2000–2002	Second applicant resided in [Country 1] as a resident[12]
[Date]	Third applicant born in [Country 1][13]
[Date]	Third applicant relocated to Sri Lanka[14]
[December] 2009	Second applicant arrived in Australia on a visitor visa[15]
[March] 2010	Second applicant’s visitor visa expired; departed Australia
[February] 2016	Applicants arrived in Australia on visitor visas
3 May 2016	Applicants applied for protection visas

[12]   Second Applicant’s Protection Visa Decision Record dated 20 August 2021, Dept File No [Reference 2] Doc ID: [number]

[13]  Third Applicant’s Protection Visa Decision Record Dept File No. [Reference 3] Doc ID [number]

[14]   ibid

[15]  Second Applicants Protection Visa Decision Record dated 20 August 2021, Dept File No [Reference 2] Doc ID: [number]

Claims for protection

1. During the hearing the second, third and fourth applicants confirmed to the Tribunal that they all relied on the same claims as detailed by the applicant. The applicant[16] and the second applicant[17] made the same claims in each of their protection visa applications as follows:

   [16] Applicant’s Protection Visa Application dated 3 May 2016: Dept File No. [Reference 1], Doc ID [number]

   [17]  Second applicant’s Protection Visa Application dated 3 May 2016, Dept File No. [Reference 2], Doc ID [number]

   Why did you leave that country(s)?

   I have been facing ethnic and some political problems in Sri Lanka. I tried to live in other countries but failed.

   Please refer to the attached for further information.

   What do you think will happen to you if you return to that country(s)?

   We have facing problems up to our departure to Australia. If we return to the country, the same problems will arise. We do not want to face embarrassing situation in Sri Lanka.

   Please refer to the attachment for further information.

   Did you experience harm in that country?

   Refer to the attachment.

   Did you seek help within the country(s) after the harm?

   Yes. Every time when we were facing problems, we tried to seek help from the Government authorities such as police and the relevant government departments unfortunately we did not get any or sufficient help.

   Please refer to the attachment for further information.

   Did you move or try to move to another part of that country(s) to seek safety?

   Yes. We moved to several parts of the country but the problems did not stop and came in different ways.

   Please refer to the attachment for further information.

Do you think you will be harmed or mistreated if you return to that country(s)?

Yes. We have been faced the harm and mistreatment already. We do not believe the situation has been changed during this couple of months.

Please refer to the attachment for further information.

Do you think the authorities of that country(s) can and will protect you if you go back?

We do not think the authorities will protect us. There are religious extremists are directing to the current government. Still there is no political freedom in the country.

Do you think you would be able to relocate within that country(s)?

No. We have been already tried. Unfortunately, we had the same bad experiences.

Please refer to the attachment for further information.

1. The delegate summarised the applicant’s claims as follows:[18]

   [18] Applicants’ Protection Visa Decision Record dated 20 August 2021, Dept File No. [Reference 1], Doc ID [number].

·The 1987–1989 conflict between the JVP (Janatha Vimukthi Peramuna) and the Sri Lankan army resulted in many casualties among whom was his brother who was killed by terrorists together with other people on [Date] 1988.

·In 1989, the applicant escaped Sri Lanka for [Country 1] where in 1990 he was granted a Permanent Residency visa.

·In 2000, the applicant married his wife. She decided not to renew her visa and voluntarily return to Sri Lankan after the police arrested him in 2002.

·In 2007, the applicant returned to Sri Lanka and in 2008, a person with “underworld” connections wanted to purchase the applicant’s commercial property for a lower price. The applicant was threatened and to avoid any complications the applicant stayed away from his home.

·In 2011, the applicant sold the property for a good price and invested the money in real estate and a business.

·The applicant continued receiving threats to which he did not respond. On 1 June 2012, an explosion occurred in his bedroom.

·In 2014, the applicant and his family resided in [Location 1] at the two-storey house belonging to his father-in-law. A politician rented the first floor of the house and someone fired a gun at the first floor.

·In October 2015, a group of people and the police attacked his brother. His brother was in a critical condition and was taken to a hospital. Although the applicant tried to bring the people responsible to justice, the police failed to apprehend the attackers.

·For the above reasons the applicant fears harm in Sri Lanka.

1. The delegate summarised the second applicant’s claims as follows:[19]

   ·From 2000 until 2002, the applicant resided in [Country 1] with her husband (as his dependant) on his Resident visa. In 2002, she returned to Sri Lanka and followed by her husband in 2007.

   ·In 2011, her husband sold his property, and in 2012, an explosion occurred in their house.

   ·She is ethnically ‘Muslim’ and her religion is Islam. In May 2014, there were violent incidents perpetrated by extremist Buddhists against the Muslim minority and she fears persecution in Sri Lanka because of her religion and ethnic minority as a Muslim.¹⁸

   ·She tried to live in another country but failed.

   ·She and her family tried to seek help from the Sri Lankan police and other authorities, but they did not help them.

   ·For the reasons above, she fears persecution in Sri Lanka.

Applicant’s evidence

[19]  Second Applicants Protection Visa Decision record; Dept File No. [Reference 2] Doc ID [number]

1. In addition to his evidence at the hearing, the applicant’s evidence to the Tribunal was provided in a statutory declaration.[20]

   [20]   Applicant’s Statutory declaration AAT file No. 2111727 Doc ID 13209246

   1.I first arrived in Australia on a Visitor visa which was granted on 7 January 2016. I first arrived in Australia [in] February 2016.

   2.I left Sri Lanka because I am in a desperate state to save my family and myself from the relentless and terrifying threats that had become impossible to escape from the members of Bodu Bala Sena. It was not a simple decision; it came to a matter of life or death. In the face of growing violence and the failure of the police to provide any real protection, I made the decision to flee the country with my family.

   3.My protection claims are rooted in a series of life changing and terrifying events and threats that left my family and me in a constant state of fear for our lives and safety.

   2008–2009 – Initial threats and intimidation.

   4.In late 2007, after giving up my permanent residency in [Country 1], I returned to Sri Lanka with the hope of building a peaceful life with my family. I had bought a commercial property on [Road 1], Kandy, which was rented out as [a business 1].

   5.Between 2008 and 2009, I was looking to sell my commercial property, which was situated in a prominent location on [Road 1] Kandy. During this time, an individual would come as a customer to the [business 1] (the property was rented out as [a business 1]) and eventually showed interest as a broker for the property. This individual mentioned that I should sell the property to people he knew for a cheaper price who turned out to be associates from the anti­Muslim group 'Sinha Le' now part of the extremist anti-Muslim group 'Bodu Bala Sena'. However, I refused to do so as this was a valuable asset to me. This led to him threatening me by revealing that he was an ex-army officer and that he had underworld connections and knew politicians from Sri Lanka Podujana Peramuna (Rajapaksa's political party in power).

   6.I complained against him at the police station, but they threatened me for complaining against the army officer and warned me of false imprisonment and allegations.

   7.I distanced myself from the army officer, realizing he could potentially harm me, and sought temporary protection out of fear in Negombo and [Town 1] between 2008 and 2009 while travelling to Kandy to visit my family who lived in [Location 2]. However, even during this temporary hiding, I continued to receive verbal threats to sell the property to his associates in the 'Sinha Le' group (now Bodu Bala sena) Despite these events, I never expressed my fears to my family.

   8.In late 2009, my wife and I applied for Australian visas. However, my visa was refused while my wife's visa was granted. During the time my wife was away, I continued seeking temporary protection from the army officer and other involved individuals (members of the 'Sinha Le' now Bodu Bala Sena) in Negombo and [Town 1], while also visiting Kandy to check on my children. Despite my efforts, I continued to receive threats to sell the property to them, and I kept delaying buying time. My wife returned to Sri Lanka in March 2010 after her 3-month visit, as she assumed we didn't have any direct problems from the LTTE, despite the general fear everyone had at that time due to unexpected explosions and concerns for the children’s safety when they went to school.

   9.In November 2011, I managed to sell the commercial property to the owners of [Business 2]. I hoped this would end the threats as I would no longer be associated with the property, but instead, they escalated as Sinha Le (now Bodu Bala Sena) members and associates were furious that I disobeyed their demand. In between I started another business with a partner, [a business 1] on [Road 2], Kandy, and a [business 3] venture.

   10.The same individuals, connected to the underworld, political groups, the army officer, and Bodu Bala Sena, began frequenting the [business 1], and over the phone demanding money and other requests and threatening harm. They threatened physical harm to me and my family, including kidnapping, and physical assault. They threatened me with "We can make you disappear without a trace, burning down my properties". The threats later throughout the years escalated to" We know where your children go to school, do you want something to happen to them". The demands and threats were frequently happening weekly. I paid them each time, trying to prevent them, but their demands kept growing.

   11.As time went on, I tried to complain to the police, but they never took me seriously, just as they didn't take any other Muslims or Tamils seriously. Instead, they harassed us for trying to complain. The group targeting me, Bodu Bala Sena threatened that going to the police for help would be useless. So, again, I continued paying them whenever they came around, trying to reduce the amount slowly, hoping they would move on. As I was trying to hide from them and resist their demands, they threatened that something would happen to my family. The initial threats began with them saying they would break my legs if I didn't pay, set my place on fire and eventually kept growing to harm my family and children. They constantly reminded me of how they knew where my children studied. They mentioned that they'll show who they are if i didn't listen to their demands meaning that there'll be serious consequences if i don't listen to them.

2012 – SHELL ATTACK AT OUR [LOCATION 2] RESIDENCE

12.On June 1, 2012, there was a shell attack directed at our house. It came through the roof and landed straight onto our bed. This happened while my wife and children were home. My children had just come home after school. I believe that the people responsible assumed I would be home after Friday Jummah prayer; however, on that day, I wasn't home. At that time, my family didn't know that I had been giving this group money to keep us safe. When the attack took place, my wife immediately contacted me to come home. In the meantime, the neighbours came to our rescue, and the police and bomb squad were called. The local police never made any serious inquiries about this incident or took any action against those responsible for the attack. I've had multiple situations where we never received justice or protection from the police when something happened.      •

2012–2013 – HIT AND RUN INCIDENT IN ‘WHITE VAN’ AND CONTINUED THREATS AND EXTORTION

13.I decided to move to our house in [Location 3] after the shell attack in June 2012 and we moved to [Location 3] the same month after the shell attack. I hoped that things would improve and be safer. During this time, the threats and demands continued over the phone and at the [business 1]. I still gave money to the group of people connected to the threats, who regularly came to the [business 1] demanding money to keep my family safe. I was unsure if they knew we had moved.

14.During our time in [Location 3], my wife and I took turns dropping the kids at the junction near the army camp because the school van didn't come to our house due to its remote location. During these times, I received calls from the same unknown people, informing me of my wife's and children's movements when I wasn’t around.

15.I then decided that I would drop the kids at the junction on my scooter, allowing my wife to stay home, as she would have to walk back alone after dropping them off. However, one morning, after I had dropped the kids off and was heading home, a group of people, with links to the underworld and Bodu Bala Sena, in a 'white van' without a number plate knocked me over in a hit-and-run incident. Miraculously, I survived with only minor injuries. At that time, people were being kidnapped in ‘white vans’, and everyone knew the severity of such incidents and the ‘white vans’.

16.I knew that they were targeting me and other Muslim business owners, knowing we were vulnerable and would give in to their demands to keep our families safe.

17.I went to the police station in [Location 3] seeking help, knowing that the situation could easily escalate into more severe attacks or, even worse, result in physical harm to my family. My family, being minority Muslims, were already targets, and the recent hit-and-run and ongoing threats only heightened my concerns. However, the police refused to take any action. They dismissed my concerns, stating there was no concrete evidence and downplayed the severity of the threats. Despite my pleas, they failed to investigate or provide any protection.

2014 – [LOCATION 1] GUNSHOTS AND CONTINUED THREATS AND EXTORTION

18.Fearing for our safety, we decided to move to my father-in-law's house in [Location 1], I continued giving to the members of-the 'Bodu Bala Sena' money to keep my family and myself safe.

19.On the night of 24th November 2014, a shooting occurred, leaving three bullet holes visible in the lower part of our house, which was rented out to a Muslim Member of Parliament from the United National Party (opposition party) as a political office. Although we were residing upstairs, I firmly believe the attack was directed at me. If they had targeted the politician, they would have attacked during the day. However, this incident happened at night when the office wasn't open, likely to create further fear for our safety. I also believe this was a warning for renting the lower portion of the house to a Muslim member of the opposition political party.

20.Once again, the police took no action against those responsible for the attack. I was always worried whether my wife and children would return home safely every time they went out or to school. In December 2014, we moved back to our previous residence in [Location 2], hoping that being around our extended family would be safer.

2015: CONTINUED THREATS AND FAMILY TRAGEDY

21.In 2015, demands to let the Sri Lanka Podujana Peramuna party organise political meetings at my [Location 4] property began. I refused, not wanting to involve myself in political disputes, but the threats continued, they threatened that they would kidnap my children. My daughter had just turned [Age], which was scarier that something would happen to her. While all this was happening, I did not directly share most of my problems with my family, not wanting to worry them too much. However, I did confide in my brother, [Mr A].

22.At this time, the political party Sri Lanka Podujana Peramuna, alongside Bodu Bala Sena, was targeting Muslim business owners, setting their properties on fire if they refused to meet their demands. The kidnappings and harm to families became more open and frequent. The group threatened that they would harm me and my family if I refused to comply. In fear of being targeted, I agreed to let.them host meetings temporarily when they requested, hoping they would eventually move on. During this period, I tried to leave the country temporarily a few times to show them I was not there, hoping they would move on.

23.Despite my efforts, the threats continued as I refused to meet their initial demands. Fearing for my safety, I fled the country temporarily a few times to show them I wasn't around.

24.While I was away, my brother who already knew about a few incidents, hoped he could keep my wife and family safe without making it too obvious. My brother also lived in [Location 2], and I trusted him to protect my family in my absence.

25.In October 2015, my brother was attacked by the same members of the underworld who were part of the Bodu Bala Sena, an anti-Muslim group with the backing of the political party Sri Lanka Podujana Peramuna and Police, the group that was threatening and demanding me.

26.When my wife and I visited him in the hospital, he mentioned that he was attacked causing serious head trauma while trying to defend me and because of previous conflicts related to the property, he also mentioned that a police officer was also part of the group during that attack. My brother also conveyed that the attackers had threatened to find me and warned that the same thing would happen to me if I didn't meet their demands and tried to get away from them.

27.This incident caused me to remember what happened to my other brother [Mr B], cousin, and brother-in-law [Mr C] who were killed by a group of people involved with the army and political party. They received no justice, and even though my brother [Mr A] wasn't killed in this attack, it was a near-death experience, and I feared this would happen to me or my family.

28.In 1987–1989, there was an armed revolt conducted by the JVP, considered a terrorist group at that time. During this period, many civilians were targeted without reason. On [Date], my [Age]-year-old brother, [Mr B], along with one of my cousins and a few other United National Party supporters, were brutally murdered in [Location 2]. Whilst I was in [Country 1] in [Year], my only sister [Ms D]'s husband, [Mr C], was killed by a member of the Sri Lankan army. He suffered a brutal death due to strikes with a blunt weapon, causing multiple injuries to his face, neck, and stomach. Just like the two previous murders, this murder also went uncharged.

29.When I found out about this and the added threat to me, I went to the police station seeking help, knowing that I was helpless but persistently trying out of desperation, unsure of what to do, and scared for my life and family. However, as always, no actions were taken. My brother's wife and I then went to a senior police officer on November 17th seeking help. They gave us an appointment to meet him on November 20th. However, during this meeting, we were told to keep quiet and I was threatened with false imprisonment or harm if I complaifled [sic] again about the Bodu Bala Sena. I was told to keep quiet because I was a Muslim and should continue to meet their demands no matter what they asked.

30.I knew that my family and I would not be safe anymore as they had already severely hurt my brother and I knew I'd be next. I was anxious, scared to walk out in public, and paranoid that any second something could happen to my family like it did to my brother. I couldn't sleep without keeping one eye open, constantly fearing for our safety.

31.I decided to apply for an Australian visa along with my family, hoping for protection. I knew many minorities from Sri Lanka sought refuge in Australia when they feared death and sought safety. In December, we lodged the application, and in January we received the visa. We arrived in Australia by [February], 2016.

32.However, I did not mention my intentions of seeking protection in Australia to my wife's sister as she was busy taking care of her two young children and we were residing at her residence, and I wanted to figure it out on my own. In the meantime, I asked family and friends about the process of seeking permanent help, but I never got direct guidance. As time passed, I met a Sri Lankan bus driver, and we communicated about my situation. I had already built a relationship with him as I would frequently take the [bus], and we were familiar with each other. He guided me to an agent who vaguely assisted in the process. I was misinformed that we had to submit all documents together at the start of the process as we won't be able to submit documents in future and I was trying to get any information possible supporting my protection claim. My wife and I were trying to get any documents available from Sri Lanka, they had to be translated to English and sent here, which took a while. It was extremely difficult. My wife and I did most of the work on our own despite English our third language. My wife and I wrote our claim briefly as we were told to keep it-brief and lodged it soon. Despite English being our third language, my wife and I managed to write up a brief claim of what happened, with limited detail due to our limited knowledge in English and guidance and lodged the application through our agent. However, she betrayed us by saying that she was unable to help us further as the interview got closer.

2016– present: Continued threats and damage of my property

33.Despite everything that has happened, even after my family and I left Sri Lanka in 2016, the Bodu Bala Sena and the political party remain in power. They have continued to commit crimes against innocent Muslims, who are easy targets and powerless. I felt a sense of relief that my family and I were safe here, even though it was selfish of me while I saw my fellow people struggling in the media without receiving help and justice. In November 2021, the same group of people targeting me broke into my house in [Location 3] and caused damage. When the tenants at the time attempted to complain, the police did not take any serious action. Even during my time in Australia there have been several times when these people had come and asked my in-laws, people at my shop and tenants when my family and I would be returning.

34.During our time in Australia, my mother, my wife's mother, and my brother passed away. Despite having an emergency option and how hard it was not being able to be there for their last moments, my family and I refused to go back even for a very short period due to the fear of being persecuted by the members of Bodu Bala Sena and their allies.

35.The fear for my family's safety was constant. Each threat, each attack, and each moment of terror left us scarred. I lived in constant anxiety, always looking over our shoulders, fearing the worst. Moving to Australia was a desperate attempt to find safety and peace, a chance to escape the relentless persecution that threatened to destroy us. The fear of returning to Sri Lanka has intensified recently due to a significant and alarming development: the leader of the Bodu Bala Sena, Gnanasara Thera, was recently released from prison. This individual, known for inciting anti-Muslim sentiments and orchestrating attacks against minority communities, now has the freedom to resume his activities on a larger scale …

Applicant’s supporting documentation

1. In addition to their respective identity documents the applicants provided the following additional material to the Department and Tribunal in support of their application:

   (a)Applicant’s statutory declaration dated 30 July 2024.[21]

   [21]  Applicant’s statutory declaration AAT file No. 2111727 Doc ID 13209246

   (b)Second applicant’s statutory declaration dated 30 July 2024.[22]

   [22]  Second applicant’s statutory declaration AAT file No. 2111727 Doc ID 13209246

   (c)Third applicant’s declaration dated 30 July 2024.[23]

   [23]  Third applicant’s statutory declaration AAT file No. 2111727 Doc ID 13209246

   (d)Fourth applicant’s declaration dated 30 July 2024.[24]

   [24]  Fourth applicant’s statutory declaration AAT file No. 2111727 Doc ID: 13209246

   (e)Police report dated 5 April 2016.[25]

   [25]   Police report dated 5 April 2016, AAT file No. 2111727 Doc ID 13209246

   (f)Applicants’ submissions dated 30 July 2024.[26]

   [26] Applicants’ submissions dated 30 July 2024, AAT file No. 2111727 Doc ID 13209246

   (g)[Location 4] Deed dated 1 December 2015.[27]

   [27]  [Location 4] Deed dated 1 December 2015, AAT file No. 2111727 Doc ID 13209251

   (h)Police statement dated 17 November 2015 with English translation.[28]

   (i)[Location 3] Property Deed dated 27 November 2013.[29]

   (j)Business name Ordinance dated 4 January 2012 with English translation.[30]

   (k)Statement by [Location 3] tenants, undated.[31]

   (l)Statement by [Mr E].[32]

   (m)Death certificate [Mr C] with English translation.[33]

   (n)Death certificate [Mr B] with English translation.[34]

   (o)Death certificate [Ms D] with English translation.[35]

   (p)[Mr A] medical report.[36]

   (q)Letter from United National Party (UNP) dated 29 August 1989 with English translation.[37]

   [28]  Police statement dated 17 November 2015, AAT file No. 2111727 Doc ID 13209251

   [29]  [Location 3] Property Deed dated 27 November, 2013 AAT file No. 2111727 Doc ID 13209246

   [30]  Business name Ordinance dated 4 January 2012, AAT file No. 2111727 Doc ID 13209251

   [31]  Statement by [Location 3] tenants AAT file No. 2111727 Doc ID 13209246

   [32]  Statement by [Mr E] AAT file No. 2111727 Doc ID 13209246

   [33]  Death certificate [Mr C] AAT file No. 2111727 Doc ID 13209251

   [34]  Death certificate [Mr B] with English translation AAT file No. 2111727 Doc ID 13209251

   [35]  Death certificate [Ms D] AAT file No. 2111727 Doc ID 13209251

   [36]   [Mr A] report AAT file No. 2111727 Doc ID 13209251

   [37]  Letter from UNP dated 29 August 1989, Dept File No. [Reference 1] Doc ID [number]

COUNTRY INFORMATION

1. In accordance with Ministerial Direction No. 84 of 24 June 2019 under s 499 of the Act, the Tribunal also had regard to the country information assessments prepared by DFAT. The Tribunal has referred to the current DFAT report on Sri Lanka dated 2 May 2024 (the DFAT report).[38] In particular, the Tribunal has considered those parts of the DFAT report as detailed in annexure ‘A’ of these reasons.

   [38]   DFAT report on Sri Lanka dated 2 May 2024

ASSESSMENT OF CLAIMS AND FINDINGS

1. The issue in this case is whether the applicant is a person to whom Australia owes protection obligations pursuant to s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Credibility

1. When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[39] Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant.[40]

   [39] Section 5AAA of the Act

   [40] MIEA v Guo (1997) 191 CLR 559 at [596]; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at [169–70]

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[41] Care must be taken not to exclude from consideration the totality of some evidence where a portion of it could reasonably have been accepted. The Tribunal is aware that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears.

   [41] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at p. 482

4. If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[42] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.

   [42] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196]

5. In this case the applicant’s evidence was generally vague and lacking in detail despite the third and fourth applicants pointing out to the applicant that he needed to provide further detail in relation to the threats he received in Sri Lanka. While the Tribunal accepts that it may be difficult for the applicants to recall past events, given the passage of time and/or the fact that it may be painful and distressing to recall past events, it did expect the applicant to have a particular recollection of certain actions or events. Given the stressful nature of such situations the Tribunal would have expected him to have had a clear (but not perfect) recollection of the threats he received. Instead, the applicant was only able to describe the events in the broadest of terms without any specific detail. As such, the Tribunal has some reservations about the applicant’s evidence in relation to his claims for protection.

1. In addition, the second applicant’s evidence was vague and lacking in detail. She became emotional when describing events in Sri Lanka prior to her departure for [Country 1], but nevertheless conceded that upon her return to Sri Lanka from [Country 1], she did not have any fear of being seriously or significantly harmed. Therefore, given the contradictory and vague nature of the second applicant’s evidence, the Tribunal places little weight on her evidence.

Applicant’s claim as a refugee

A past fear of persecution is not sufficient

1. A past fear may be a relevant consideration in determining if the applicant has a well-founded fear of persecution. The applicable approach under the Act is whether the applicants are outside their country owing to a present, well-founded fear of persecution for a reason that falls within the scope of s 5J(1) of the Act and the are unable or unwilling, due to the present and well-founded fear, to avail themselves of the protection of that country.[43]

Applicants’ relevant grounds

(a) Ethnicity

[43]  Section 5H(a) of the Act (see as to Art1A(2) of the Convention Savvin v MIMA [1999] FCA 1265 (Dowsett J, 13 September 1999) at [61]–[62], referring to Chan v MIEA (1989) 169 CLR 379, s 5H of the Act)

1. The applicant claims that he has a well-founded fear of persecution if he is returned to Sri Lanka, pursuant to s 5(1)(a) of the Act, because of his ethnicity as a Tamil. In Calado v MIMA[44] the Court in considering the expression of ‘race’ in the context of the Convention stated that it was appropriate to consider the ‘popular’ understanding of the term that accords with a person’s physical appearance, skin colour and ethnic origin.[45] The court stated:

   There can be no single test for the meaning of the expression “race” but the term connotes considerations such as whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of colour, and national or ethnic origins.

   [44]  Calado v MIMA (1998) 81 FCR 450 at 455

   [45] ibid

2. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR Handbook) also refers to the expression of ‘race’ in the broadest of terms stating:[46]

   68. Race, in the present connexion, has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as “races” in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population. Discrimination for reasons of race has found
   

   [46]  Chan v MIEA (1989) 169 CLR 379 at 392, per Mason CJ. UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [68], condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution.

3. The applicant and the second applicant both gave evidence that they are ethnic Tamils. Based on the applicants’ evidence the Tribunal accepts that the applicants are ethnic Tamil as claimed. As such, the Tribunal accepts their claim falls within s 5J(1)(a) of the Act by reason of their race.

(b) Religion

1. The applicant claims that he is a person who has a well-founded fear of persecution if he is returned to Sri Lanka, pursuant to s 5H and s 5(1)(a) of the Act, by reason of his religion as a Muslim. An overview of the scope of ‘religion’ as a refugee ground can be found in the UNHCR Handbook. It states:

   The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right include the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.

   Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.

   Mere membership of a particular religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.[47]

   [47] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [71]–[73]

2. Therefore, the question of whether the applicants have a well-founded fear of being persecuted because of their religion may arise in many ways including the application of religious-based laws, departing from orthodox religious beliefs or transgressing social mores, conversion, apostasy[48] and mixed marriage. It will often depend on the motivation of the persecutor. In circumstances where an applicant’s fear is because of the application of generally applicable laws, it will depend upon any persecutory intent, the nature of the laws or to the way they are applied.[49]

   [48] To be an apostate does not require conversion from one faith to a different faith but does require abandonment or rejection of the first faith: WZAOO v MIAC (2012) 134 ALD 332 at [12] and W161/01A v MIMA [2002] FCA 285

   [49]   See VCAD v MIMIA [2004] FCA 1005 (Kenny J, 4 August 2004) at [35]

3. Often persecution for reasons of religion will involve prohibition against, restrictions on, or punishment for, a particular religious practice.[50] Whether an applicant has a well-founded fear of being persecuted for reasons of religion requires an assessment in the light of all the circumstances, including, where relevant, the ‘central tenets’ of the religion, how the applicant would be likely to manifest his or her religious beliefs and the likelihood of that manifestation attracting a persecutory reaction from the authorities.[51]

   [50]   Wang v MIMA (2000) 105 FCR 548; Woudneh v Inder (unreported, Federal Court of Australia, Gray J, 16 September 1988); MIMA v Zheng [2000] FCA 50 (per Hill, Whitlam & Carr JJ, 10 February 2000)

   [51]   Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001)

1. In this case the applicants claim they have a well-founded fear of persecution by being harmed by extremist anti-Muslim groups if they are returned to Sri Lanka. Based on the applicant’s evidence, the Tribunal accepts that the applicants are Muslim as claimed and as such the Tribunal accepts their claim falls within s 5J(1)(a) of the Act by reason of their religion.

Systematic and discriminatory conduct

1. Pursuant to s 5J(4)(c) of the Act, persecution must involve systematic and discriminatory conduct. The issue of systematic conduct involved in the persecution claimed was considered in Chan v MIEA[52] in reference to the Convention. McHugh J stated:

   The notion of persecution involves selective harassment ... [It is not] a necessary element of “persecution” that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, she is “being persecuted” for the purposes of the Convention.

   [52]  Chan v MIEA (1989) 169 CLR 225 at 429–430. His Honour supported this proposition by reference to Periannan Murugasu v MIEA (1987) 217 ALR 17, where Wilcox J had stated at 23 ‘[t]he word “persecuted” suggests a course of systematic conduct aimed at an individual or at a group of people. It is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances.

2. In VSAI v MIMIA[53] Crennan J, when considering s 91R(1)(c) of the Act, stated that where conduct is shown to be serious harm when assessing if it is ‘systematic conduct’, it would be wrong to require the applicant to show anything more than the act is deliberate or
   

   [53]  VSAI v MIMIA [2004] FCA 1602 at [53]

   [54] ibid

   pre-meditated. It would not be necessary to show that the conduct is widespread or frequently recurring. Nevertheless, the frequency of an act may be relevant in determining whether conduct amounts to ‘serious harm’ if the isolated incidents can be described as involving minimal or low-level harm.[54]

3. In addition, pursuant to s 5J(4)(c) of the Act, it is generally considered that the discriminatory element of persecution involves an element of motivation on the part of the persecutor. In Ram v MIEA,[55] Burchett J said:

   Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

   [55]  Ram v MIEA (1995) 57 FCR 565 at 568

4. However, it has been held that while persecution will necessarily involve an element of motivation on the part of the persecutor, and will often be motivated by enmity,[56] it is wrong to require an attitude of ‘enmity’ or ‘malignity’ before persecution can be made out.[57]

The applicant’s well-founded fear

[56]  MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [72]

[57]  Chen Shi Hai v MIMA (2000) 201 CLR 293 at [33]–[35], [60]–[61]; Applicant A v MIEA (1997) 190 CLR 225 as per Gummow J at 284

1. In Chan v MIEA[58] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[59]

   [58] (1989) 169 CLR 379 at 396

   [59] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ

2. The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case, based on the evidence of the applicant, the Tribunal accepts that the applicant has a subjective fear of being harmed or being persecuted if he returns to Sri Lanka.

3. However, to hold a ‘well-founded fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J [60] stated:

   “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.

   [60]  Chan v MIEA (1989) 169 CLR 379 per Dawson J at p. 397

1. In MIEA v Guo, the Court stated that: [61]

   Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is ‘well-founded’ when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

   [61]  MIEA v Guo (1997) 191 CLR 559 at 572; cfMIEA v Wu Shan Liang (1996) 185 CLR 259 at 293

2. Having considered the applicant’s evidence together with the available country information, for the reasons expressed below, the Tribunal accepts that the applicant has a well-founded fear of persecution on a subjective and an objective basis for the reasons mentioned in s 5J(1)(a) of the Act. 

The applicant as an ethnic Tamil

1. The applicant claims that as an ethnic Tamil there is a real chance they will be seriously harmed if they are returned to Sri Lanka. The applicant’s evidence was that he initially travelled to [Country 1] in or about 1999[62] for the purposes of avoiding the conflict between the Sri Lankan authorities and Liberation Tigers of Tamil Eelam (the ‘Tamil Tigers’) (LTTE). The applicant’s evidence was that on [Date] 1988 his brother [Mr B] and his cousin with other supporters of the UNP in his village [Location 2], Kandy, were murdered by members of the Janatha Vimukthi Peramuna (JVP). The applicant claims that because of the violence in 1990 he ‘fled’ to [Country 1]. The applicant’s evidence was that while he was in [Country 1] in 1996 his brother-in-law, [Mr C] was killed by members of the Sri Lankan Army.  

   [62]  Applicant’s Protection Visa Application dated 3 May 2016 (statement attached); Dept File No. [Reference 1] Doc ID [number]

1. The applicant returned to Sri Lanka in or about 2000 and married the second applicant. The applicant and the second applicant then returned to [City, Country] where the third applicant was born in [Year]. The second applicant then returned to Sri Lanka in or about 2004 and the applicant returned to Sri Lanka in or about 2007.

2. The applicant and the second applicants’ evidence to the Tribunal was that while the conflict between the LTTE and the Sri Lankan authorities continued upon their return to Sri Lanka, they did not feel threatened because the conflict was centred in and around the east and north of the country. Their evidence was that the conflict was not as bad near their home in Kandy in the central part of the country. As a result, both the applicant and the second applicant conceded that they did not fear being seriously or significantly harmed as ethnic Tamils upon their return Sri Lanka.

3. The country information reports that JVP was founded in 1965 by Rohana Wijeweera with the intention of creating a socialist state in Sri Lanka.[63] Its refers to itself as being a Marxist party but has mostly been a Sinhala Nationalist Party.[64] The party was formerly a revolutionary movement and was involved in two armed uprisings against the government of Sri Lanka, in 1971 and 1987–89. In 1987–89 JVP exploited the arrival of the Indian Peace-keeping Force and the widespread nationalist sentiments of large sections of the Sinhalese people to terrorise both the state and sections of the community that were opposed to it. The JVP operated out of multiple cells countrywide, but generally based around Kandy in the central province. Government forces captured and killed Wijeweera and his deputy in November 1989 in Colombo and by 1990 had captured and killed the remaining JVP leaders. In addition, it has detained approximately 7,000 suspected JVP members. While it’s reported that the government won a decisive military victory, there are credible accusations of brutality and extrajudicial methods. Due to the conflict with the LTTE, the number of deaths during the insurgency is uncertain, however its reported that the death toll exceeded 60,000.[65] In addition, its reported[66] that many people took advantage of the chaos to instigate deadly local feuds.

   [63]   The Hindu ‘On the Janatha Vimukthi Permuna -Explained’ 7 March 2024 by Nirupama Subramanian; ibid

   [65]  ibid; Asian Survey Vol 28 No. 2 A survey of Asia in 1987; Part II pp. 137–147 ‘Sri Lanka in 1987: Indian Intervention and Resurgence of the JVP’ by Bryan Pfaffenberger

   [66]  ibid

4. The LTTE was an armed separatist group that waged a 26-year war against the Sri Lankan state.[67] It was comprehensively defeated by the state forces in 2009 and no longer exists as an organised entity.[68] It is not known to have carried out any operations since the time of its defeat.[69] While it reports that some sympathy remains for the LTTE, the Tamil community has abandoned militancy and is committed to the political process in advancing Tamil interests.[70]

   [67]  DFAT report at p. 34

   [68]  DFAT report at p. 35

   [69]   ibid

   [70]   ibid

5. Based on the available country information the Tribunal accepts the applicant’s evidence that his brother [Mr B] and his cousin were killed with other supporters of the UNP by JVP members as claimed. In addition, it accepts that his brother-in-law was killed by government forces in 1996 as claimed.

6. The country information reports[71] Tamils are the second largest ethnic group in Sri Lanka being 15.3 per cent of the population. It’s reported[72] that most Tamils are Hindu, although a sizeable proportion are Christian. The Tamil language has official status in Sri Lanka.  It’s reported[73] that Tamils actively promote Tamil interests through a range of political parties. For example, a coalition known as the Tamil National Alliance (TNA) won 10 seats in parliament at the 2020 parliamentary elections. In addition, there are Tamils in the Wickremesinghe Ministry – being Minister of Fisheries Douglas Devananda and Minister of Water Supply and Estate Infrastructure Development Jeevan Thondaman – as well as the Attorney-General Sanjay Rajaratnam. While it’s reported that the Rajapaksas pursued policies hostile to the Tamil community, including undermining the reconciliation processes and allowing impunity for alleged serious human rights violations from the war era, it’s reported[74] that the level of state hostility toward Tamils has eased under the Wickremesinghe Government. It’s reported[75] that President Wickremesinghe has taken a more conciliatory approach having committed to the creation of a Truth and Reconciliation Commission and the implementation of the 13th amendment to the constitution to establish Provincial Councils with authority over a range of administrative functions. However, despite the President’s commitment, little has been done to establish the Provincial Councils.[76] In addition, despite the Bill on Commission for Truth, Unity and Reconciliation being gazetted on 1 January 2024, it reported[77] that it lacks transparency in relation to the consultation process and the
   

   [71]   DFAT report at p. 23

   [72]   ibid

   [73] ibid

   [74]  ibid

   [75]  The Diplomat ‘Sri Lankan President Pledges Full Implementation of 13th Amendment’, 6 February 2023 by Rathindra Kuruwita,

   [76]  The Diplomat ‘Sri Lanka’s Reconciliation Efforts Get Stuck in the 13th Amendment, Again’, 27 July 2023 by Rathindra Kuruwita, ICJ, ‘Sri Lanka: New Bill to establish “Commission for Truth, Unity and Reconciliation” lacks credibility and unlikely to bring accountability’ dated 12 January 2024, http:/

   non-acceptance by victim communities.

7. The country information reports[78] that currently some Tamils may be subjected to being monitored by the state due to their past association with the LTTE or because of their advocacy on human rights issues, including participation in protests for missing persons. Nevertheless, despite some Tamils continuing to face human rights challenges, its reported[79] that the level of state harassment and mistreatment has decreased significantly since 2015 to the extent that Tamils do not feel as threatened.[80] As a result, DFAT has assessed that Tamils are at low risk of official discrimination on ethnic grounds.[81]

   [78]   ibid

   [79]  DFAT report p. 23

   [80]   ibid

   [81]  DFAT report at p. 24

8. The Tribunal has considered the applicant’s and the second applicant’s evidence that they did not fear being seriously harmed upon their return to Sri Lanka in 2007 and 2004 respectively together with the available country information. As such, the Tribunal finds that there is no real chance that the applicant will be seriously harmed if he is returned to Sri Lanka because of any actions of the LTTE or the JVP.

1. In addition, based on the available country information the Tribunal finds that there is no real chance that the applicant will be seriously harmed for being an ethnic Tamil as claimed.

The applicants as Muslims

1. The applicant claims that there is a real chance he will be seriously harmed if he is returned to Sri Lanka because he is a Muslim. The applicant claims that in Sri Lanka he was threatened by members of ‘Sinha Le’, ultranationalist Sinhala–Buddhist groups. The applicant claims that as a Muslim person if he is returned to Sri Lanka, he will be seriously harmed by members of the extremist Sinhala–Buddhist groups, including Sinhala Le and Bodu Bala Sena (BBS).

2. The country information reports[82] that 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). It reports that approximately 98 per cent of the Muslim population in Sri Lanka are Sunni.[83] Muslims are active in business, industry, the civil service and politics with some individuals having attained significant wealth and senior positions in government (including current Minister of Foreign Affairs Ali Sabry) and the judiciary (current Supreme Court Justice A. H. M. D. Nawaz).[84] In addition the Muslim community operates madrassas (places of learning, such as schools and universities) and political parties such as the Sri Lanka Muslim Congress. It has been reported that these organisations have come under scrutiny following the Easter Sunday attacks in April 2019.[85]

   [82] DFAT report at p. 27

   [83] ibid

   [84] ibid

   [85]  ibid

3. The country information[86] reports that BBS is a ultranationalist 
   

   [86]  Applicant’s Statutory Declaration dated 30 July 2024 at [4], AAT File No 2111727 Doc ID13209246

   [87]  The Conversation, ‘Violent Buddhist extremists are targeting Muslims in Sri Lanka’, 26 April 2018, ibid

   [89]      Asia News, ‘Four years in Prison and no bail for extremist Sri Lankan Buddhist monk’, by Melani Manel Perera, 4 March 2024, founded by monks Kirama Wimalajothi and Galagoda Aththe Gnanasara. The BBS claims that Muslims are a threat to Buddhism and that its purpose is to ‘strengthen and defend the Buddhist religion’ and its heritage.[87] Its leaders amongst other matters claimed that Muslims were ‘taking over’ the country due to their high birth rate and accusing Muslim organisations of funding international terrorism through Halal-certified food industries.[88] It has been responsible for  organising violence against Muslims in various parts of the country. The BBS entered politics in 2012 with a Buddhist-nationalist ideology and agenda. In 2021, the Sri Lankan government appointed Galagoda Aththe Gnanasara to head a Presidential Task Force to study the implementation of the concept, ‘One country; One law’, and prepare a draft Act for that purpose.[89] However, in March 2024, the Colombo High Court sentenced him to 4 years in prison for defamatory comments against Islam made in late 2016.[90]

4. In addition the country information reports that ‘Sinha Le’ is a grassroots Sinhala– Buddhist nationalist movement that first gained notoriety in or about 2014 through a sticker and social media[91] campaign that went viral.[92] The Sinha-Le group later formed its own political party, known as ‘Sinhala Jathika Balamuluwa’,[93] for the purposes of safeguarding  the identity of the Sinhala people and ‘regenerate the supremacy and pride of the Sinhala people’.[94]

   [91]   Sri Lanka Brief, ‘Advent of Sinha-le Movement Reawakening the racial Monster’, 14 January 2016, rilankabrief.org/advent-of-sinha-le-movement-reawakening-the-racial-monster/

   [92] ROAR MEDIA, ‘IT’S TIME TO STOP PRETENDING SINHA-LE IS ANYTHING BUT RACIST’, 31 AUGUST 2016,   Tamil Guardian, ‘New Sri Lankan party to regenerate ‘Supremacy of Sinha people’, 5 January 2016,

It’s reported[95] that tensions between Muslims and Buddhists have increased since the end of the civil war in 2009 with clashes of violence between the two groups. The exceptional powers granted to the military and the police under the Sri Lankan Prevention of Terrorism Act (PTA) during the civil war have become ‘normalised’ and used to manage and contain political activity in the north of the country. These powers have had broader effect of creating formal and informal networks of power[96] that  have given rise to police and military power and influence leading to a militarised approach to governance[97] and the potential of criminalising political dissent.[98] It has been argued that the Presidency of Gotabaya Rajapaksa cemented the influence of far-right

[95]   DFAT report at p. 27

[96]   East Asia Forum, ‘Sri Lankan election and authoritarian populism’, 27 November 2019,  ibid

[98]  ibid

[99]  ibid

ethno-nationalist groups with links to Sri Lanka Podujana Peramuna  (SLPP) such as the BBS which has been involved in attacks on Muslims in open defiance of legal institutions.[99]

In early 2018 rumours of a Muslim restaurant mixing a sterilisation drug in its food to make Sinhalese women infertile caused Sinhala–Buddhist nationalists to conduct a range of attacks against Muslim-owned residences, shops and a mosque in Ampara. [100] In addition in March 2018 further clashes between Sinhalese and Muslims occurred in Kandy following a report of a Sinhalese man being assaulted by a group of Muslims. 

[100]  THE CONVERSATION, ‘VIOLENT BUDDHIST EXTREMISTS ARE TARGETING MUSLIMS IN SRI LANKA’, 26 APRIL 2018, DFAT REPORT AT P. 28.

It’s reported that since the Easter Sunday terrorist attacks in April 2019, Muslims have been unfairly targeted by the authorities including large-scale arrests under the PTA and other official discriminatory practices.[101] A State of Emergency imposed immediately following the Easter Sunday attacks target the Muslim community by prohibiting clothing that covered a person’s face in public. It’s reported that some shops, hospitals, courts, and universities prevented women wearing the hijab (which does not cover the face) from entering their premises. The State of Emergency lapsed on 22 August 2019.

[101]  ibid

After the Easter Sunday attacks it’s reported[102] that anti-Muslim rhetoric and violence increased. 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.[103] In March 2020, the government adopted a mandatory cremation policy for

[102]  ibid

[103] ibid

[104] ibid

COVID-19-related deaths. Islam forbids cremation, and the policy was highly traumatic for Muslims. It was reversed in February 2021.[104]

It’s reported that despite being able to generally practice their faith freely, Muslims continue to experience harassment, intimidation, and disinformation.[105] The threat of arrest under the PTA has been used to threaten the community. Muslims in the Eastern Province report that they have continued to experience official discrimination, including in the allocation of livelihood support programs by (Tamil) local government officials in Batticaloa and in public sector employment.[106] The Muslim community continues to be monitoring for signs of extremism.[107] It’s reported that those who are at a high risk of being monitored are families of those being held in detention for suspected terrorism offences under the PTA, those previously arrested under the PTA, community activists and organisations that receive funding from Islamic countries.[108] Monitoring can take the form of telephone calls, visits and physical surveillance.[109]

[105] ibid

[106] ibid

[107] ibid

[108] ibid

[109] ibid

It’s reported[110] that 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. In 2022 and 2023, there were reports of threats, discrimination, and violence against the Muslim community, including property damage and propaganda. Sinhala–Buddhist nationalist groups, particularly the BBS, continue to target Muslims, especially though hate speech, with the in-country sources reported that state protection from these groups was inadequate.[111] DFAT assesses that Muslims face a moderate risk of official and societal discrimination, in the form of harassment and monitoring by security forces and organised disinformation campaigns by Sinhalese nationalist groups, but generally face a low risk of official or societal violence.[112]

[110] ibid

[111] DFAT report at p. 29

[112] ibid

The applicant’s evidence was that in Sri Lanka he experienced threats and harm from members of the extremist Sinhala–Buddhist groups, including Sinhala Le and BBS. The Tribunal has carefully considered the evidence presented by the applicant in relation to each incident in which he claims he was threatened or harmed. For the reasons expressed below has considerable difficulty in accepting his evidence in relation to each of his claims.

(a)The [Road 1] property

The applicant’s evidence about the threats he received from the ex-army officer about the sale of the [Road 1] property was vague, lacking in detail and at times illogical. Despite the Tribunal’s request that the applicant provide more details about the circumstances and timing of the threats he claims to have received from the ex-army officer, the applicant was not able to provide any specific detail. In addition, despite the direction by the third and fourth applicants for him to provide more detailed evidence about the threats he claims to have received, the applicant was not able to provide any specific detail of the threats made by an ex-army officer in relation to the sale of his property. 

The applicant’s evidence was that in or about 2007 upon his return to Sri Lanka from [Country 1] he purchased a commercial property in [Road 1], Kandy ([Property 1]) which he rented out as [a business 1]. In or about 2008/2009 the applicant made it known that he wanted to sell [Property 1]. The applicant’s evidence was that the property was worth approximately 30 million rupees (approximately AUD150,000.00). As a result, he was approached by a customer of the [business 1] who expressed an interest as acting as broker for the property. The applicant’s evidence was that the customer was friendly at first but later revealed himself to be an
ex-army officer who had ‘underworld’ connections and knew politicians from SLPP. The applicant’s evidence to the Tribunal was that he would speak to the army officer at the property around twice a week.

The applicant claims that the army officer tried to force him to sell his property at a cheaper price of around 10 million rupees (approximately AUD50,000.00) to members of the ‘Sinha Le’ who later became part of the BBS.[113] The applicant’s evidence was that he sold the property in or about 2011 to a popular business in Sri Lanka known as [Business name][114] for ‘close to’ 20 million rupees (approximately AUD100,000.00).

[113] Applicant’s Statutory Declaration dated 20 July 2024 at [4]

[114] Third applicant’s statutory declaration dated 30 July 2024 at [4]

In circumstances where the country information reports that Sinha Le emerged in 2014, after the formation of BBS and after the date upon which the applicant sold [Property 1], the Tribunal has considerable concerns about the applicant’s evidence about the threats he claims to have received in relation to the sale of [Property 1].

In addition, the applicant claimed that the ex-army officer had close connections with underworld figures. However, no independent evidence was provided in relation to the

[115]The Sunday Observer, ‘Week of Masqueraders’ by Jayakody, Rasika, 8 October 2017

[116] DFAT report at p. 8

[117] ibid

[118] VOA, ‘Sri Lanka’s contentious Rajapaksa scion enters presidential race’, by Agence France- Presse, 7 August 2024, officer’s activities with underworld figures or the identity of any alleged underworld figures with whom he was associated. The applicant claimed that the ex-army officer knew politicians in the SLPP. However, the Tribunal notes that the country information reports that the SLPP was founded in 2016 (5 years after [Property 1] was sold). It became a base for members of the United People’s Freedom Alliance loyalty to its former leader Mahinda Rajapaksa.[115] In 2019, Gotabaya Rajapaksa, as the SLPP candidate, was elected President. However, he was forced to reign in July 2022 due to protests (known as Aragalaya (‘the Struggle’)) conducted over the government’s mismanagement of the Sri Lankan economy.[116] As a result Parliament elected Wickremesinghe as President for the purpose of restoring the Sri Lankan economy. It’s reported[117] that upon becoming President, Wickremesinghe acknowledged the ethnic and religious diversity of Sri Lanka and in particular the importance of finding solutions to the issues facing the Tamil community including land and economic development. In August 2024 the SLPP nominated Mahinda Rajapaksa's son, Namal Rajapaksa, as its candidate in the upcoming presidential election to be conducted on 21 September 2024.[118] 

Therefore, in circumstances where the applicant claims to have received threats from the ex-army officer in or about 2008/09 it was not clear to the Tribunal how the ex-army officer knew politicians in the SLPP at a time when the party had not been formed. The Tribunal notes that the SLPP was previously known as the Sri Lanka National Front (SLNF) and Our Sri Lanka Freedom Front (OSLFF). As such, the Tribunal is prepared to accept the applicant was referring to the SLPP in its previous form in and around 2008/2009, being the SLNF. However, even if this is the case, the applicant did not provide any evidence of the ex-army officer having influence with politicians within the party (including the identity of any relevant politicians and their position within the party) to the extent that he was harmed in Sri Lanka by any such people or that  there would be a real chance the applicant will be seriously harmed if he was returned to Sri Lanka as claimed.

The applicant claimed that the ex-army officer threatened and intimidated him by telling the applicant he had been part of the ‘white van’ kidnapping operations in Sri Lanka. The applicant’s evidence was that the ex-army officer said that if the applicant refused to sell [Property 1] as instructed, he would harm the applicant. However, the applicant did not provide the Tribunal with any independent evidence of the ex-army officer having been involved in the ‘white van’ operations as claimed. In addition, despite his refusal to sell the property as demanded, there was no evidence that the ex-army officer took any action to harm the applicant, in circumstances where the applicant resisted selling the property through the ex-army officer for about 2 years before selling it to a third party in 2011 at a higher price.

The applicant claims that from 2008 to 2009 he avoided harm by distancing himself from the ex-army officer by moving to Negombo and [Town 1] and travelling to Kandy from time to time to visit his family. The applicant’s evidence was that he mainly stayed with a friend he knew from [Country 1] in Negombo, approximately 2 hours from Kandy. In addition, he stayed with family members in [Town 1], approximately [distance] from Kandy. His evidence was that because he was staying with family members, he was not able to stay any longer than one or 2 nights at a time in [Town 1]. Nevertheless, despite living elsewhere the applicant’s evidence was that he continued to receive verbal threats from the ex-army officer about selling the property. The applicant did not provide any specific details of him being threatened by the ex-army officer while he was living Negombo and [Town 1]. In addition, he did not provide any independent evidence of having been threatened by the ex-army officer verbally as claimed.

Finally, despite moving to live in Negombo and [Town 1], the applicant’s evidence was that he did not tell his family about the threats to sell the property. It appears from the applicant’s evidence that he did not give any reason to his family why he had moved from his family home and business to live up to 2 hours away. The second applicant confirmed that the applicant lived elsewhere from 2008 to 2009 as claimed and did not inform her of the ex-army officer’s threats. The Tribunal finds it difficult to accept that in circumstances where he claims to have feared for his own safety, the applicant would move out of the family home and away from his business for an extended period without providing any explanation to his wife and children.

Based on the applicant’s evidence and the documentary evidence provided, the Tribunal accepts that the applicant purchased [Property 1] in 2007 as claimed. It also accepts that the applicant made it generally known that he wanted to sell the property in or about 2008/09 and that he sold the property in 2011 as claimed. However, for the reason expressed above, it does not accept he was threatened or pressured by an
ex-army officer to sell the property to associates of an anti-Muslim group as claimed.

In circumstances where the applicant’s evidence about the threats he received from the ex-army officer was vague and lacking in detail, the Tribunal does not accept he was threatened by the ex-army officer as claimed. The applicant did not provide specific evidence of when or where he received threats from the ex-army officer, and he did not provide any independent evidence of the ex-army officer being associated with underworld figures or politicians or being involved in the white van operations as claimed. Finally, the fact that the applicant did not inform his wife and family of the ex-army officer’s threats indicates that he did not hold any fear of him or his family being seriously harmed because of the sale of the property.

As a result, the Tribunal does not accept the applicant’s evidence that he was pressured to sell the property to anti-Muslim groups as claimed. As a result, the Tribunal finds that there is no real chance the applicant will be seriously harmed if he is returned to Sri Lanka due to the sale of [Property 1].

(b)The [Road 2] property

1. The applicant’s evidence was that after the sale of [Property 1] he purchased [a business 1] located on [Road 2], Kandy (Property 2]) with two other partners known as [E]and [F]. The applicant claims that because he had not sold [Property 1] in accordance with the demands made by the
   

   [119] Applicant’s Statutory Declaration dated 30 July 2024, AAT File No. 2111727 DOC ID 13209246

   ex-army officer, the members and associates of the Sinha Le became furious. The applicant claims that because he sold [Property 1] the members or associates of Sinha Le and BBS started to demand money from him. He claims that they would come to [Property 2] or contact him over the telephone for the purposes of threatening him and demanding that he pay them money.[119]

2. The applicant’s evidence was that in or about 2011 members or associates of the Sinha Le initially approached the applicant at [Property 2] demanding that he pay for the cost of an anti-Muslim political meeting they were conducting. The applicant claims that 8 or 9 ‘boys’ (ranging in age from 20 years to 35 years old) came into the store demanded that he pay the cost of the food for the meeting (approximately 500 rupees or AUD2.50).[120] The applicant’s evidence was that he paid the money in cash. The applicant’s evidence to the Tribunal was that he was aware that those who threatened him at [Property 2] were members of the Sinha Le because they carried the organisation’s logo on their T-shirts when they came into the [business 1]. However, the Tribunal notes the country information reports the Sinha Le was not established until 2014, that is, after the time the applicant claims its members came to see him in [Property 2] in 2011.  

   [120] Xe Convertor: 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. There is a small Shi’a community, comprising mostly Dawoodi Bohras (fewer than 3,000 people), the majority of whom live in Colombo. A small number of Muslims follow the Sufi tradition. Muslims predominantly speak Tamil as their first language.

   3.30 Muslims are active in business, industry, the civil service and politics. Some have attained significant wealth and senior positions in government (including current Minister of Foreign Affairs Ali Sabry) and the judiciary (current Supreme Court Justice A.H.M.D. Nawaz). Muslim political parties represent the community’s interests in parliament. The Muslim community operates madrassas, although these have come under scrutiny following the Easter Sunday terrorist attacks perpetrated by individuals from Kattankudy, a Muslim town near Batticaloa, in April 2019.

   3.31 Tensions between Muslims and Buddhists have increased since the end of the civil war in 2009, and there have been sporadic episodes of violence between the two groups. In February 2018, Sinhala Buddhist nationalists conducted arson attacks against
   Muslim-owned residences, shops and a mosque in Ampara, triggered by rumours a Muslim restaurant was mixing ‘sterilisation drugs’ in its food to make Sinhalesewomen infertile. Further clashes followed in March 2018 in Kandy, following reports of an assault of a Sinhalese man by a group of Muslims; in response, the government imposed a
   10-day State of Emergency. DFAT is not aware of more recent incidents of this kind.

   3.32 Muslims report they have been unfairly targeted since the Easter Sunday terrorist attacks in April 2019, including in the form of large-scale arrests under the PTA and other official practices perceived as discriminatory. 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. According to media reports at the time, some shops, hospitals, courts and universities prevented women wearing the hijab (which does not cover the face) from entering their premises. 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. In March 2020, the government adopted a mandatory cremation policy for COVID-19 related deaths. Islam forbids cremation, and the policy was highly traumatic for Muslims. It was reversed in February 2021.

   3.33 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.

   3.34 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.

   3.35 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 Kattankudy. In-country Muslim sources in the Eastern Province reported that they continued to experience official discrimination, including in the allocation of livelihood support programs by (Tamil) local government officials in Batticaloa and in public sector employment. They also reported that, in land disputes between Tamils and Muslims, local government officials invariably sided with Tamils. Muslims reported that a requirement introduced in March 2021 for all imported Islamic religious textbooks (including the Quran) to be vetted by the Ministry of Defence for extremist content prior to release was discriminatory, on the basis the requirement did not apply to other religions.

   3.36 In-country Muslim sources reported ongoing monitoring, including for signs of extremism. Those that face the highest risk of monitoring included: the families of people in detention for suspected terrorism offences under the PTA and their legal representatives; people previously arrested under the PTA but since released; community activists, particularly those that engage with representatives of the international community; and organisations that receive funding from Islamic countries. 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.

   3.37 In March 2021, the government of Gotabaya Rajapaksa issued regulations establishing a deradicalisation program for individuals ‘holding violent extremist religious ideology’. Under these regulations, the Attorney General could recommend individuals who instigate ‘communal disharmony’ to undergo rehabilitation of between one and two years in lieu of prosecution. Muslims considered the regulations specifically targeted at their community, and civil society organisations filed fundamental rights petitions to the Supreme Court challenging their validity. In August 2021, the Supreme Court issued an interim order suspending the regulations pending a final ruling. The Supreme Court declared the regulations legally invalid in November 2023, including because they were deemed to be in violation of the fundamental rights to equality, freedom of thought, conscience and religion, and freedom from arrest and detention.

   3.38 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.

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

   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.

   …

   1. Protection visas – criteria provided for by this Act

   …

   1. 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.

   …

   
   

   [126] BBC News, ‘S Lanka civilian toll ‘appalling’’, 13 February 2008, news.bbc.co.uk/2/hi/south_asia/7243595.stm; BBC News, ‘Fears grow over Tamil Abductions’, Saroj Pathirana, 26 September 2006, news.bbc.co.uk/1/hi/world/south_asia/5382582.stm